Muaki v Leadership Code Commission [2018] SBHC 42; HCSI-CC 469 of 2016 (29 March 2018)

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case Number 469 of 2016

BETWEEN: ANDREW MUAKI - Claimant

AND: LEADERSHIP CODE COMMISSION -Defendant

Date of Hearing: 26/10/2017 and 23/01/2018 (Further written submissions).
Date of Decision: 29^th March 2018.

Mr. W. Rano and Mr. B. Kaehuna for Claimant.
Mr. S. Banuve (Solicitor General) for Defendant.

KENIAPISIA; PJ:

RULING ON CHAPTER 15 CONFERENCE

Introduction

1. This judicial review claim came for chapter 15 conference on 26/10/2017. At such conference, claimant has to satisfy the court on four matters, before the court can proceed to hear the claim. The four matters in the order they appear in Rule 15.3.18 are: (i) claimant has an arguable case; (ii) claimant is directly affected by the subject matter of the claim; (iii) there has been no undue delay in making the claim and (iv) there is no other remedy that resolves the matter fully and directly.
   

First 3 matters satisfied through concession

2. Claimant took the onus to take the court through these four matters^[1]. Almost half way through oral submissions; Solicitor General intervened to say that defendant only contested the fourth matter. Court directed counsel for the claimant to go to the last page of his written submission; which deals with the fourth matter on “other remedy”.
   
3. Realising that both counsel made brief submissions on the last, yet contested fourth matter, I adjourned and called for further written submission on “other remedies” only. I gave 2 weeks, but as it turned out, one came in a month late. The other 3 months late (23/01/2018).
   
4. On the concessions, claimant has satisfied the court on the first three matters under Rule 15.3.18 (a) – (d). Case law says court must be satisfied on all four matters. This is why I now consider the last matter on “other remedy”.
   

Last matter on “other remedy” contested

5. The Leadership Code (Further Provisions) Act 1999 (No 1 of 1999), Section 24 (3) provides:
   

“Any leader, who is aggrieved, by the decision of the commission, may appeal to the High Court”.

6. On this statutory appeal provision, claimant endeavoured to make the distinction that his case is not one of a leader who is aggrieved by the decision of the Commission. Claimant’s case is really questioning the manner in which the decision was made. And challenging the manner in which the decision was made is a judicial review claim tenable under Section 77 of the Constitution^[2] and Rule 15.3.2 and 15.3.4. Claimant submitted that the remedy of statutory appeal goes to the merit of the defendant’s decision, not the manner in which the decision was made (process). Claimant is challenging the process not the merit.
   
7. To understand claimant’s contention and to determine whether another remedy is available to resolve this dispute fully and directly; I will examine the nature^[3] of the claimant’s dispute.
   
8. Much of the pleadings and sworn statements are centred on the claimant’s factual response to the allegations made against him, before the Commission. Had claimant appeared before the Commission, these would have been his case in defence (Paragraphs 17-38 of the Amended Claim). The same are also covered in the sworn statement (“ss”) Muaki filed on 31/10/2016.
   
9. In great length; claimant also criticized the evidence upon which the Commission made its decision, saying the evidences were: superficial, not corroborated, not credible, inadmissible, insufficient and not independent (ss by Muaki filed 31/10/2016). The same are also covered in paragraphs 17–38 of the Amended Claim.
   
10. Furthermore, in paragraphs 5–16 of the Amended Claim, claimant pleaded the Commission erred in law. Attack on evidence was again repeated as error of law. The $10,000.00 fine is alleged to be excessive and error of law. Attack was also made that the Commission was not the competent forum to deal with the offence put against claimant. Claimant also raised breach of natural justice in not hearing him before making a decision and non-disclosure. That Director of Public Prosecution (DPP) should have been involved. The omission of the DPP resulted in an unfair fact finding process, because being a criminal offence, the standard of proof is beyond reasonable doubt.
    
11. Having considered the materials as summarised above in paragraphs 8, 9 and 10 court is of the considered view that claimant is aggrieved by the decision of the Commission dated 18^th May 2016. Claimant is aggrieved by the merit of the decision and the manner in which the decision was made. Whether against merit or against the manner, it is all the same as being aggrieved by the decision of the Commission. The statutory appeal provision; does not place restriction on the types of appeal matters, that can be appealed to the High Court. It only says that anyone who is aggrieved by the decision of the Commission has a right of appeal to the High Court - Section 24 (3) of the Act.
    
12. This makes perfect legal sense; because under the Act, the Commission becomes a Magistrate Court, when it conduct inquiries after its investigation. Section 23 (6) of the Act relevantly states:
    

“Where the Commission on completion of the investigation proceeds to hold an inquiry under this part, the same practice and procedure as applicable under the Magistrates Courts shall as far as circumstances permit apply mutatis mutandis to the proceeding before the commission.”

13. Claimant’s attack on witnesses and evidence processed by the Commission goes to question the practice and procedure on conduct of witnesses and evidence at conclusion of investigation; when Commission will hold inquiries. Holding an inquiry; I would imagine would be similar to a trial in the Magistrates Court, where witnesses take oath, are examined in chief and cross examined. If claimant is aggrieved by how the Commission fell short of the standards of Magistrates Court procedure and process; regarding conduct of evidence at trial, he should appeal so that High Court can review the Commission’s decision, under its supervisory powers over Magistrate Court standards.
    
14. On error of law, if the Commission had misapplied the procedure and process in the admission of evidence and witnesses at the inquiry stage, falling short of the standards of the Magistrates Court, those can also be resolved fully and directly on an appeal to High Court. Legal arguments can be made in the High Court. The same will apply to errors of law alleged and other complains claimant raised in this claim. An appeal can fully and directly resolve claimant’s grievances either on the merit or in regards to processes short fall or on issues to do with error of law.
    
15. Supposing claimant appeals to this Court and succeeds on appeal grounds that is made against Commission falling short of Magistrates Court standard procedures and process in relation to conduct of witness and evidence, High Court may send the matter to the Commission for re-hearing. If that were to happen, that would resolve all other complains that claimant raised in this claim. High Court may also make pronouncements on other issues raised like: DPP should be involved; whether criminal standard of proof is required; excessive fine; non-disclosure; breach of natural justice and declarations or orders on whether there was errors of law etc. The remedies/reliefs claimant sought for declarations and quashing orders could be accommodated via an appeal to this Court. This Court could declare the decision of the Commission null and void. Same effect as in a quashing order.
    
16. Where a remedy is provided by statute, is convenient and available; and is prior in option^[4] this court cannot interfere as yet. This court may be called upon through an appeal under Section 24 (3) of the Act. Until that remedy is utilized as the prior, convenient and available option; this court is not satisfied on the fourth matter.
    

Conclusion and Orders

17. Accordingly, the claim is dismissed. Court will not hear the claim. Cost against claimant on standard basis.
    

THE COURT

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JOHN A KENIAPISIA
PUISNE JUDGE

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^[1] During oral submissions at the hearing on 26/10/2017.
^[2] High Court original unlimited jurisdiction to hear civil matters.
^[3] Mereki –v- Attorney General (2014) SBHC 94; HCSI-CC 59 of 2014 (30^th June 2014).
^[4] Ratusia –v- Attorney General (2016) SBHC 53; HCSI-CC 125 of 2015 (8^th April 2016).