Attorney General v Kala [2018] SBHC 66; HCSI-CC 576 of 2015 (11 June 2018)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Attorney General v Kala
Citation:
Date of decision:	11 June 2018
Parties:	Attorney General v David Kala
Date of hearing:	29 March 2018
Court file number(s):	576 of 2015
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona PJ
On appeal from:	Auki Magistrates Court
Order:	1. Appeal allowed. 2. Case remitted back to Magistrates Court, Malaita, for rehearing, to commence from the stage of applying for leave. 3. Cost is to be paid to the Appellant by the Respondent.
Representation:	Mr. E Kii for the Appellant Mr. L Kwana for the Respondent
Catchwords:
Words and phrases:
Legislation cited:	Crown Proceedings Act.
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 576 of 2015

ATTORNEY GENERAL
(Representing Malaita Provincial Government)
Appellant

DAVID KALA
Respondent

Date of Submission: 29 March 2018
Date of Judgment: 11 June 2018

Mr. E. Kii for the Appellant
Mr. L. Kwana for the Respondent

JUDGMENT ON APPEAL

Faukona PJ: This is an appeal against the determination by the Auki Magistrates Court delivered on 25th June 2015. Following the Court decision enforcement orders were issued on 19th October 2015.

2. The Appellant, the Attorney-General, then appealed to this Court by filing notice of appeal on 9th November 2015.
3. The notice of appeal raised two grounds. They can be paraphrased as below;
   • (a) Erred in law and in fact in issuing the said Enforcement Orders against the Appellant contrary to Section 23 (1) and (4) of the Crown Proceedings Act.
   • (b) Alternatively, erred in law and in fact in issuing the Enforcement Orders against the Appellant contrary to Section 18 (1) (b) and (2) of the Crown Proceedings Act.
4. The appeal by its content, seems to focus on the processes involve in issuant of such orders. There is nothing pleaded on appeal in relation to prior processes which led to the issuant of the enforcement orders. Suffice to comment, generally, otherwise Court would have obligated to investigate deeper to discover whether the process applied were in tune with the rules or not.

Grounds 1:

5. This ground premise on S.23 (1) of the crown Proceedings Act. This Section upholds the requirement that any order made in favour of any person against the Crown or its officer or against a Government department, on any time after expiration of twenty one days from the date of the orders, or after costs had been paid, a proper officer of the Court to issue to that person a certificate containing particulars of the order.
6. Section 23(4) of the Act affirms that no execution or attachment or process shall be issued by any Court enforcing payment by the Crown of any money or costs as aforesaid and no person is individually liable under the order for the payment by the Crown of such money or costs.
7. The Counsel for the Appellant argues that no one from the Magistrates Office in Auki had issued a certificate containing particulars of the order, twenty one days after it was given, to the Respondent as required by S.23(1) of the Act, which a copy should be served upon the Crown. Therefore enforcement order cannot be issued enforcing payment by the Attorney General of such money.
8. In response to ground 1 the Counsel for the Respondent make reference to order 3 of the Enforcement Order issued by the Magistrates Court, Auki, on 19th October 2015. Order 3 specifically states, “This order expires within 1 year of this date.”
9. The argument the Counsel advances is that since the order had been expired on 19th October 2016, there was no order existed and nothing to enforce, it has no life any longer.
10. In assessing those simple arguments, there can be no doubt no certificate was issued by the Court to the Respondent within twenty one days after the order was issued. There was no material evidence or copy of the certificate on file. There is no mention of such by the Counsel for the Respondent either. It is a clear case of none compliance with S. 23(1) of the Act.
11. If in the circumstance where no certificate was issued, then S.23 (4) must automatically come into play. That is to say, no execution can be issued by the Court enforcing payment by the Crown. The law in my opinion is so clear as crystal. There is no need for me to apply other mode of interpretation of law such as applying the golden rule or the mischief rule. Literally, the grammatical construction of the provisions is clear and unambiguous. All am obligated to do is to apply the literal rule to interpret the law as it is with no additional or amendment.
12. The fact that the enforcement orders were expired, so the court lacks jurisdiction to exercise to determine its existence, has no legal ramification at all. Indeed the Counsel for the Respondent had misconceived himself on this point.
13. As close and neatly as I can, the expiration of enforcement orders do not render such orders dead permanently. Naturally they are temporarily dead but can be revived by way of an application to reinstate, after which they are capable of being enforced. The expiration period was merely an ultimatum for the orders to be executed expeditiously. The orders of that nature do not expire forever; they are merely lay in dormant and will revive to breath new air by an order of Court for that purpose.
14. Generally, the expiry of the enforcement order does not bar the jurisdiction of this Court to determine whether the grant or issuant of such orders were made according to law. The above expositions manifest in the two provisions enable me to conclude that the enforcement orders were invalid and were issued contrary to the two relevant provisions. I must therefore allow the first ground.

Ground 2:

15. This ground is treated as an alternative to ground 1. By allowing ground 1, it appears sufficient to conclude on the entire appeal. However, I consider it is fair and just to address this ground as well.
16. This ground is intended to address the legal requirements in sections 18 (1) (b) and (2). From my reading of the provisions, I am verily sure that S.18 (1) (b) is not applicable in so far as the circumstances of this case are concerned.
17. In respect to S.18 (2) of the Crown Act, the section refers to the officer of the Crown. I do not think Officer of the Crown is a Provincial Assembly. The word “Officer” in the subsection refers to individual person or an employee of the Crown.
18. My Opinion on the interpretation is that this provision is a guiding star. The Court is guided that it will not order an Officer of the Crown, related to action taken against that Officer, if by making such order the Claimant is entitle for a relief against the Crown but that officer. Personal actions of that Officer, independently and not connected to the cause of his employment, should be personally liable and not the Crown, so that the Claimant cannot entitle for relief as against the Crown but as against the Officer.
19. It I am correct then to run a case premise on that concept is a misconception of the law. And S.18 (2) of the Act does not assist the Appellant so far as ground 2 is concerned.
20. To assume S.18 (2) provides basis to challenge and question whether services done in the lower Court is according to the Rules.
21. I agree with the Counsel for the Respondents that those issues were never part of the appeal or were never pleaded in the notice of appeal. Therefore it would be out of context to raise them now on submissions.
22. In respect to other issues raised by the Appellant, because of the defect in interpreting S.18 (2), those issues become redundant and are not worthy to attract any commentary from me, hence I must frankly abandon them.
23. On passing, let me allude to a particular point which I noted from documentary evidence. From the record of the lower Court I do not seem to find any proceeding in regards to “application for leave” by the Respondent (Mr Kala or his Counsel) whether in oral or in writing. The purported record of the court sitting on 5th February 2015 at 3.15 pm did not record that the Respondent had made any oral application at all. The record did not show the Respondent actually and verbally apply for leave. All that was recorded was what the Court had written. At the end thereof there was no record in the minutes that leave was granted. However, it appeared in direction orders on 5th February 2015, the same date the Court presided.
24. It may be out of misconception or misunderstanding of the rules that once the Crown was a party to a cause of action and fails to file defence on time, then application for leave must first be heard whether orally or formally. If written then application for leave and other documents must be served on the Crown before the date of hearing. If this has not been done the application for default judgment leave is void. If leave is finally granted, then a party can apply for default judgment. Not forgetting the application and sworn statements in support must be served as well.
25. The last two paragraphs may appear as part of teaching or mentoring for the concern learned Magistrate.
26. In conclusion I have allowed ground 1 to succeed and disallow ground 2. On the entire appeal. I therefore allow the appeal with costs. The case is remitted back to the Magistrates Court for re-hearing. The starting point in the process should start from the application for leave.

Orders:

1. Appeal allowed.
2. Case remitted back to Magistrates Court, Malaita, for rehearing, to commence from the stage of applying for leave.
3. Cost is to be paid to the Appellant by the Respondent.

The Court