|
|
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of Solomon Islands |
IN THE HIGH COURT
OF SOLOMON ISLANDS
Civil Jurisdiction
BETWEEN: COLIN YOW TUCK FOOK - Claimant
AND: ATTORNEY GENERAL - 1st Defendant
TONY HUGHES - 2nd Defendant
DR. PATRICIA RODIE - 3rd Defendant
WAYNE MORRIS - 4th Defendant
FLORENCE TAGINI - 5th Defendant
REYNOLD MOVENI - 6th Defendant
Date of Hearing: 24 February 2017
Date of Judgment: 14 March 2017
Mr. L. Kwaiga for claimant
Attorney-General by Mr. J. Muria Jnr, Senior Crown Counsel, for all defendants
Application for Declarations affecting the constitution of a Commission of Inquiry under the Commission of Inquiry Act (Cap.5)
Brown J:
These proceedings arose out of the appointment of a Commission of Inquiry into the reform program of the Solomon Islands Port Authority (SIPA). In accordance with his powers under Section 3 of the Commissions of Inquiry Act (Cap.5) the Hon. Manasseh Sogavare, Prime Minister on the 4 May 2016 appointed various Commissioners (those persons named 2nd to 6th defendants), provided for fixed terms of reference, the duration and conduct of the inquiry and directed that a final written report be furnished.
By amendment to such Commission on the 8 July the Prime Minister directed that:-
“3(3) the inquiry must not be held in public, but the Commissioners have the discretion to allow any person to be present during
the inquiry for due conduct of the inquiry.”
On the 9 September 2016, the claimant, Colin Tuck Fook Yow instituted these proceedings by Category C Claim seeking particular declarations, both as to Statutory and Constitutional rights. On the 2 November 2016, the Attorney General filed application to have the proceedings struck out pursuant to the Rules of Court on the ground the proceedings were frivolous and/or vexatious.
The claim to have the proceedings struck out lies in accordance with Civil Rule 9.75; while speaking of frivolous and vexations proceedings, it also provides for strike out in circumstances where no reasonable cause of action is disclosed or the proceedings amount to an abuse of process.
The declaration sought by claim do not in themselves or by alternate remedy, seek other substantive relief. The court may, since the power to make declarations of right is wholly discretionary[1], make such declarations provided they are not unlawful, or unconstitutional or inequitable for the court to grant “or contrary to the accepted principles upon which the Court exercises its jurisdiction”[2]
When addressing the principles which should govern the courts exercise of discretion, Lord Dunedin said (in the Russian Bank case),
“It may be that I am swayed by my experience of another system of law, but a rule which can be expressed in the form of a principle
may well be proper to any legal system.
Your Lordships are aware that the actions of declarator has existed for hundreds of years in Scotland. It was praised, with envy,
by Lord Brougham, in You Lordships House, in the case of Earl of Mansfield v Stewart long before the genesis of Order xxv.r.5 (continued)
“The rules that have been elucidated by a long course of decisions in the Scottish Court may be summarised thus: The question
must be a real and not a theoretical question, the person raising it must have a real interest to raise it, he must able to secure
a proper contradictor that is to say, someone presently existing who has a true interest to oppose the declaration sought”[3]
For it is important to separate claims for declaration of right, framed as such, instead of proceeding by way of cause of action. As I understand, the claimant has also instituted proceedings seeking substantive relief in relation to the manner of his termination of appointment. There is then, or may be, a separate claim for substantive relief.
While causes of action previously required “a legal label”[4], a claimant now must enumerate the facts on which he seeks to rely[5] showing the basis for the substantive relief. It cannot be said, for instance the claimant, Colin Tuck Fook Yow by these proceedings is seeking substantive relief for a tortious injury, for breach of a contract, for a statutory cause of action under other legislation; rather he seeks this courts grant of declarations of his right to findings set out in the claim.
They are: -
“1. A declaration that the process and procedure including rules for conduct and management of proceedings as adopted by the
Commission of Inquiry into SIPA Reform Programs is in contravention of the claimants rights under Section 10(8) of the Constitution,” and by 2 & 3 of the Claim consequential declarations and by 4 to 7 of the Claim, declarations that the claimant has been denied
a right to be heard and a fair and impartial hearing; as well as declarations that the process and procedure for the conduct and
management of the Inquiry are flawed so as to make the Inquiry void and unlawful.
The final declaration sought, 9, seeks a finding that the Terms of Reference are in contempt of proceedings in High Court Civil Case 185 of 2016.
It is important to distinguish this case from claims for judicial review simpliciter which relate to review of administrative actions, an entirely different consideration for the court, than that posed by the claim for declaration of right.
Since Lord Dunedin’s rules are cogent, even today, I propose to adopt them for guidance in determining whether or not to exercise my discretion in favour of making those declarations.
In the first place, “it must be a real and not a theoretical question.” The 1st declaration, above is real for it is directed to the protection of the law (as Mr. Kwaiga for the claimant says) afforded this claimant
pursuant to Section 10 (8) of the Solomon Island Constitution.
“10-(8) Any court or other adjudicating authority prescribed by law for the determination of the existence or extent of any
civil right or obligation shall be established or recognized by law and shall be independent and impartial; and where proceedings
for such a determination are instituted by any person before such a court or other adjudicating authority, that person shall be given
a fair hearing within a reasonable time.”
I am satisfied the 1st declaration sought goes to a real question if the facts show process, procedure and rules governing the Commission, breach the Constitutional provision securing an individual’s protection of law.
It is necessary to determine the nature of this Commission of Inquiry for the Constitution protection relates to a person’s civil right or obligation at law, a fair trial for instance, and a “court or other adjudicating authority prescribed by law” is to be the body, “independent and impartial “ constituted for that purpose. The claimant is that “person” who, he claims “shall be given a fair hearing within a reasonable time”. “The real question”, is whether the Commission has the statutory power to entertain coercive orders, it consequently need be shown that the Commission of Inquiry envisaged by the Act[6] falls to be considered as “a court or other adjudicating authority,” as understood in the context of S.10(8).
In Mr. Kwaiga’s submissions in support of his clients Claim, whilst his assertions that the Commissioners were neither independent nor impartial, he has not directly addressed the issue whether the Commission may be that “court or other adjudicating authority” to be understood in terms of S.10 (8). For if not, the question of impartiality is rather moot.
He, at paragraphs 41-43 of his submissions appears to concede the status of the Commission is not that of a “Court or other adjudicating authority” and consequently cannot be seen to be a body caught by the provisions of S.10 (8), but that apparent concession does not excuse me from the paramount duty to the claimant to answer the question, not allow it to fail by default of proper consideration.
For Mr. Kwaiga said:-
“41. In respect of legal status of the legal status of COI, North J. stated in Re the Royal Commission to Inquire into and
Report upon State Services in New Zealand[1962] NZLR 96, 109:
“A Commission of Inquiry is certainly not a Court of Law. Nor is a Commission of Inquiry to be likened to an administrative tribunal entrusted with the duty of deciding questions between parties. There is nothing approaching a lis, a Commission has no general power of adjudication, it determines nobody’s rights, its report is binding on no one”
42. This was further elaborated on in the case of Re Erebus Royal Commission; Air New Zealand Ltd v Mahon (No 2) [1981] 1 NZLR 618at 653 stated:
“This is not an appeal. Parties to hearing by Commissions of Inquiry have no rights of appeal against the reports. The reason is partly that the reports are, in a sense, inevitably inconclusive. Finding made by Commissioners are in the end only expressions of opinion. They would not even be admissible in evidence in legal proceedings as to the cause of the disaster. In themselves they do not alter the legal rights of the persons to whom they refer. Nevertheless they may greatly influence public and Government opinion and have a devastating effect on personal reputations; and in our judgment these are the major reasons why in appropriate proceedings the Courts must be ready if necessary, in relation to Commissions of Inquiry just as to other public bodies and officials, to ensure that they keep within the limits of their lawful powers and comply with any applicable rules of natural justice”
43. However, the issue in this matter is not about the legal rights of the Commission of Inquiry but it is about the process and procedure as adopted by the Commission of Inquiry during its inquiry and its failure to comply with the various provisions of the Commission of Inquiry Act [Cap 5] which give rise to the breaches of the Claimant’s rights.”
By his paragraph. 43 he appears to concede the commission does not fall to be considered with S. 10(8) but rather Mr. Kwaiga falls back on his claim of breach of natural justice by failings in the process and procedure of the commission.
Mr. Muria (Jnr) for the Attorney was in no doubt the Commission did not fall to be considered as “a court or other adjudicating authority” and relied on various authorities in support.
While indirectly referring to Mahon’s case (supra) he pointed to that decision on appeal to the Privy Council[7], which held that persons who were affected by a public inquiry have a right to be heard before adverse findings are made against them. In the case before me, the Inquiry was not public and in accordance with S.14 of the Commission of Inquiry Act, the claimant had
been asked through his counsel to assist the Commission by letter dated the 5 August 2016[8] and by correspondence in reply dated 9 August (by e-mail) LA Kwaiga [the claimant’s counsel] agreed to respond by 12 August
2016 by sworn statement.[9]. [For the underlying reason for the claimants’ interest in the fact of the Commission of Inquiry stems from his termination
as Chief Executive Officer of the Solomon Island Ports Authority].
By letter of the 8 August 2016 addressed to the Chairman of the Commission of Inquiry, L&L Lawyers, under hand of Lazarus Kwaiga,
lawyer advised the Commission that they represented Colin Yow Tuck Fook and engaged with the Commission in relation to the Commissions’
question posed of Mr. Colin Yow.[10]
When I have regard to that statement of Leslie Kwaiga (filed 9 September 2016) and the manifold annexures, I am satisfied there has
been compliance with the provisions of section 13 and 14 of the Act so as to afford the claimant, whose conduct as CEO of the Solomon
Island Ports Authority was relevant to the inquiry, opportunity to be heard and represented. For by “LK-15”, the legal counsel assisting the Inquiry, by letter to L & L Lawyers dated 24 August 2016, advised:-
“Lazarus Kwaiga
L&L Lawyers
Office Suite 146
Land Mark Plaza, Town Ground
P .O. Box 1055
Honiara
Dear Sir,
Re: Further Request to appear before the Commission of Inquiry
I refer to your letter dated 22nd August 2016 and specifically to the second of the six items you list therein. The Commission agrees to your request to cross examine
witnesses testifying to the conduct and character of client Colin Yow.
As advised to you on the phone yesterday, we are in the process of making arrangements for you or your client to cross examine these
witnesses next week 30 August to 2nd September.
We will provide their sworn statements to you as soon as they are prepared so you can get instruction from your client.
Thank you
Yours Faithfully
Florence Joel
Legal Counsel Assisting
Commission of Inquiry into SIPA Reform”
On the 5 September L & L Lawyers made submission to the Commission raising the matters which form the basis of the claimants’
application to this court.
On the 6 September Legal Counsel Assisting the Commission wrote:-
“Lazarus Kwaiga
L&L Lawyers
Office Suite 146
Land Mark Plaza, Town Ground
P. O. Box 1055
Honiara
Dear Sir,
Commission of Inquiry’s Response to Submission dated 05/09/2016
Thank you for your submission.
Yours Faithfull
Florence Joel
Legal Counsel Assisting
Commission of Inquiry into SIPA Reform Program”
Mr. Kwaiga in his submission to this Court, directed my attention to the oath of office provision of the Act and by his earlier submission to the Inquiry complained;
“B. That the members of the Commission of Inquiry failed to declare prior to taking their oaths under section 6 of the Act, their position or interest or personal viewpoints/standpoints or professional work being under taken instructions which relate to and involve matters associated or connected to SIPA and our client as a person and as CEO of SIPA;
By his further sworn statement of 27 September 2016, he has annexed sworn statements of witness who appeared before the Commission. I have not named those witnesses, eight in number, witnesses whom the lawyer for the claimant say spoke to the claimants’ character and reputation. By publishing those statements in this fashion, the lawyer has ignored the Prime Minister’s directive that the Inquiry will be closed to the public.
His assertion that the members of the Commission who actually conducted the enquiry breached their oath of office has not been proven on the facts, rather the court is expected to infer that, through their position and experience, they may be expected to make adverse comments about the claimant. Such accusations cannot be countenanced when the lawyer, of his own volition, breaches the Prime Ministers intention to conduct the Inquiry in camera, a protection afforded witnesses and this claimant as such.
The manner in which Mr. Kwaiga seeks to become a witness in these proceedings by annexing material given him for the purpose of addressing the Inquiry is unacceptable and in so far as those confidential statements are concerned quite unprofessional conduct for the Report belongs to the Prime Minister, including recorded proceeding. The Prime Minister has not authorized Mr. Kwaiga to make public any such part of the material presumably forming part of or leadings to the Report.
Mr. Kwaiga has no protection by virtue of S. 16 of the Act for the publication of those statements in his affidavit is neither authorized by the Prime Minister nor material in evidence taken in a public inquiry.
I direct that the additional sworn statement of Leslie Kwaiga filed on the 27 September 2016 be taken from the file and destroyed
and that parties on whom such statement has been served shall return the statement to the Registrar for destruction.
No particular evidence to show these persons named in “LK-22” may be understood to breach their oath of office has been
shown, rather the allegation has been let lie. Where persons presumed to have the knowledge and skills associated with the matter
under Inquiry and who for those very reasons are appointed to conduct the Inquiry, are named as having “failed to declare their prior position or interest or personal view points/stand points or professional work being undertaken under
instructions which relate to and involve matters associated or connected to SIPA and our client as a person and as CEO of SIPA,” and by implication as a consequence of their standing and position are alleged to have breached their oath, cannot be supported
in the absence of direct evidence going to their actions in the course of the inquiry. In fact the evidence is to the contrary for
the Commission allowed the claimant representation and the right of cross examination as provided by under S.14 and S.13 of the Act
(relating to reputation and character).
Mr. Muria for the Attorney General and those other named defendants points to the natural justice aspect in the Act and says a right
to natural justice and procedural fairness arises in all proceedings “if that power is”:-
“One which may “destroy, defeat or prejudice a person’s rights, interests or legitimate expectations”... Thus,
what is decisive is the nature of the power, not the character of the proceeding which attends its exercise. That is not to deny
that provision may be made permitting or requiring procedures which are wholly inconsistent with a requirement of procedural fairness.”[11]
Certainly the Act provides provisions for procedural fairness and on the evidence in the 1st statement of Mr. Kwaiga, I am satisfied fairness has been afforded the claimant. He has however, rather negated the plea in denial of procedural fairness given him by publishing material of the Commission without the consent of the Prime Minister for statements of other witnesses, perhaps prejudicial to the claimant have been disclosed in these open court proceedings, in direct contravention of the Prime Ministers direction.
I am consequently, on the basis of the authorities quoted me, not satisfied the claimant has rights under S. 10 [8] of the Constitution capable of being breached by this Commission of Inquiry since it is not a court or other adjudicating authority and in so far as the further claims, 4 to 7 are concerned, since the Inquiry is one held at the direction of the Prime Minister “closed to the public” and on the evidence, the claimant had over the course of the Inquiry a right to be heard through his counsel ( and by statement) I am further satisfied the Inquiry cannot on the evidence, be said to have failed to afford the claimant a fair opportunity to be heard, whether directly or by counsel and I am satisfied he has been afforded “natural justice” . As was said in Mahon (no 2) (supra) in themselves, they [Commissions of Inquiry] do not alter the legal rights of the persons to whom they refer.
The second question, relating to the rules governing declarations, that the claimant “must have a real interest to raise it” cannot be answered in the affirmative. For as has been said so often ,a declaration “ is not a constitutive legal act as is, for example, a judgment for debt or damages, and except by giving to existing legal relations the status of a res judicata, it cannot change them”[12]. The claimant’s legal standing as the CEO of the Ports Authority, is not a matter for determination by this Commission, rather the Prime Minister may refer the Report to any other appropriate authority for consideration and if thought appropriate, action or the claimant may institute separate proceedings for substantive relief. The Inquiry is not a Court tribunal or body which has power to make an enforceable adjudication[13]. The claimant consequently has no real interest in the Report.
The third question, the attitude of a “proper contradictor” is plain.
By his submission, the Attorney General through his Chief Crown Counsel John Muria Jnr relies on the persuasive authority of the Australia
High Court in Balog v Independent Commission Against Corruption[14], that the Commission’s report may make recommendations but must not make a declaration or finding that a person is guilty of
a criminal offence.
“The Commission is primarily an investigative body whose investigations are intended to facilitate the actions of others in
combating corrupt conduct. It is not a law enforcement agency and it exercises no judicial or quasi-judicial function. Its investigative
powers carry with them no implication, having regard to the manner in which it is required to carry its functions, that it should
be able to make findings against individuals of corrupt or criminal behavior”
This court is concerned with our Commission appointed by the Prime Minister but the Act is quite clear in its intention by granting wide investigative powers while providing guidance for applicable rules of natural justice, rules which I have found to have been followed to the extent so as not to have afforded the claimant cause for protest. It has no function as a Court or quasi-judicial body and S.10 (8) of the Constitution does not apply in these circumstances. With that submission I agree.
The claimant’s last claim to a declaration is premised on the plea that the Commission is in contempt of proceedings in the High Court proceedings in CC. 185 of 2016.
The nature of the Commission is to investigate and report to the Prime Minister and it is not by its character a Court bound by structures of hierarchy of rights attendant courts. There is no reason an independent inquiry cannot investigate matters which may be relevant in separate court proceedings, but wholly different considerations apply. The claim has no merit.
I do not propose to enter upon argument in relation to the territorial application of the Constitution, it is quite unnecessary.
In my discretion I refuse all claims for declarations for the reasons given. The claimant shall pay the defendants costs.
__________________
BROWN J
[1] Russian Commercial and Industrial Bank v British Bank for Foreign Trades (1921) 2A C.438
[2] Per Bank L.J, (1915) 2KB 536, P 572
[3] Supra at 448
[4] Shaw v Shaw (1954) 2QB 441 Per Denning LJ
[5] Solomon Island Courts (Civil Procedure Rules, Chap 5)
[6] Cap 5
[7] Mahon v Air New Zealand (1983) UKPC 29
[8] “LK-5” Statement of Leslie Kwaiga
[9] “LK-4”
[10] “LK-6” Supra
[11] Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
[12] Dorney v Commissioner of Taxation (1980) 1 NSWLR 407 per Hutley JA at 408
[13] Guilfoyle v Home Office (1981)QB 309, (1981) 1 All E.R.943
[14] [1990] HCA 28; (1990) 169 CLR 625
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/sb/cases/SBHC/2017/16.html