Simukahi v Attorney General [2014] SBHC 71; HCSI-CC 146 of 2012 (8 July 2014)

HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 146 of 2012

BETWEEN:

MATHIAS SIMUKAHI
Claimant

AND:

ATTORNEY GENERAL
(Representing the Minister for the Ministry of Fisheries and Marine Resources)
Defendant

Date of Ruling: 8 July 2014

Mr. S. Balea for the Claimant
Mr. D. Damilea for the Defendant

RULING

1. This is an application by the Claimant for the court to enter default judgment against the Defendant. The Claimant filed a claim against the Defendant, but the Defendant neither filed a response nor a defence as required under the courts Civil Procedure Rules.
   
2. The Claimant is a business man who lives at Luaniua Village in the Lord Howe Islands in 2010. He owns a retail store and purchased beche-de-mers from his customers on the islands.
   
3. He knew when he purchased the beche-de-mer that the Government, through the Ministry of Fisheries and Marine Resources, (the Ministry) had imposed a ban on the sale and export of beche-de-mer. The harvesting of this sea resource constitutes the main source of income for the residents of the Islands in order to purchase food and other things, such school fees for their children.
   
4. On 24 June, 2010, a compliance team, comprising of public officers from the Ministry of Fisheries and Marine Resources ("the Ministry") carried out an operation on Luaniau Island. The team seized 2612 kilograms of beche-de-mer from the Claimant's house. This operation and seizer of beche-de-mer was done under section 38 (a) (III) of the Fisheries Act (No. 6) of 1998 ("the Act")
   
5. The authorized officers from the Ministry interviewed the Claimant with regard the seized beche-de-mer at the Ministry on 26 June, 2010. This interview was conducted with the Claimant in the presence of his solicitor, Mr. Samuel Balea. An interview report was then compiled and forwarded to the office of the Attorney General for Legal advice.
   
6. On 10 November, 2010, Legal Advice on the case was received through a memorandum to the Permanent Secretary of the Ministry of Fisheries, advising him to compound the offender under the relevant provisions of the Act.
   
7. A charge in the form of letter was sent to the Claimant to pay $100,000.00 for breaching the Fisheries Act. The Claimant considered this penalty to be too high, and lodged an appeal to the Minister for Fisheries, seeking leniency and the reduction of this penalty. The appeal was successful as the penalty was reduced to $20,000.00. The Claimant paid the money to the Ministry of Finance, which issued a receipt. The case was settled out of court through the payment of this penalty.
   
8. The receipt was not exhibited to the court because the former Minister of the Ministry at the material time removed the relevant file which contained all documents and correspondences on this case.
   
9. The Claimant seeks a default judgment to be entered against the Defendant and orders that:
   
   • (a) The $20,000.00 being paid as the purported compounding fine by the Defendant minister be repaid.
     
   • (b) Damages for loss of property (beche-de-mer) and for the breach of statutory duty by the Defendant Minister to be assessed, together with 5% interest from 24 June, 2010;
     
   • (c) Compensation for unlawful deprivation of property in breach of sections 3 and 8 of the Constitution pursuant to section 18 of the Constitution, be assessed, together with 5% interest from 24 June, 2010; and
     
   • (d) Exemplary and aggravated damages for the oppressive arbitrary actions of the said Minister, to be assessed; and
     
   • (e) Costs on indemnity basis.
     
10. The Defendant confiscated the Claimant's beche-de-mers under Regulation 13 A of the Fisheries (Amendment) Regulations 2009. Regulation 13 A prescribes: " A person who catches and retains, sells, expose for sale, exports or 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 both".
    
11. Even though the above Regulation prescribes criminal offences, the Minister has power to compound offences committed under the Act. This was the option taken by the Minister with the consent of the Claimant. That consent was demonstrated by his payment of the penalty of $20,000.00 to the Defendant alluded to above. This was one of the reasons advanced by the Defendant for not filing a defence to the claim by the Defendant. Another reason was whether the court would grant damages to the Claimant for the illegal act of being impossession of beche-de-mer for sale or export.
    
12. The Claimant was well aware of the ban on beche-de-mer. The concern by the Defendant was whether the court would assist the Claimant to obtain compensation for his illegal acts. This concern touches on the principle of public policy. Lord Mansfield enunciated that principle in Holman v. Johnson (1775) 1 cowp. 341,343: "The objection, that a contract is immoral or illegal as between plaintiff and Defendant, sounds at all times very ill in the mouth of the Defendant. It is not for his sake, however, that the objection is ever allowed; but it is founded on general principles of policy, the defendant has advantage of, contrary to real justice, as between him and the plaintiff, by accident, if I may say so. The principle of public policy is this; ex dolo malo non oritur actio. No court will lend its aid to a man who founds his cause of action upon an immoral or illegal act. If, from the plaintiff's stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the court says he has no right to be assisted. It is upon that ground the court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. So if the plaintiff and the defendant were to change sides, and if the defendant to bring his action against the plaintiff, the later would then have the advantage of it; for where both are equally in fault, potior est conditio defendentis".
    

" The Latin is perhaps not unimportant in appreciating the principle and the reason for it. "Dolo malo" can be translated accurately as "a dirty trick". "Turpies" means shameful, wicked, disgraceful".

(Quoted in Shelly. v. Paddock and Another [1977] 2 W.L.R 877.

13. The Defendant has urged this court to strike out the claim. There is no proper base before the court to deal with such issue at this time. For the meantime, the application by the Claimant is refused. Order accordingly.
    

THE COURT