Attorney-General v Maui [2015] SBHC 89; HCSI-CC 520 of 2015 (19 October 2015)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona PJ)

Civil Case No. 520 of 2015

BETWEEN:

ATTORNEY-GENERAL
Claimant

AND:

SOLOMON MAUI (Trading as Mugaba Timbers)
First Defendant

AND:

ASIA PACIFIC INVESTMENT DEVELOPMENT LIMITED
Second Defendant

Date of Hearing: 14th October 2015
Date of Ruling: 19th October 2015.

Mr. J. Muria (Jnr) for the Claimant
Mr. G. Suri for the First and Second Defendants

RULING ON APPLICATON TO SET ASIDE AND INJUNCTION AND APPLICATION FOR DISSMISSAL

Faukona PJ: These proceedings concern two applications which are consolidated and heard together. One application was filed by the Claimant on 9th October 2015, seeking restraining orders and setting aside of the Magistrates Court order on 8th October 2015. The other application was filed by the Defendants on 14th October 2015 to dismiss the Claimant's application for injunction and claim.

Background facts:

2. The Claimant is a public office established by S.42 (1) of the Constitution with a mandate to advise the Government and its various agencies.

3. The first Defendant is a principal landowner of naone customary land, West Rennel, prior to registration. Now naone land is part of a large tract of registered land described as parcel number 298-005-1. The second Defendant is the sublease to that land.

4. The second Defendant is the holder of a Mining Lease No. ML: 1/2014 granted on 5th September 2014. By its terms and section 43 of the Mines and Minerals Act the second Defendant has exclusive right to mine for minerals within the area subject to the mining lease, and may enter upon the area to carry out mining activities including activities set out in S.43 and for this case subsection (g) of Mines and Minerals Act which provides; to engage in all such activities as may be reasonably necessary for carrying out mining operations. One of the activities, per se, is initial clearance of forests. It is the logs that were extracted from this activity that are subject to these proceedings.

5. It is a nonissue that the neither the first nor the second Defendants was not able to export the logs. Having conscious about its status and the difficulties encountered, the second Defendant therefore surrendered its right of ownership and control of the logs to the first Defendant. Two days after conveying of rights of ownership, the Commissioner of Forest, on 24th September 2015, issued the seizure notice to the second Defendant pursuant to Section 33 of the Forest Resources and Timber Utilisation Act (FRTUA).

6. Consequently, the Defendants appealed against the seizure notice on 6th October 2015 utilising their rights under Section 37 of FRTU Act. The appeal was given a returnable date, 16th October 2015 as the hearing date.

7. Whilst the appeal is pending in the Central Magistrates Court, the Defendants obtained ex-parte orders in that court on 8th October 2015 restraining the Claimant, itself or its agencies, other persons or authority from selling by public tender or by private treaty, all or any of the logs the subject of the appeal; the rest of the orders are directory in nature.

8. It is this order which the Claimant now challenges to set aside for having contravened Section 18 of the Crown Proceedings Act. The rest of the orders are substitutory in nature, anticipating a new regime that will suit its taste.

The issues

9. The issues identified are as follows:

a Whether the orders by the Magistrates Court are in breach of section 18 of the Crown Proceedings Act? and

b Whether the Magistrate has jurisdiction to grant orders that are judicial review orders in nature?

10. Before addressing the issues, it is note-worthy to consider the suggestion by Mr Suri to address the issue succinctly with least possible time consuming. The issue relates to indication of a mark on the property been so seized in accordance with S. 33(2) of Forest Resources and Timber Utilisation Act (FRTUA). As a pre-requisite requirement, the question is, has the notice of seizure issued according to law. Notwithstanding that, I concur with Mr. Muria that the issue related to seizure has been a part and partial of the major substantive issue to be heard in the appeal. Essentially, it is not necessary to accommodate that in this proceeding. To allow such to recourse is to reignite duplication of litigation of which an appeal has been pending before the Magistrates Court.

This proceeding:

11. This application emanates from interim ex-parte orders granted by the magistrates Court on 8th October 2015. The learned Presiding Principle Magistrates relied on S.19 (d) of the Magistrates Court Act to grant the orders. The Claimant was aggrieved of the orders, therefore, comes to this court with an application to set aside the Magistrates orders. With the present of both Counsels representing parties, it would appear that this is an inter-parte hearing, a process that normally and practically falls on from an ex-parte proceeding.

12. It would be proper, in my view that an inter-party hearing ought to be conducted in the same forum that granted the ex-parte orders. I say this, on the basis that, that was the Court where the appeal lies and where all the necessary documents had been expectedly filed by the Counsels. Unfortunately, there was no claim filed in this Court to ground the application. I could presume the Counsel concern has in mind, and the fact that there could have been responses to the appeal, hence provide a proper footing for this application.

13. The difficulty is that, Mr Suri's application for dismissal includes dismissal of a claim for being abuse of Court process. There is no claim before this Court and I am in a blank situation in relation to what is it the Claimant is pleading.

14. In any course, by figurative assessment, the Claimant decided to come to this Court because of the significant important of S.18 of the Crown Proceedings Act. In no way that is a defective idea, acknowledging the fact that this Court has inherent and unlimited original jurisdiction in granting injunctions, see S.77 of the Constitution.

15. Now I will turn to the issues: I will deal with second issue first.

Whether the Magistrate has jurisdiction to grant the orders:

16. I have cited earlier that the Magistrate relied on S.19 (d) of Magistrates Court Act to grant the interlocutory orders. The value of the extent of that jurisdiction is not fully expounded by the statute. All it says is to grant injunction or orders to stay waste or alienation of any property the subject of the suit. The extract wording of the statute seems to resonate with the real circumstance in this case. Mr Suri puts it, that the orders were necessary to preserve the appeal. Mr Muria (J) does not fully agitate the cream of his submissions on this point.

17. An injunction, whether interlocutory, is described as court orders forbidding or commanding the performance of an activity or thing; it may (discretionary) be granted in all cases in which it appears to the Court to be just and convenient to do so[1]. Just and convenient mean it should grant an injunction for the protection of rights or prevention of injury according to the legal principles[2].

18. In this case to protect the properties in terms of logs and machineries from being disposed of or lay waste until the appeal against the seizure notice is heard and determined. I do not seem to see the orders were granted in the nature of judicial review. In fact, the orders operate to reserve the rights of interested party who wish to be heard by way of an appeal to the Magistrates Court. One such party are the Defendants who had filed an appeal. It does not grant any relief in terms of costs on monetary liability against the Crown. There is nothing in the judgment of the learned Magistrate.

Whether the orders are in breach of S.18 of Crown Proceedings Act:

19. The general tenor of the section is such that the Court has power to make any such order against the Crown, as it has power to make in proceedings between subjects. However, the Court shall not grant injunction or order specific performance in a proceeding against the Crown where such relief is sought. What amounts to relief can be constructively confine to injunction or orders for specific performance, damages or duty. But the Court may grant in lieu by way of declaratory order of the rights of the parties, a perception that does not align well with Mr. Muria (Jnr's) contention. However, I noted paragraph 5 of the case of Quan V Minister of Finance and Treasury[3] in which His Lordship, Palmer CJ stated;

"All that section 18 (1) of the Crown Proceedings Act does is to restrict the nature of relief which can be obtained against the crown as they apply to the issue of injunctions and orders for specific performance and confine them to the issue of declaratory orders instead"

20. His Lordship further stated in paragraph 5, as below,

"There is no basis to say that section18 (1) of the Act encroaches upon and delimits the High Court's "unlimited" original jurisdiction to hear and determine any civil proceedings under section 77(1) of the Constitution. I should point out though that the issue whether a declaratory order can be obtained as an interim or interlocutory order in lieu thereof has never been agitated in this court for consideration as to whether such an order can be extended to include interim relief against the Crown where the policy seems to be putting the Crown so far as is practicable in the same footing as a private litigant".

21. The question is whether all the reliefs against the Crown are restricted by the section as mandatory with one option available, or are they limited to certain reliefs depending on the circumstance of each case. If it is a strict mandatory provision, then there is no point in upholding the principle of just and convenient in a case, the basis upon which injunction orders are granted. In the case AG V Chaudhry and Another[4], the court held that, "notwithstanding that an Act provided a remedy in an inferior court for breach of its provision, the High Court had power to enforce obedience to the law has enacted by way of injunction wherever it was just and convenient to do so."

22. If all the reliefs are restricted and instead confine to declaratory orders in lieu as to the rights of the parties; then what are the rights of the parties in this case? Plainly, I would say the first Defendant may have a claim of right of ownership of the logs by way of transfer of rights of ownership by the second Defendant. May be the third party has rights to the equipment and machineries. However, what rights do the Claimant and second Defendant have over the properties? These are perhaps the core issues to be determined at the appeal.

23. In any event, there is no practical rationality to usher the operation of S.18. Anyone can have a prospectus guess. I think the answer lies in the obvention of revenue, finance and costs in which the Crown cannot be allowed to suffer the consequence of remedy which in lieu demeans Her Majesty's Government of Solomon Islands (the Crown) in disdain.

24. So far, the nature of the orders does not prejudice the Claimant or accumulate any monetary liability. The concern order is merely an order granted to preserve the properties until 16th of October or other date when the appeal is finally heard by the Magistrates Court. It would appear that S.18, if not properly interpreted, will be used as a shield to prevent identifying what ought not to have been done, been done by the Crown. In other words, there has to be a measuring rod to ensure what the Crown does, does not breach the law. Hence, I could able to conclude that not all the reliefs are restrictive against the Crown. There are some which the Crown must prepare to accept so as to uphold the principle of just and convenient. If the orders sought in this application is granted, it is imminent the properties the subject of the appeal will be disposed of thus render the appeal at stake.

25. The circumstance permit that it is not relevant to issue declaration order instead of injunction. This Court is not fully addressed on any propose declaratory order. This option of which I am being mindful of the fact that discretionary powers must be exercised in good faith, and within the limits of the Act or instrument conferring the power, and fairly in accordance with legal principles. This option could have been considered if alternative declaratory orders are available.

Application for dismissal:

26. I have stated in paragraph 12 above that there is no claim in the file. The Claimant's application to set aside with introductory of substituted new regime of orders is footed perhaps on its response to the appeal filed in the Magistrates court. All this Court has is one sworn statement of Jonathan Zama which supports no claim at all and no pleadings. This Court is placed in a situation where no pleaded facts are available to be considered in particular where an abuse of Court process is alleged.

27. It would appear, the abuse of process allegation is in respect of the non- compliance with the provisions of Forest Resource and Tiber Utilization Acts which parties now prepare to litigate in the Magistrates Court. To consider and determine the failure to comply with the law, as an abuse of process is duplication of function. The jurisdiction of the Magistrates Court which had been mandated to hear the appeal had been sought and cannot be stultified.

28. The procedure adopted by the Claimant in the seizure process is now an issue before the Magistrates Court. To avoid conflict of jurisdiction, I would dismiss the application seeking to dismiss the Claimant's claim and maintain the Magistrates Court orders until the appeal is heard.

Orders:

1. Application to set aside Magistrates interim ex-parte orders of 8th October 2015, and introducing new injunction regime refused.

2. Maintain all Magistrates Court orders until the appeal is heard.

3. Dismiss the application by the Defendants for dismissing the Claimant's claim.

4. Cost in the cause.

The Court.

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^[1] Hasbury’s law of England, Vol 24, para. 817
^[2] Ibid (1), para. 819
^[3] (2005) SBHC 5; HCSI-CC 151 of 2005 (27 April 2005)
^[4] (1971) 3 All ER 938.