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Malaita Maasina Forum Trust Board Inc. v Attorney General [2014] SBHC 12; HCSI-CC 362 of 2013 (29 January 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction


Between:


MALAITA MAASINA FORUM TRUST BOARD INC.
1st Claimant


And:


HUGO K'CLAY (on behalf of bech-de-mer owners of Pelau Community, Lord Howe, Malaita Outer Islands)
2nd Claimant


And:


RICHARD MOKA (on behalf of bech-de-mer owners of Luaniua Community, Lord Howe, Malaita Outer Islands).
3rd Claimant


And:


ATTORNEY GENERAL (representing the Minister for Fisheries & Marine Resources and the Commissioner of Police)
1st Defendant


And:


JERRY HONG SUN
2nd Defendant


And:


XU QIANG
3rd Defendant


Mr. C. Ashley for the 1st, 2nd and 3rd Claimants/Respondents.
Mr. J. Muria (Jr) for the 1st Defendant/1st Applicant.
Mr. D. Marahare for the 2nd Defendant/2nd Applicant.


Date of hearing: 20 January 2014.
Date of Judgment: 29 January 2014.


RULING


Apaniai, PJ:


Introduction.


  1. There are two applications before the court. Both are made under Rule 9.75 of the Solomon Island Courts (Civil Procedure) Rules 2007 ("Rules"). The first application was filed by the Attorney General, 1st Defendant, on 2 October 2013. In that application, the Attorney General seeks a dismissal of the claim on the ground that it is frivolous and vexatious and discloses no reasonable cause of action.
  2. The second application was filed by Jerry Hong Sun, 2nd Defendant, on 16 December 2013. In that application, the 2nd Defendant also seeks a dismissal of the claim also on the same grounds as those put forward by the Attorney General in his application for dismissal.
  3. Mr. Xu Qiang, the 3rd Defendant, has not taken part in this application as he is no longer a party to the proceeding, a notice of discontinuance having been filed on 28 October 2013 discontinuing the case against him. The remaining defendants are therefore the Attorney General as 1st Defendant and Jerry Hong Sun as 2nd Defendant. They are referred to hereinafter as the 1st Applicant and the 2nd Applicant respectively while the 1st, 2nd and 3rd claimants are hereinafter referred to as the 1st, 2nd and 3rd Respondents respectively.
  4. The claim relates to claim of ownership of beche-de-mer harvested from Luaniua and Pelau in the Lord Howe or Ong Tong Java group of islands of the Malaita Outer Islands. The background to the claim and these applications is set out below.

Background.

  1. To the communities of Luaniua and Pelau, beche-de-mer is a major source of income. It is said that beche-de-mer is in fact the only source of income for those two communities. It is also said that on the world market, the price of beche-de-mer is quite lucrative.
  2. Beche-de-mer is not only found in the Ong Tong Java group of islands. It is found almost everywhere in Solomon Islands and the rural people have found it to be a good source of income to meet school fees and other necessities of life. Because of its lucrative price, it is harvested continuously in the country all year round.
  3. While the beche-de-mer is a good source of income, its harvesting has reached a stage where the Ministry of Fisheries & Marine Resources ("Ministry") has deemed it necessary to protect the commodity from over-harvesting and extinction. The Minister has therefore introduced on 7 May 2009 a regulation called the Fisheries (Amendment) Regulations 2009. It is an amendment to the parent Regulation called the Fisheries Regulations. The amendment was done by adding to the Fisheries Regulations a new provision called Regulation 13A which provides as follows:-

"13A. A person who catches and retains, sells, exposes for sale, exports or is in possession for export, any beche-de-mer commits an offence and is liable on conviction to a fine not exceeding $100,000.00 or to imprisonment for a term not exceeding 4 months, or to both".


  1. The new Regulation, which has effectively banned the harvesting of beche-de-mer, came into force on the 7 May 2009 and is said to be still in force until now.
  2. Despite the ban imposed by Regulation 13A, the communities of Luaniua and Pelau, with full knowledge of the ban, continued to harvest beche-de-mer around their islands for sale. They say they needed the money to pay for school fees and food. Mr. Ashley admitted on their behalf that the beche-de-mer was harvested during the period of the ban.
  3. On the 16 August 2012, the Attorney General, having learned about the illegal harvesting of the beche-de-mer by the Pelau and Luaniua communities, wrote a letter to the 2nd and 3rd Respondents requesting them to bring the beche-de-mer to Honiara to be seized by the Ministry. This, the 2nd and 3rd Respondents did. They brought the beche-de-mer to Honiara and on arrival, the Ministry formally confiscated the beche-de-mer. The 2nd and 3rd Respondents were also asked to pay a fine of $200,000.00, which they did. As a result of the payment of the fine, no criminal charges were laid against them.
  4. The Ministry then issued an advertisement seeking expressions of interest from overseas buyers to buy the confiscated beche-de-mer. The Respondents say that a bid from Four Oceans Sea Products Trading Company of Hong Kong ("Company") was accepted by the Ministry for $51,206,118.00. They also say that according to the Ministry the total value of the beche-de-mer is only $15,654,729.00. They say, however, that the true value of the beche-de-mer was $35,551,389.00 and that the weight of the beche-de-mer was 35,553.9kg.
  5. In their claim, the 2nd and 3rd Respondents say that they are the owners of the beche-de-mer and that, had they sold the beche-de-mer themselves to the Company for the amount tendered by that Company ($51,206,118.00), they would have made a profit of $46,085,506.20, being the total proceeds of $51,206,118.00 less 10% export duty. They therefore claim the $46,085,506.20 as damages. They also claim exemplary punitive damages of $5,120,611.80 for arbitrary, oppressive and unconstitutional conduct on the part of the Ministry and the Police and pecuniary damages of $20,785,873.20. They also claim costs on indemnity and standard basis.
  6. The claim was filed on 30 September 2013 and served on the 1st Applicant, the 2nd Applicant and the 3rd Defendant that same day.
  7. The 3rd Defendant had filed a response and defence, but not the 1st and 2nd Applicants. Instead, the 1st and 2nd Applicants filed their applications to strike out the claim as frivolous and vexatious and disclosing no cause of action.
  8. The 1st Applicant's application was filed on 2 October 2013. An initial application by the 2nd Applicant was filed on 18 October 2013 by Bird & Hiele law firm. However, that application was struck out on 23 October 2013 due to failure by Bird & Hiele to appear at the hearing of the application. On 21 November 2013, DNS Lawyers replaced Bird & Hiele as solicitors for the 2nd Applicant. A fresh application was then filed by DNS Lawyers on behalf of the 2nd Applicant on 16 December 2013. Both applications were fixed for hearing on 20 January 2014.

The 1st Applicant's case.


  1. In his submission, Mr. Muria, counsel for the 1st Applicant, submits that the claim is frivolous and vexatious for two reasons. These are, first, that the claim is a claim for judicial review under Rule 15.3 disguised as a Category A claim. He says that, had a judicial review claim been filed, it would have been out of time under Rule 15.3.8 of the Rules. The second reason is that the beche-de-mer, the ownership of which is claimed by the 2nd and 3rd Respondents in this proceeding, was illegally harvested and therefore it would be contrary to public policy for the court to entertain the claim by the Respondents.
  2. While I agree that the claim should have been categorised as a Category C claim under the Rules, I do not agree that failure to correctly categorise the claim is fatal to the claim. Rule 2.15 allows the court at any time before trial to change the category if it sees it necessary to do so either on application by a party or on its own initiative. In any event, Rule 15.3.8 applies to judicial review seeking quashing orders and not judicial review seeking declarations. This claim does not seek quashing orders. It seeks certain declarations and damages, hence, Rule 15.3.8 does not apply. This ground fails.
  3. Mr. Muria's submission in regards to the issue of illegality is that in this claim, the Respondents are asserting ownership of the beche-de-mer and, consequently, the proceeds of the sale of the beche-de-mer by the Applicants. Mr. Muria submits that it is not disputed that the beche-de-mer was harvested by the Respondents in breach of Regulation 13A and, as such, it would be contrary to public policy for the court to entertain the claim by the Respondents. He argues that to do so would put the court in a position where it would be seen as lending its aid to claimants who founded their cause of action on illegal acts. He cited the case of Holman v Johns[1] ("Holman"), applied in Knight v Attorney General[2] ("Knight"), in support of his proposition.
  4. Mr. Marahare supports Mr. Muria on this point.

The Respondents' reply.


  1. In reply to Mr. Muria's submission, Mr. Ashley concedes that the beche-de-mer was harvested by the 2nd and 3rd Respondents in 2009 and 2010 and was done in contravention of regulation 13A of the Fisheries (Amendment) Regulations 2009. However, he submits that the illegality of the actions by the Respondents do not divest them of the proprietary interests in the beche-de-mer. He further submits that the Respondents were not charged with any offence under the Fisheries Act 1998 and that the so-called fine of $200,000.00 imposed upon the Respondents was improper in law as the Respondents were never charged with, nor convicted of, any offence under the Fisheries Act or Regulations to justify the imposition of the fine. He submits that under section 52(1) of the Fisheries Act 1998, the proceeds of the sale of the beche-de-mer should be returned to the Respondents as owners of the beche-de-mer as no prosecution was brought against them under the Act as a result of the alleged contravention by the Respondents of regulation 13A.

Discussions.


  1. It is clear to me that the remedies sought in this case are premised on a claim of ownership of the beche-de-mer by the Respondents. Unfortunately, I do not agree that the Respondents are, or were at any time, the owners of the beche-de-mer in the light of paragraph (b) of the Declaration in the Preamble to the Constitution. The Preamble provides:-

"We the people of Solomon Islands,...


DECLARE that


(a) ...;

(b) the natural resources of our country are vested in the people and government of Solomon Islands;"


  1. The effect of the Declaration is that the natural resources of Solomon Islands, including the beche-de-mer, are owned by the people and government of Solomon Islands corporately and not individually. In other words, the beche-de-mer is not owned by the Respondents and their communities individually. They are owned by the people and government of Solomon Islands although the Respondents and their communities, being part of the people of Solomon Islands, are entitled to harvest them as long as it is lawful for them to do so.
  2. Hence, as the Respondents' claim of ownership is based on the fact that they were the ones who harvested the beche-de-mer, they did so in contravention of the law and no proprietary interest or right in the beche-de-mer can pass to them. The ownership still remains with the people and government of Solomon Islands. That settles the issue of ownership.
  3. However, the fundamental issue I am asked by the 1st Applicant to decide on this application is not so much about the ownership of the beche-de-mer but whether this court should lend its aid to the Respondents who have admitted harvesting the beche-de-mer in contravention of Regulation 13A.
  4. On that issue, it is clear that the court cannot lend its aid to the Respondents. The following authorities show that it would not be proper for the court to do so.
  5. In the case of In re An Arbitration Between Mahmoud & Ispahani[3] ("Mahmoud"), an order called Seeds, Oil and Fats Order 1919, made under the Defence of the Realm Regulations, had made it illegal for a person without the necessary license to buy or sell or deal in any of the articles specified in the schedule to the Order except under and in accordance with the terms of his license. Linseed oil was one of the articles specified in the schedule. The Order has also made it an offence to infringe the Order.
  6. During the operation of the Order, the plaintiff entered into a contract for the sale of a quantity of linseed oil to the defendant. The plaintiff had the necessary license but the defendant did not have any. It appeared that the defendant had lied to the plaintiff that he had a license. On delivery of the linseed by the plaintiff in accordance with the contract, the defendant refused to accept delivery citing illegality of the contract as his excuse for the refusal.
  7. On a claim by the plaintiff for damages for non-acceptance of the linseed oil, the court held that as the defendant had no license, the contract of sale was prohibited by the Order and was therefore an illegal contract and, as such, no claim could be founded on the contract.
  8. At p. 725, Bankes L.J. cited with approval the principle of law established in Bartlett v Vinor[4] in which Holt CJ said "what is done in contravention of the provisions of an Act of Parliament, cannot be made the subject-matter of an action." Bankes L.J. also cited with approval the statement by Le Blanc, J, in that same case (at page 597) where his lordship said "It is an established principle, that the court will not lend its aid in order to enforce a contract entered into with a view of carrying into effect anything which is prohibited by law."
  9. A similar decision was arrived at in the case of George v Greater Adelaide Land Development Company Ltd[5] ("George"). In that case, it was unlawful under section 23 the Town & Country Planning Act 1920 for a person to subdivide any land into allotments or to offer for sale or to sell, or to convey, transfer or otherwise dispose of any existing allotment or parcel of land except in accordance with the provisions of the Act. Section 44 of that Act imposed a penalty on any person acting in contravention of section 23.
  10. The plaintiff (Greater Adelaide Land Development Company Ltd) had entered into a contract for the sale of vacant plots of land to George (defendant) for 1,070 pounds contrary to section 23 of the Act. The defendant had already made part payment of 156 pounds for the plots of land. He refused to make any further payment as a result of which the plaintiff brought an action against the defendant for balance of the purchase price.
  11. The defendant pleaded illegality of the contract as defence asserting that the contract contravenes various statutes including the Town & Country Planning Act 1920. He also counterclaimed for the reimbursement of the 156 pounds he already paid under the contract.
  12. The court held that the contract was illegal and invalid, the principle being that a transaction expressly or impliedly forbidden by statute is unlawful. The court further held that any monies paid by the defendant under the illegal contract cannot be recovered.
  13. Knight v Attorney General[6] ("Knight") is a local case on the point. In that case, the plaintiff had pleaded guilty to, and was convicted of, a charge of purchasing gold from persons not holding a gold dealers license, contrary to section 63 of the Mines & Minerals Act. The amount of gold illegally purchased was 765g. That amount was confiscated by the police. The plaintiff filed an application for the determination of the ownership of the 765g of gold.
  14. The court held that the 765g of gold are owned by the government of Solomon Islands pursuant to Declaration (b) of the Preamble to the Constitution and section 2(1) of the Mines & Minerals Act (Cap. 42). The court also approved the statement by Lord Mansfield in Holman v Johnson[7] ("Holman") where he said:

"The principle of public policy is this: ... No court will lend its aid to a man who founds his action upon an immoral or illegal act...."


  1. Applying these principles of law to the present case, it is clear that this court cannot entertain this claim, which is founded on illegal acts by the Respondents and the communities they represent. I am satisfied this claim is frivolous and vexatious and discloses no reasonable cause of action.

Standing of the 1st Respondent.


  1. That should have been the end of this case. However, Mr. Marahare for the 2nd Applicant has raised further issues in his submission, one of which relates to the standing of the 1st Respondent to be a party to these proceedings. He says that the 1st Respondent has no interest in the beche-de-mer claimed by the 2nd and 3rd Respondents in this proceeding and therefore it has no standing to sue the Applicants.
  2. The 1st Respondent in this proceeding is the Malaita Maasina Forum Trust Board Incorporated ("MMF"), a charitable organisation registered under the Charitable Trusts Act (Cap.55). The statement of the case in this proceeding had not sufficiently described the 1st Respondent. It simply described the 1st Respondent as "... also the first claimant in High Court Civil Case No. 290 of 2013 ....".
  3. Civil Case No. 290 of 2013 ("290/13") is a case between the same three claimants (ie, Respondents) in this proceeding (as claimants) and the Attorney General (as the sole defendant). In that case, MMF is described as:

"... a registered Trust Board under the Charitable Trusts Act for its members that include the Second and Third Claimants. As a registered Trust Board, the First Claimant may commence and continue proceedings for and in the interests of its members and the Trust Board's objectives."


  1. Unfortunately, a copy of MMF's constitution has not been produced in evidence to enable the court ascertain whether or not the MMF does indeed have that power neither is there any evidence that the 2nd and 3rd Respondents are members of the MMF to invoke MMF's right of representation as alleged.
  2. However, even if accepting that the MMF does have the power to represent the 2nd and 3rd Respondents, it is clear that MMF is not claiming any proprietary interest in the beche-de-mer that is the subject matter of this proceeding and therefore whether it should be a party to this proceeding is an issue that needs to be investigated.
  3. It is clear from the rest of the statement of the case to the Respondents' claim that the sole purpose of including MMF as a party in this proceeding is simply to represent the 2nd and 3rd Respondents. Mr. Ashley who, it is common knowledge, is the Secretary General of the 1st Respondent, appears in this proceeding as, so he asserts, "spokesman" for the Respondents. Mr. Marahare, in his written submission, has raised the question of Mr. Ashley's right to be heard in this proceeding. I understand his submission to be that Mr. Ashley is performing the role of a legal practitioner under the guise of "spokesman" and as he has no practicing certificate he should not be heard in this proceeding. However, the issue has not been pursued during verbal submissions and so I say nothing more about it. For the purposes of this application, I have decided to treat, and hear, Mr. Ashley as "spokesman" for the Respondents. Any decision on the issue whether Mr. Ashley is acting as a legal practitioner must wait for another day.
  4. In regards to the issue of the standing of the 1st Respondent (MMF), Mr. Marahare's submission is simply that the 1st Respondent claims no proprietary interest in the bech-de-mer which is the subject matter of this proceeding and therefore it is not necessary for it to be a party to the proceeding.
  5. The principles governing the issue of locus standi are clear. It has always been an important limitation on the availability of remedies that they are awarded only to those who have sufficient standing. The law starts from the position that remedies are correlative with rights and that only those whose rights are at risk are eligible to come to court and seek remedies and no one else. To do otherwise would open the flood gates for much litigation. It is not in the public interest that that should be so[8]. This simply means that only persons whose rights are under threat have standing to seek redress. Otherwise, they do not have that standing.
  6. In this proceeding, for the 1st Respondent to remain a party, it must show that its rights are been threatened by the conduct of the Applicants and to show how those rights are been threatened. Unfortunately, I cannot see how the 1st Respondent's rights, and what rights (if any), are being threatened by the Applicants' conduct. In my view, the 1st Respondent has not standing to be a party to this proceeding.
  7. Rule 3.7 of the Rules gives the court the power to order that a party to a proceeding is no longer a party if that person's presence is not necessary to enable the court to make a decision fairly and effectively in the proceeding or if the court considers that for some other reason the person should not be a party to the proceeding. I am satisfied that the 1st Respondent's presence in this proceeding is not necessary to enable the court to make a decision fairly and effectively in the proceeding. The fact that the 2nd and 3rd Respondents are already parties to the proceedings makes it unnecessary for the 1st Respondent to become another party. However, in the light of my decision to strike out this proceeding, it is not necessary for me to make an order to that effect.

Orders:


  1. In the light of the above discussions, I am satisfied that the applications by the 1st and 2nd Applicants ought to be granted and, accordingly, I grant both applications. The orders of this court are:-

[1] That the claim by the 1st, 2nd and 3rd Claimants/Respondents against the 1st and 2nd Applicants/Defendants in this proceeding is struck out, and dismissed, on the ground that the claim is frivolous and vexatious and discloses no reasonable cause of action; and,


[2] That the 1st, 2nd and 3rd Respondents pay the costs of the 1st and 2nd Applicants on standard basis to be assessed if not agreed.


THE COURT


James Apaniai
Puisne Judge

[1] (1775) 1 Cowp 341.
[2] [2005] SBHC 6; HCSI-CC 349 0f 2004 (6 May 2005).
[3] [1921] 2 KB 716.
[4] [1813] EngR 417; 1 M. & S. 593, at 596.
[5] [1929] 43 CLR 91.
[6] [2005] SBHC 6; HCSI-CC 349 of 2004 (6 May 2005).
[7] (1775) 1 Cowp 341.
[8] Kongungaloso Timber Company Ltd v Attorney General [1999] SBHC 39; HC-CC 229 of 1998 (19 April 1999).

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