Jui Hui Chan v Attorney General [2016] SBHC 134; HCSI-CC 212 of 2014 (25 August 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS

(Faukona PJ)

Civil Case No. 212 of 2014

BETWEEN: JUI HUI CHAN First Claimant

AND: JC PROFESSIONAL LIMITED Second Claimant
(Trading as JC Valuer)

AND: ATTORNEY-GENERAL
(Representing the Valuer General) First Defendant

AND: ATTORNEY-GENERAL Second Defendant

AND: JOYCE GALO
(Representing the Valuer General) Third Defendant

AND: VALUERS ASSOCIATION OF Fourth Defendant
SOLOMON ISLANDS

Date of Hearing: 29^th July 2016

Date of Decision: 25^th August 2016

Mr D. Nimepo for the First and Second Claimants
Ms L. Fineanganofo for Defendant (1) – (4)

DECISION

Faukona PJ: This supposed to be an application for determination on a point of law as a preliminary issue. On the outset there is no formal application filed in respect of the preliminary issue as an issue related to law. Often preliminary issues, in particular points of law, attracted preliminary hearings acknowledging the fact that upon determination of a preliminary point will consequently affect the substantive issue in the claim. However, in spite of the fact that Counsels have been prepared and filed written submissions, although no formal papers are on the file pertaining to application for determination of preliminary issue, I will determine the issue accordingly.

2.	The first Claimant is a Malaysian national who commenced employment with the Second Claimant on or about 8th November 2011. The second Claimant is a duly incorporated company operating under the trading name of “JC Valuer” and has been engaged in the business of property valuation since March 2012.
3.	According to documentary evidence, the first Claimant was granted renewal of his work permit on 7th April 2015 which will expire on 7th April 2015. The question as to how many times the first Claimant’s work permit had been renewed before 7th April 2013 cannot be ascertained for lack of material evidence available. This is quite important so that the Court aware when was the first Claimant arrived in the Solomon Islands and when was he granted the first work permit. In the absence of that the Court will only rely on evidence that is available on record.
4.	Also on record the Special Company Limited was incorporated on 10th July 2009. The firs claimant was the only Director and held 100 shares, the only shareholder. The Company was re-registered on 27th September 2010 and changed its business name to JC Professionals Limited on 21st September 2012.
5.	I would note, whether it is a mistake or discrepancy, that the date the second Claimant employed the first Claimant was on 8th November 2011. Before that, on 10th July 2009 the first Claimant incorporated Special Company Limited which later on 21st September 2012 changed to JC Professionals Limited. He was the only Director and only one shareholder who held 100 shares; was he not employed by his company since incorporation on 10th July 2009, why started employed on 8th November 2011, two years and two months after incorporation of his Company? This is a puzzle and ought to be rectified.
	The other facts:
6.	On 28th August 2012, the first Defendant received an application from the first Claimant to be registered as registered valuer in Solomon Islands.
7.	On 22nd October 2013, the first Defendant met and deliberated on the application and decided to defer it pending verification and the need to submit further important information as the first Claimant is not a Solomon Islander. Whilst the first Defendant yet to make a decision on the application, the first Claimant filed this case on 11th July 2014.
8.	On 15th July 2014, the first Defendant wrote to the first Claimant to furnish information required by the Board which are academic transcript and work experience overseas prior to coming to Solomon Islands.
9.	On 28th July 2014, the first Claimant furnished the required documents. On 30th August 2014, the first Defendant wrote to the First Claimant to fill a Temporary Registration Application Form. On 29th September 2014 the first Claimant wrote to the first Defendant that, among other things, he would not accept temporary registration.
10.	It would appear the first Claimant’s reason for not accepting temporary registration was based on legal points in particular, application of certain provisions of the Valuers Act 2009.
	Issue:
11.	The issue for determination is whether at the commencement of the Act, the first Claimant is a person who is deemed as registered and licenced valuer undertaking valuation practice under section 39 of the valuers Act 2009.
	Aids for interpretation of law:
12.	Both counsels refer to Section 9 of the Interpretation and General Provisions Act, Cap. 85, to rejuvenate by adding strength to their arguments that each Act must be read as a whole and shall receive such fair and liberal construction and interpretation at its best to ensure the attainment of the object of the Act according to its true intent, meaning and spirit.
13.	I accept the authority in Section 9 of the Interpretation and General Provisions Act as an aid for interpretation of an Act. However, for justification reasons I have given liberty to adopt other aids of interpretation of the law that is the literal rule, the golden rule and the mischief rule. I will apply whichever rule is most relevant in the circumstances of this case.
	The application of the Valuation Act:
14.	On the outset, the Valuers Act 2009 was a new Act, which came into force on 26th September 2012. Its purpose is to establish a board and provide its functions and power to register, and discipline Valuers and to regulate their professional standard and practice.
15.	The first Claimant who is not a Solomon Islander, but possessed academic and professional qualification and had been practicing valuation before the Act came into force. On 28th August 2012 with the intention to be permanently registered, submitted his application to be registered and for a licence. On that date of submission the Act was yet to come into force. Without doubt the first Claimant could have been well versed or advised of the existence and requirement of the new Act.
16.	The application was received and the Board decided to consider it under the new Act. Having deliberated on the application the Board deferred its decision pending verification and the need to submit further information as the Applicant is not a Solomon Islander.
17.	The argument by the Counsel advocate for the Claimants is that the first Claimant is qualified to be permanently registered to practice as a Valuer under S.39 of the Act. He has been practicing valuation work in the Solomons and at the commencement of the new Act S.39(1) describe him deem to have been registered. The only persons not eligible to register are persons of unsound mind, persons under the age of 18 years and an undischarged bankrupt person- see S.12 of the Valuers Act. The Counsel for all the Defendants argues that the first Claimant is not qualified to apply under Section 39 because although he may have met requirements under Section 10 (1)(a) to (c). The reason being that Section 10 (1) (d) an additional provision enacted by Valuers (Amendment) Act 2016, which came into force on 1st June 2016 expressly stated that individual applicants who applied under Section 39 must be a Solomon Islands citizen. That a non-citizen of Solomon Islands can apply under Section 13 for temporary registration for up to 3 months, subject to extension and further extension.
18.	Now I noted why Counsels make reference to interpretation of an Act rather than specific provision of the Act. In any event the dispute does not circulate around a prescribed form for application, neither did it concern that the Claimant did not meet the requirements under the Valuers Act. The dispute concerns whether a non-citizen as the first Claimant can apply under Section 39 for permanent registration or under Section 13 for temporary registration.
19.	The question now is whether Section 10(1)(d) of the amendment Act, which now being in force, discriminate the first Claimant, as a continuing practicing valuer who had been permanently registered and who could only allow to apply for a temporary registration under Section 13 of the Act.
20.	At the time of lodging of the application, there was no amendment to Section 10 of the principle Act yet. Even on 22nd October 2013 when the Board sat to deliberate on the application there was no amendment to Section 10 of the Act yet. Amazingly, as submitted by the Counsel advocate for the Defendants, that one of the reasons for deferring any decision on the application was because the Claimant was a non-citizen of Solomon Islands. To consider the status of the Claimant in connection to the Act at an early stage in my opinion, fore-shadowed the passing of Section 10(1)(d) of Valuers (Amendment) Act 2016, which disqualifies the first Claimant from applying to be registered as a permanent valuer to be given a licence to practice under Section 39.
21.	The events that culminated from the Boards deferral in deciding the application and instituting of his case, and an attempt to direct the first Claimant to fill in temporary registration application form, as an alternative approach, had occurred before the amendment was passed by the Parliament on 28th April 2016.
22.	It would appear there could be no solution to resolve the case and the Defendants obviously stand to lose it. To escape legal responsibility reliance on the principle Act is insufficient to provide any legal exit as an escape route.
23.	That obviously reminds me to interpose whether the rational for passing the amendment Act is one of the circumstances to cure any mischief, or is it operating as a saving amendment Act to preserve the status and dignity of an independent state from being torn by a piece of legislation which created by itself.
24.	I accept the first Claimant’s application for registration was lodged three years and eight months before s.10 (1) (d) of the Valuers (Amendment) Act was passed by Parliament on 28th April 2016. Likewise this case was filed one year and nine months before the amendment was passed.
25.	Any legal minded person prompted by such circumstances would undoubtedly conclude that the principle Act of 2009 do form the basis for determination of the first Claimant’s application and this case. The amendment Act as I perceive came into force quite late and seems to promote discrimination of a non-Solomon Islands citizen like the Claimant who had been practicing valuation work before the 2009 Act came into force.
26.	Proper approach as I would interpret is that, any non-citizen of Solomon Islands, who had practiced valuation profession before the 2009 Valuation Act, can apply under Section 39 to be permanently registered. Any new non-citizen who may wish to apply to be registered as a valuer must comply with Section 13 of 2009 Valuation Act and apply for a temporary registration.
27.	The Valuation (Amendment) Act which came into force on 1st June 2016, by adding subsection (d) to S.10 (1) is absolutely cannot apply to the first Claimant as a continuing practising valuer. And that it came into force more than 3 years after the first Claimant had lodged his application and about 2 years after this case was filed by the Claimants. It would be prejudicial and unfair to consider amendment provision as prevailing because it will discriminate the rights of the first Claimant.
28.	I have taken cognisance of the case of Khan V Attorney-General[1] in which the Court stated a pertinent pronouncement on paragraph (1), page 13;
		“.... Bearing in mind that the parties in this case (and no doubt other) acted with the approval of the authorities at that time they set up businesses in accordance with the requirements then applicable, it would be surprising if in altering the legislation those already established legally under the earlier legislation would be penalised”.
29.	At paragraph 2 the Court continued and stated;
		“There can be no doubt that the rule is that the natural and ordinary way to regard statute is that they affect something in the future and not affecting what has gone before”.
30.	His Lordship in Khan’s case cited the case of Ward V British Oak Insurance Co.[2] which the Court stated;
		“Prima facie an act deals with future and not past events. If this were not so, the Act might annul rights already acquired”.
31.	With the reasoning narrated above and the case authorities cited. I will lean against the values (Amendment) Act 2016 as depriving the first Claimant of his accrued rights. Hence the preliminary issue is determined in favour of the Claimants with costs to be paid by the Defendants, and I do order accordingly.
	The Court.

---

^[1] (1984) SBHC 14
^[2] 1 (1932) 1 KB 392