Dettke v Attorney General [2015] SBHC 107; HCSI-CC 288 of 2014 (15 December 2015)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona, PJ)

Civil Case No. 288 of 2014

BETWEEN:

HONOURABLE HEINZ BODO DETTKE
Claimant

AND:

ATTORNEY-GENERAL
Defendant
(Representing the LEDERSHIP CODE
COMMISSION)

Date of Hearing: 16th October 2015
Date of Ruling: 15th December 2015

Mr G. Suri for the Claimant
Mr S. Banuve for the Defendant

RULING ON APPLICATIN FOR DETERMINATION ON POINT OF LAW

Faukona, PJ: A claim for declaratory relief under Chapter 15.9 S.I Courts Civil Procedure Rules was filed on 27th August 2014. In the claim, the Claimant seeks four declaratory reliefs and two subsequent reliefs plus costs.

2. The Claimant is currently a Member of Parliament for North West Guadalcanal Constituency of Guadalcanal Province. He was charged for failing to carry out the obligations imposed by Section 94 (1) of the Constitution. That he placed himself in a position of conflict of interest and in which by exercise of his official duties is compromised. Further by his conduct demean his positon with no respect and allow his integrity to be questioned. As a result there is no confidence in the government of Solomon Islands.

3. The charge emerged as a result of the allegations of the conduct by the Claimant who was at that material time a Minister of Crown responsible for Ministry of Forestry and Research.

4. At that material time Taiarata Integrated Forest Development Co. Ltd was in possession of a log felling licence over taiarata concession area. It contracted Pacific Venture (SI) Ltd to engage in logging operations.

5. There were allegations that both Companies entered irapaina customary land and harvested and extracted logs which they did not possess felling licence over. However, their activities were purposely to construct access road from the log pond to their licensed concession area which is beyond the boundary of irapaina land.

6. At some stage a person by the name of Philip Waihunu wrote a complaint letter dated 22nd September 2010 and addressed to the Minister for Forestry and Research and copy to the Commissioner of Forest in respect of trespass into haunihuro a'asi te'ete'e customary land by the two logging concern Companies. The last paragraph of the letter urged the Minister to deal with the case to avoid disturbances.

7. On 30th September 2010, the Commissioner of Forest issued a show cause letter to the Director of Taiarate Integrated Forest Development Co. Ltd. In that letter the Commissioner required the Company to make representation as to why it's felling licence TIM 2/46 should not be suspended. The letter was carbon copy to the contractor, Pacific Venture Ltd.

8. On 22nd October 2010, the Claimant as the Minister for Forestry and Research, by an internal minute requested the Commissioner of Forest to seize the logging companies log ships, tug boats, barges and machineries. The log ships were MV Pacific Banghu and MV Spring Lake.

9. On the same date the Commissioner of Forest suspended the logging operation of Taiarata Integrated Forest Development Co. Ltd and Pacific Venture (SI) Ltd.

10. The following day being 23rd October 2010, the Claimant as a Minister called an urgent meeting at 2:00pm. Those who attended the meeting were the Minister himself, Minister of Finance, the Attorney-General, the Permanent Secretary and the Commissioner of Forest.

11. By letter dated 23rd October 2010, the Commissioner of Forest wrote to the Captain of MV Pacific Banghu and directed him to off load logs loaded on that ship at Si'ua sufferance port.

12. By memorandum of 24th October 2010, the Commissioner of Forest requested the Commissioner of Police for police assistance in the execution of the seizure notice.

The issues:

13. This application is argued on two fronts. One under Section 40 of the Constitution which conferred responsibility upon a Minister of Crown to exercise general direction and control over the Department. Secondly, whether the Leadership Code Commission in investigating the complaints about the Claimant had done so independently and impartially.

14. There seems to be a missing link in reporting between the two institutions in relation to who actually lodged the complaint, in particular allegations of threat against the Commissioner of Forest. What mode of reference was used whether by way of a report, letter or memo and if so on what date? Nevertheless, despite lack of clarity I will ensure there is sequential and systematic order which will harmonize intriguing reading.

Minister's power under S.40 Constitution:

15. Under S.40 the Minister has the responsibility for administering a government department. In doing so exercising direction and control over the department. Such direction and control is supervised under the supervisory power of a Permanent Secretary.

16. By his submissions, Mr Suri quote from Collins Concise Dictionary which define the meanings of the words "general", "direction" and "control". There is no question about the meanings. The word "general" means overall, "direction" means management, control or guidance, and "control" means to command, direct or rule.

17. With such a bulky function of controlling and management of the department, can the Minister exercise such power, in all circumstances ensuring the Commissioner of Forests does his work, as conferred upon him by Sections 33 and 39 of the Forest Resources Timber Utilisation Act (FRTA Act).

18. The Solicitor General argues otherwise and referred to the case of Korovulavula V PSC (vehicle licence case). The Court stated,

"A Minister must use statutory powers entrusted to him for the General purposes of the empowering statute and for the public good. It cannot be said that giving specific directions to a licensing authority in respect of individual cases could positively be in accord with the general purpose of the statute which has specifically entrusted to a particular official..."

19. Before crucially assessing the powers of the Minister, it is prudent to note, initially, whether the allege trespass and extraction of logs was carried out within irapaina land or a'asi te'etee land, or whether haunihuro is part of irapaina customary land. It would appear the subject land of this cause of action is irapaina land. The Counsels have not well defined in their submissions the relationship between the two customary lands. As it is, it is open for presumption in relation to subject matter land.

The Complaint and Commissioners response:

20. In response to the complaint letter of 22nd September 2010, the Commissioner of Forest issued a show cause letter dated 30th September 2010, to the Director of Taiarata Integrated Forest Development Co. Ltd and copy to Pacific Venture. The show cause letter was issued premised on S.39 (1) of FRTU Act, where the Commissioner has satisfied himself that Taiarata Integrated Forest Dev. Co. Ltd had breached clause 3 of its licence condition and seriously breached provisions of the FRTU Act. The letter also clearly stated that the Companies made representations within 14 days after being served with the notice.

21. Further to that, the Commissioner of Forest seeks further advice from the Attorney-General in respect of Taiarata Integrated Forest Dev. Co. Ltd and Pacific Venture logging operations per his letter dated 28th September 2010.

22. On 21st October 2010 the Commissioner wrote to the Controller of Customs to delay clearance of the boat MV Pacific Banghu whilst awaiting conclusion of their investigations. On 22nd October 2010, the Commissioner of Forest suspended the logging operation of Taiarata Integrated Forest Dev. Co. Ltd.

23. Whilst the Commissioner had responded by issuing a show cause notice, facilitating investigations, seeking further advice and suspending the felling license, the Minister wrote to him by letter dated 23rd October 2010, to issue seize notices to discipline both companies including log ships, tug boats, barges and machineries. Seizure of properties is provided for under S.33 of the FRTU Act.

24. At that stage it was unclear whether representations by the two Companies were made in response to show cause notice. There was mention by the Commissioner of Forests that Taiarata Integrated Forest Dev. Co. Ltd had made representation on 13th October to his show cause notice. However, in what form the presentation was made was not disclosed. Neither a copy of that presentation was attached as material evidence. All I noted are two letters from Taiarata Integrated Forest Dev. Co. Ltd. One was addressed to the Hon. Prime Minister and dated 27th September 2010, which exposed threat by the Minister of Forests. The second letter was dated 26th October 2010 and addressed to the Chairman of the Leadership Code Commission. The subject of that letter was seizure of log ship and complaint of conflict of interest by the Minister. It is also noted that there was an appeal to the Magistrates Court filed on 29th October 2010 in response to the seizure notice issued.

The assessment of threat and facts of reality:

25. The facts surrounding the events from 22nd September 2010 when the Complaints were lodged about illegal logging on haunihuro aasi tee'tee land were absurd. Five (5) days after the Complaint letter was received, it was alleged that on 27th September 2010, the Minister threatened one James Lee of Pacific Shipping Hire Limited, that he will issue orders to halt loading on the ground of illegal operations. The complaint about the threat was contained in a letter addressed to the Hon. Prime Minister. The question whether the Minister was aware of such compliant cannot be verified, because there was no copy addressed to him. But copies were sent to the Chairman of Leadership Code Commission, the Commissioner of Forest, the Chairman of Government Caucus and etc. There could have been no doubt the Minister would have been made aware of the complaint before the seizure notice was issued and before he advised the Commissioner of Forest on 22nd October 2010 to issue the seizure notice.

26. Apart from that, there is little evidence from the materials that Tarairata Co. Ltd ever made representation to the Commissioner of Forest within 14 days as required. There was mention of it by the Commissioner in his letter of 22th October 2010, but no material evidence produced. Apparently Taiarato Integrated Forest Co. Ltd responded by letters of complaint and threat to the Prime Minister. That could have been absolutely defiance of the request, which had the support of the Act according to the processes provided therein.

27. In such circumstances, what would have been expected of the Minister as a person exercising general direction and control over the department? There were complaints against him to the Prime Minister, the Caucus and the Leadership Code Commission. And nothing was ever directed to him, neither a copy of those complaints were copied to him. Of course the tone of his letter of 22nd October 2010, to the Commissioner, twenty two days after the issuant of the notice to show cause, may have expectedly contain strong advice or instructions. When he said, "please make the necessary seizure notice," in my opinion, there is no element of threat existed in its entirety when directing the Commissioner of Forest. But it means work is work and must be done accordingly. There is no time for leisure and laxity as the situation reflected. In my assessment those words do not amount to any threat that will bring disrepute to the integrity of the Commissioner at all. In fact it is an honest instruction in the midst of the circumstance of this case at that time.

28. Indeed the offences are serious. The Commissioner himself agreed they were, so he issued the notice to show cause on his own accord. However, the Company may have failed to respond within 14 days. Hence by suggesting immediate disciplinary action by issuant of seizure notice, was an instruction by a Minister who actually perform the powers conferred upon him by section 40 of the Constitution, as the head who controls the Department of Forestry. I do not seem to see any threat within the line of those words. In fact that instruction was in the best interest of the public as expounded by the Fiji case of Korovuleaula V PSC[1], of which the Counsel for the Defendant refers to.

29. If that is not enough; were the words used by the Claimant, as the Minister responsible for Forestry, per his memo to the Commissioner of Forests dated 23rd October 2010, for the service of the seizure notice, appeared to be, or in the nature of threat which the Commissioner did not appreciate. This question ought to be considered in the light of the facts existed, or prevail at that time.

30. Apart from facts in paragraph 3 above it had been conceded and accepted that the breaches by Taiarata Integrated Forest Dev. Co. Ltd was serious and had defied the Act. The instruction by the Claimant was an administrative cautionary statement to ensure the Commissioner attended a meeting with other dignitaries including himself to consider seizure notice to be served on the holder of the feeling licence. I must accept those facts as being relevant which prompted cautionary statement to be issued.

31. To be specific, the cautionary statement was used as an option if the Commissioner failed to attend the meeting at 2:00pm on 23rd October 2010. It was not used to threaten the Commissioner to issue seizure notice. In reality the Minster did not use his Office to further his benefit by instructing the Commissioner to seize all forest produce and machineries/equipment and cancelled the felling licence of Taiarata Integrated Forest Dev. Co. Ltd and Pacific Venture. What had transpired was by the last paragraph of the Ministers letter of 23/10/2015 addressed to the Commissioner, it clearly stated that "failure to attend will leave me no option but to instruct the Permanent Secretary to impose disciplinary actions for your subordination". The words disciplinary action used were not reference to or connected with the seizure notice. In fact the seizure notice was issued on 23rd October 2010 after the consultative meeting was held on the same date which the Commissioner and the Minster attended with others. Therefore, it would be unjustified to conclude that the decision to issue the seizure notice was the sole decision of the Minster. Hence, there is no element of threat detected in the last paragraph of the Minister's letter of 23rd October 2010.

Powers and functions of the Leadership Code Commission:

32. The Leadership Code Commission was established under S.4 of Leadership Code (Further Provisions) Act. Misconduct in Office by leaders is outline in S.8 of the Act. S.12 defines the words "Conflict of interest". Part IV, Sections 18 and 19 provide for complaints and investigations. S.18 provides any person may make a complaint to the Commission concerning any alleged or suspected misconduct in office of a leader. Section18(5) states that on completion of an investigation by a person duly authorised under subsection (2) he shall submit his findings to the Commission, who shall there upon make such determination as provided for in section 21.3 subsection 2.

33. It would appear there were two complaint letters which the Leadership Code Commission was in receipt of. Premise on them investigations were commenced. Both letters of complaint were written by Taiarata Integrated Forest Dev. Co. Ltd Officials. One was a complaint letter against the Minister dated 27th September 2010; the other was a letter of Complaint also against the Minster dated 26th October 2010. There was no complaint lodged by the Commissioner of Forest concerning any threat by the Minister on him.

34. The first letter of complaint specifically concern with the issue of conflict of interest. The facts as related reveal that the Minister of Forests advised Mr James Lee of Pacific Shipping Line Ltd that he will issue orders to halt loading of shipment on the ground that the operation was illegal. That advice was a follow on from the complaint submitted to the Ministers office by Philip Waihuna. That complaint was received by the Commission on 28th September 2010. The complaint letter also contains some facts related to differences of relationship between the Minster and Pacific Ventures General manager in relation to previous logging operations on West Guadalcanal.

35. The second complaint letter was again on the issue of conflict of interest. In that letter it was alleged that the Minster had instructed the Commissioner of Forest to issue letter of "show cause" to Taiarata Integrated Forest Dev. Co. Ltd. The letter further stated on paragraph 3 that the Minster threatened the Commissioner to seize log export consignment.

36. The first letter of complaint was written three days before the show cause letter was written by the Commissioner of Forests. That letter was received on the same date it was written. The other letter was received a day later. The Commissioner of Forest would have received his copy before he issued the show cause letter on 30th September 2010.

37. Upon those complaint that the Chairman of the Leadership Code Commission initiated investigations. Three statements were obtained. One from the Commissioner of Forest and two from individuals. Two from individuals were rationally to obtain facts to support the allegation of animosity relationship the Minister had with the Managing Director of Pacific Venture Company in relation to their previous respective operations on West Guadalcanal. The problem with individual statements is they were not signed by those who actually gave them. One of the persons Mr Garo who gave a statement had denied in his letter dated 6th October 2014 the truth of certain paragraphs (paragraphs; 8, 9, 10, 12, 13, 14, 15, 16, 17, 21, 22, 23, 24) were denied as not true. Paragraph 24 was a summary of what the Minister had done by directing the Permanent Secretary and Commissioner of Forest to issue the illegal notice linked with his past logging problems. That was absolutely denied by Mr. Garo as ethically not true and false.

38. In common practice where a person fails to sign his statement, it implies that the statement is not his, therefore, inadmissible to rely on to proof an issue in question. It could also mean the statement was fabricated to suit the investigators interest. I must therefore reject the statements of Mr Garo and Mr Steven Lee as inadmissible, one which a competent tribunal could not have relied on.

39. In the current case the Minister was charged for misconduct in office for incidences alleged to have occurred between 1st September and 30th October 2010. Undoubtedly, the facts contain within the statements of the two individuals could have been major contribution which the Chairman had considered before laying of the charge. Had the Chairman diligently peruse the statement thoroughly, he could have noted that they were not signed personally and could not have relied upon to conclude laying of a charge.

40. The only statement that remains valid is that of the Commissioner of Forest who stated that there was no proper investigation carried out before any determination to impose penalties for non-compliance. The Commissioner also stated that it was the Minster who directed him on 21st October 2010 to urgently write to the Controller of Customs to detain two vessels which carried logs from suia camp. He also mentioned in his statement that the Minister had instructed him to exercise his statutory powers to seize all forest products and cancel the felling licence of Taiarata Dev. Co. Ltd and Pacific Venture.

41. The truth of the matter is that the Commissioner of Forest had in fact drifted from the true facts. He should realise that he issued the show cause notice on his own motion having satisfied of the evidence before him. There is no material evidence that the Minister had instructed him to do so neither he was threatened nor coerced so to do. Suspension or cancellation of felling licence is a process pursuant to Section 39 of PRTU Act, which follow on from the issuant of a show cause notice. In the show cause letter the Commissioner gave 14 days for Taiarata Integrated Forest Dev. Co. Ltd to respond. There was no material evidence of any response, and so the commissioner had suspended the logging licence. It is a process, not necessary requiring the Minster to instruct, it is a process the Act itself has taken care of and the Commissioner need only to comply. To blame the Minster for unproven allegations are unacceptable and was indeed an attempt to mislead the Leadership Code Commission.

42. The decision to issue seizure notice was a collective one after a meeting was held on 22nd October 2010. It was not a personal decision of the Minister. Again the Commissioner of Forest swayed by diverting the truth. That cannot be accepted as credible fact or evidence to be used in any court of law or tribunal.

43. Collectively, the Chairman of the Leadership Code Commission was quite fallacious by placing too much reliance on the statements obtained as supporting the complaints which assisted him to conclude by laying the charge. Two statements in support of which I find to be defective whilst the statement by the Commissioner of Forests is unreliable in its entirety. Hence the charge which was laid against the Claimant has no basis in law.

Permanent stay:

44. One of the orders sought by the Claimant is an order staying permanently the investigation, inquiry and any determination in relation to complaints made against him. There is no resistance advanced by the Counsel representing the Defendant as to this issue. Mr Suri refers to a number of case authorities. In the case of Moti V The Queen[2] the High Court of Australia made reference to another case under its jurisdiction Truong V The Queen[3], which Kirby J considered that a stay could be granted, not only in "cases of deliberate and knowing misconduct but also in serious cases where, whatever the initial motivation or purpose of the offending, and whether deliberate, reckless or serious negligent, the result in which the Courts, exercising judicial power cannot tolerate or be part of". He also said that "a stay was not available to cure some venial irregularity" and that a stay had rightly been refused where only a technical breach of extradition law had taken place".

45. The High Court of Australia also refer to the case of R v Raby[4], by Byrne J who said,

"... for it is only where there is a deliberate and serious departure from the required legal procedures that the Court will register its disapproval by denying to the prosecution authority the right to proceed against an accused person".

46. What the Court is saying is that there must be serious departure from the legal procedures that will render Court's disapproval denying prosecution of the case. In the current case two statements the Commission relied on were not signed by those whom the statements were obtained from. The only statement remain contain facts which are self-denial. It is a serious cause of which should have heavily impacted not to formulate a charge at all.

47. In the case of Hunter V Chief Constable and Others[5] the House of Lords narrated on page 6, paragraph 3,

"The abuse of process which this instant case exemplifies is the initiation of proceedings in a Court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which had been made by another Court of competent Jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the Court by which it made."

48. On page 10 paragraph 2, the Court further stated,

"The letter test, however, is applicable where the proper course to upset the decision of the Court of first instance is being taken, that is to say by appealing to a Court with jurisdiction to hear appeals from the first instance Court whose procedure like that of the Court of Appeal, is by way of a re-hearing". The Court ultimately dismissed the appeal.

49. In another Australian case Walton V Gardina[6] the High Court of Australia stated on paragraph 23;

"The inherent jurisdiction of a superior Court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the Court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be fore doomed to fail"

50. In the current case, the leadership Code Commission is a public office instituted with power to administer justice with fairness and impartiality in dealing with leaders of the SI Government. There are processes and procedures to comply with enacted by an act of Parliament and Regulations. The manner in which the investigations were conducted and the statements were obtained and recorded were unsigned is an abuse of process, if taken, will convert them into instruments of injustice or unfairness.

51. From my analytical narrations and my reasons for decision, permanent stay of the investigations, inquiry and determination is an appropriate action to take at this stage.

Orders:

A. The Court hereby declares, pursuant to rule 12.11, that the Claimant as the Minister for Forest had constitutional power vested upon him by Section 40 of the Constitution to exercise general direction and control over the Ministry of Forest, and in doing so was entitled to;

(i). request or instruct the Commissioner of Forest to exercise his statutory powers to seize forest product and machines/equipment used in illegal harvesting of forest by Pacific Ventures (SI) Ltd and Taiarata Integrated Forest Development Co Ltd on a customary land described by them as irapaina land in West AreAre in Malaita Province; and

(ii). to caution the Commission of Forest of a disciplinary action for insubordination should he failed to attend the urgent consultative meeting convened by the Minister on 23rd October 2010.

B. The Court hereby declares pursuant to rule 12.11, that the witness statements of Mr Bernard Garo dated 20th September 2011 and Mr Steven Lee dated 16th September 2011 disclosed to the Claimant did not truly represent the actual statements given by those persons but rather were statements falsely fabricated by the Principal Investigation Officer of the Leadership Code Commission, Mr George Oli. Accordingly, it is declared that those witness statements are defective and inadmissible in law for purposes of laying the charge of conflict of interest against the Claimant.

C. The answer is in the affirmative.

D. The answer is in the affirmative

E. The answer is in the affirmative

F. Since the answers in C, D and F are in the affirmative, the following are also answered in the affirmative.

(i). Answer is in the affirmative.

(ii). Answer is in the affirmative.

(iii). Answer is in the affirmative.

(iv). Answer is in the affirmative.

G. Having answered question (F) in the affirmative this Court herby makes orders staying permanently the investigation, inquiry and making of a determination in relation to the complaint made against the Clamant.

H. Costs of and incidental to this application and the whole proceeding are paid by the Defendant to the Claimant.

The Court.

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^[1] (1994) FJCA 44.
^[2] (2011) HCA 50 (7 December 2011)
^[3] (2004) 223 CLR 122; [2004] HCA 10.
^[4] (2003) V SC 213 at 37
^[5] (1981) UKHL 13 (19 November 1981)
^[6] (1993) HCA 77 (1993) 177 CLR 378.