Russell Islands Plantation Estate Ltd v Guadalcanal Provincial Government [2015] SBHC 18; HCSI-CC 28 of 2014 (10 March 2015)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction
(Maina J)

Civil Case No. 28 of 2014

BETWEEN:

RUSSELL ISLANDS PLANTATION ESTATE LIMITED
1st Claimants

AND:

LEVERS SOLOMONS LIMITED
2nd Claimants

AND:

GUADALCANAL PROVINCIAL GOVERNMENT
1st Defendant

AND:

GUADALCANAL DEVELOPMENT AUTHORITY
2nd Defendant

AND:

WAETA BEN TABUSASI
3rd Defendant

AND:

EZEKIEL ALEBUA
4th Defendant

AND:

STEPHEN PANGA
5th Defendant

AND:

ANDREW KUVU
6th Defendant

Date of Hearing: 20th February 2015
Date of Ruling: 24th February 2015

Mr. Nimepo for the Claimants
Mr. Banuve for all the Defendants

RULING

Maina J:

An application is made to the Court seeking default judgment against the Guadalcanal Provincial Government, its business authority and former and present Premiers.

A claim was filed by the Claimants against all the Defendants seeking an order or declaration that the First and Second Defendants has lawful authority or right over the properties, business affairs management and day to day operation of the First and Second Claimants and other related orders. The First Defendant is a Provincial Government and Second Defendant is a business authority of the First Defendant. The other Defendants were former premiers and officers of the First Defendant.

The claim was filed in the Court on 3rd February 2014.

There were no defences filed by the Defendants and the Claimants in pursuance to Rules 9.17; 9.19; 9.22 of the Civil Procedure Rules filed an application seeking a default judgment to be entered against all the Defendants.

At the commencement of the hearing of application for default judgment, the counsel for the Claimant informed the Court that he has received a letter from the Attorney General for the First and second Defendants as to why they did not file any defence. And the Claimants received on 18th February 2015. And the Claimant does not intent to proceed for default judgment against the First and Second Defendants.

But given the situation of the 1st and 2nd Defendants, the Claimants then decides to proceed with default judgment against the 3rd, 4th, 5th who were former premiers of the First Defendant and 6th Defendants.

The Issue

The question here is:

Whether the Attorney General may stand for the former premiers of Guadalcanal Province for the acts done by them during their time in office?

Counsel Nimepo for the Claimant submitted for 3rd, 4th, 5th and 6th Defendants, they simply did not make any defence on the allegation against them and so a default judgment should entered against them. He said for 3rd, 4th and 5th Defendants are sued in their personal capacity on the reasons they are former and present premiers of the Guadalcanal Province.

But Mr Banuve for Attorney General informed the Court he is not coming to Court to defend the application for default judgment but to tell the Court about the rules and laws when suing the crown. He said the First and Second Defendants are part of the crown and the Attorney General will stand on their behalf. Any document or claim relates to the crown must be served on the Attorney General. He made reference to Rule 15.12.1 of the Civil Procedure Rules and Section 8 and 15 of the Crown Proceeding Act.

With the 3rd, 4th, 5th Defendants as were sued for their acts when they were Premiers of the First Defendant they cannot be sued on the personal capacity. The acts by them were on the official capacity and now they are former officers of the crown. The Attorney General will stand on their behalf.

The Court

There is no dispute the former premiers had not filed their defences. But what seems to clear and as highlighted by Counsels for the Claimants the 3rd, 4th, 5th Defendants are named as Defendants because they are former Premiers of the First Defendants. There is no other reasons made to the Court to make the Defendants personally liable for their acts except in their former capacities.

I cannot further agree more with Mr. Banuve for the Attorney General that the former premiers acted on the official capacities or when they held the office that time. The 3rd, 4th, 5th Defendants were officers of the crown and now former officers of the crown.

The Definition of Crown in civil proceedings by or against the Crown includes Provincial public officer and the Crown also includes the Provincial Executive of any Province: Rule 15.12. 1 of the Civil Procedure Rules 2007.

The 3rd, 4th, 5th Defendants were of former officers of the crown and purportedly acted on official capacities. There is no evidence to contradict that. And any legal challenge for their acts is to be instituted against the Attorney General and claim and pleading to be served to him as required under Section 15 and 16 of the Crown and Proceedings Act.

And for default judgment against the Crown in default of appearance or pleading, a leave of the Court to be obtained on an application to the Court and 7 days notice to be given to the Crown: Rule 15.12.22 of the Civil Procedure Rules.

For this matter against the 3rd, 4th, 5th Defendants and with 6th Defendant, there is nothing before the Court to satisfy the requirement of the Civil Procedure Rules.

At the outset there were no proper services of the claim and relevant documents to the Attorney General, thus on part of applicant it is an abuse of the process and accordingly the application for default judgment is dismissed.

ORDERS:

1. The application for default judgment is dismissed.
   
2. Cost in the cause.
   

.................................................................
Justice Leonard R Maina
Puisne Judge