Ontong Java Development Co Ltd v Viauli [2024] SBHC 52; HCSI-CC 26 of 2024 (24 May 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Ontong Java Development Company Ltd v Viauli
Citation:
Date of decision:	24 May 2024
Parties:	Ontong Java Development Company Ltd v Hugo Kivans Viauli, Hugo Kahango, Esau Angoa, Tom Panala Makaike and Joseph Peaka
Date of hearing:	24 May 2024
Court file number(s):	26 of 2024
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Aulanga PJ
On appeal from:
Order:	1. The three questions of law raised in the application to determine preliminary issue of law filed by the Second Defendant are answered in the negative. 2. Consequently, the entire proceeding is terminated pursuant to Rule 12. 11 and 12. 12 of the Solomon Islands Courts (Civil Procedure) Rules 2007 without proceeding to trial. Cost of this hearing is to be paid by the Claimant to the First and Second Defendants on standard basis
Representation:
Catchwords:
Words and phrases:
Legislation cited:	Solomon Islands Courts (Civil Procedure) Rule 2007, r12.12, 12.11, fisheries Management Act 2015 S 22 (2) and (3) (a) (i), S 22 (4)
Cases cited:	Auditor General v Attorney General [2005] SBHC 30, Kongungaloso v Attorney General [1999] SBHC 39, Boyce v Paddington Borough [1902] UKLawRpCh 174; [1903] 1 Ch 109

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 26 of 2024

BETWEEN

ONTONG JAVA DEVELOPMENT COMPANY LIMITED
Claimant

AND:

HUGO KIVANS VIAULI, HUGO KAHANGO, ESAU ANGOA, TOM PANALA MAKAIKE AND JOSEPH PEAKA
First Defendant

AND:

ATTORNEY GENERAL
(Representing the director of Fisheries)
Second Defendant

Date of Hearing: 24 April 2024
Date of Ruling: 24 May 2024

Mr J Seuika for the Claimant
Mr P Teddy for the First Defendants
Mrs R Soma for the Defendant

RULING ON PRELIMINARY QUESTIONS OF LAW

Aulanga PJ

1. This hearing is to determine preliminary questions of law pursuant to Rule 12. 11 and 12. 12 of the Solomon Islands Courts (Civil Procedure) Rules 2007.
2. On 1^st September 2021, the government of Solomon Islands gazetted an order (“2021 Order”) made by the Director of Fisheries pursuant to section 22 (2) and (3) (a) (i) read together with section 3 (b) of the Fisheries Management Act 2015. The 2021 Order is to prohibit the harvesting, buying, selling and other related activities with beche-de-mer in Solomon Islands. That restriction continues until it will be uplifted by a subsequent order to be made by the same authority.
3. The Claimant is a private legal entity licensed to undertake beche-de-mer farming in Ontong Java in the Malaita Outer Island. During the restricted period, the Claimant claimed the First Defendants, who are individuals from Ontong Java, have embarked on ongoing illegal commercial harvesting of beche-de-mer as prohibited by the 2021 Order. The Claimant through written correspondences reported the First Defendants to the Second Defendant for possible legal actions. The Second Defendant received the reports and issued written warnings to the First Defendants. Despite the warnings, they continued to breach the 2021 Order. It is on the basis of that continued illegal harvesting of the beche-de-mer that the Claimant decided to bring this legal proceeding against the First Defendants.
4. The case against the Second Defendant is unclear. The cause of action and liability against the Second Defendant is not clearly pleaded in the pleadings. However, on the face of the claim, it attracted one fundamental issue, decisive for the survival of this proceeding. That is, whether the Fisheries Management Act 2015 confers any right of private course of action to the Claimant to bring a civil proceeding against an individual or the State for breach of that legislation or an Order made pursuant to the legislation. Put another way, this question seeks whether or not the Claimant has locus standi to bring a claim purposely to enforce the provisions of the Fisheries Management Act 2015 against the First and Second Defendants.
5. At a mention on 11^th March 2024, the Court raised this issue to the parties and invited submissions on this issue pursuant to Rule 12.11 and 12.12 of the Solomon Islands Courts (Civil Procedure) Rules 2007. On 2^nd April 2024, counsel for the Second Defendant filed the application, posing three questions for the Court to consider. If they are answered in the negative, the entire proceeding can be terminated without proceeding to trial. These questions are; first, whether the Regulation (Prohibited Order) or the Fisheries Management Act 2015 confers any civil right of action for breach of its provisions to a private individual or entity like the Claimant. Second, whether or not the Claimant, as a private entity, has locus standi to bring the claim against the First and Second Defendants by using the Regulation (Prohibited Order). Third, whether or not there is cause of action in the claim against the First and Second Defendants.
6. Counsel Mrs. Soma and Mr. Teddy submissions in principle pointed to one conclusion. That is, all the questions should be answered in the negative. That is, the Claimant, as a private entity, does not have a locus standi to bring civil action under the Regulation (Prohibited Order) or the Fisheries Management Act 2015 against any private body or the State. That responsibility falls onto the State as the custodian of the Fisheries Management Act 2015 either by prosecution or civil proceeding. There is no express delegated provision in the 2021 Order or the Fisheries Management Act 2015 itself that authorises the Claimant to commence this civil legal proceeding against the Defendants. If anything to go by, that right of standing in Court, should be bestowed or exercisable only by the State. Hence, as collectively averred by the Defendants, this proceeding should be terminated without going to trial.
7. The Claimant on the other hand in principle submits upon the Court to accept that it has a special interest in the dispute because of the license granted to it by the government to undertake processing fishing activities including beche-de-mer within his customary land in Ontong Java prior to the 2021 Order. That is the same area the First Defendants have been harvesting the beche-de-mer. By implication, this will cause huge financial loss to its business. Hence, it has a locus standi to bring this legal proceeding against the First and Second Defendants.
8. Having considered the opposing arguments, the overarching issue derived from the three questions is; whether or not the Claimant as a private entity has locus standi to bring the claim against the First and Second Defendants for breach of the 2021 Order by using the Regulation (Prohibited Order) made pursuant to the Fisheries Management Act 2015. This issue in effect combines questions 1 and 2.
9. It is well recognised law both in and out of our jurisdiction that before the Claimant herein is entitled to commence the proceeding, it must have locus standi, that is, the right to come to the Court and ask for the order which it seeks from the Court. As said by Palmer CJ in Auditor General v Attorney General (representing Accountant General) [2005] SBHC 30 at [2], locus standi means "interests are being or are likely to be affected". The Court therein went on to explain it more broadly by merging explanations from other case authorities to mean at [2]:
   • “sufficient interest, having a genuine grievance or concern, not mere busybodies, a right, duty or liability which can be established by a court or an interest which affects the applicant not sentimentally, academically or remotely, or someone having suffered special damage for adverse detriment. These are definitions which assist court in exercising its discretion as to whether or not an applicant has locus.”
10. In Kongungaloso v Attorney General [1999] SBHC 39, the Court stated that it is a precondition to possessing locus standi that the applicant must have a special interest in the subject matter of the dispute. The Court then continued to state that the Courts have developed the rules about standing to sue or locus standi in civil disputes over the years to suit the circumstance of the case before the Court. The law now is such that individuals have now been accorded standing to sue for the vindication of public rights on certain conditions as laid down in Boyce v Paddington Borough Council [1902] UKLawRpCh 174; [1903] 1 Ch 109 where Buckley J stated:
    • “A plaintiff can sue without joining the Attorney-General in two cases: first, where the interference with the public right is such as that some private right of this is at the same time interfered with (e.g., where an obstruction is so placed in a highway that the owner of premises abutting upon the highway is specially affected by reason that the obstruction interferes with his private right to access from and to his premises to and from the highway); and where no private, right is interfered with, but the plaintiff, in respect of his public right, suffers special damage peculiar to himself from the with the public right.”
11. It is also important to note that the Courts now apply the test more liberally on case by case basis once the applicant’s interest to the subject matter in dispute is affected. That interest must be special to the applicant and not too indirect, remote or insignificant to the reliefs sought in the claim.
12. The Fisheries Management Act 2015 is a public law. It makes specific provisions, in particular, section 22 (2) and (3) (a) (i) read together with section 3 (b) of the Fisheries Management Act 2015 for the Director of Fisheries to make the Regulation (Prohibited Order). A breach of the order issued pursuant to the provisions, is a criminal offence to be enforced by the State through prosecution pursuant to section 22 (4) of the Fisheries Management Act 2015. Our Parliament has intended it to be enforced in that prescribed manner. The State is the custodian of this legislation. Unless it is expressly stated by the law, the State as the custodian of the 2021 Order and the Fisheries Management Act 2015 has the express power to prosecute an individual or entity for breach or violation of the provisions of the Fisheries Management Act 2015. In the same analogy, the State also has an implied power to institute civil proceeding against any breach or violation arising from that legislation.
13. The Claimant herein is a private and business entity. It has granted fish and fish processing license to operate in Ontong Java in the Malaita Outer Island. For the case of beche-de-mer, it is required to comply with the 2021 Order as well. What the Claimant is seeking in the claim is to enforce the breach of the 2021 Order made pursuant to the Fisheries Management Act 2015. The Claimant now wants to take over the role of the State for its own pecuniary advantage. With respect, the claim and the reliefs sought by the Claimant for this proceeding are fundamentally flawed for the obvious reason that there is no express statutory provision in the Fisheries Management Act 2015 that confers the right to the Claimant to commence a private course of action against another individual or the State’s agency for the breach of the 2021 Order. Furthermore, there is no evidence from the Claimant to show it has the mandate or sanction from the Second Defendant to enforce the Regulation (Prohibited Order).
14. For this case, all I can conclude is that there is an apparent lack of legislative authority on the part of the Claimant to enforce the 2021 Order and for that reason, I do not see any private right or special interest of the Claimant been affected by that omission beyond that of any member of the public. The fact that the Claimant is also prohibited from engaging in the beche-de-mer commercial and related activities following the operation of the 2021 Order also excludes any special interests it has in the dispute. The Claimant cannot legally assert that its special rights to the beche-de-mer in the Ontong Java has been affected by the actions of the First Defendants committed during the period of the 2021 Order. There is nothing much the Claimant can do other than to assist the Director of Fisheries with evidence for the prosecution of the First Defendants pursuant to section 22 (4) of the Fisheries Management Act 2015.
15. For these reasons, questions 1 and 2 in the application to determine the preliminary questions of law are answered in the negative.
16. For the third question of whether or not the claim discloses a cause of action against the First and Second Defendants, it is my view that it also connects to the other two questions. As a result of the Court’s findings on the previous two questions, it must follow that there is no cause of action recognised in law available to the Claimant. I do not see any legal basis that the Claimant can successfully obtain the reliefs sought in the claim even if leave to amend the claim is granted. For this reason, it is my view that question 3 must also be answered in the negative.
17. Whilst I sympathised with the ardent effort of the Claimant to institute the proceeding in the Court for the purported breach or violation of the Fisheries Management Act 2015, unfortunately, it was based on loose footing. Hence, it is my view that this proceeding must be terminated or dismissed pursuant to Rule 12. 11 and 12. 12 of the Solomon Islands Courts (Civil Procedure) Rules 2007 without proceeding to trial. Cost of this hearing is to be paid by the Claimant to the First and Second Defendants on standard basis, to be taxed if not agreed.

Orders of the Court

1. The three questions of law raised in the application to determine preliminary issue of law filed by the Second Defendant are answered in the negative.
2. Consequently, the entire proceeding is terminated pursuant to Rule 12. 11 and 12. 12 of the Solomon Islands Courts (Civil Procedure) Rules 2007 without proceeding to trial.
3. Cost of this hearing is to be paid by the Claimant to the First and Second Defendants on standard basis, to be taxed if not agreed.

THE COURT
Augustine S. Aulanga
PUISNE JUDGE