HIGH COURT OF SOLOMON
IS
HC-CC NO: 114 of 1999
SOLOMONS MUTUAL INSU
LIMITED
-V-
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CONTROLLER OF INSURANCE AND
DIRECTOR OF PUBLIC
PROSECUTIONS
HIGH COURT OF SOLOMON ISLANDS
(PALMER J.)
CIVIL CASE NO: 114 OF 1999
HEA 5th July 1999
RULING: 4th August 1999
MOTIS PACIFIC LAWYERS FOR THE
APPLICANT
NO APPEARANCE BY FIRST
RESPONDENT
A. RADCLYFFE FOR THE SECOND
RESPONDENT
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PALMER J.:
Tplicant is a private limiteimited liability company incorporated under the
Companies Act, [Cap. 175] and duly registered under the Insurance Act to
transact and carry on insurance business in Solomon Islands. Towards end of
1998, an investigation was ordered by
the Second Respondent into the set-up
and establishment of the Applicant (hereinafter referred to as "SMI"). On
December 11 1998, an article was carried on the front page of Solomons Voice
newspaper (Volume 6, Issue 338) headlined
in bold "DPP orders criminal
investigation of SMI" (see exhibit "JT10"). That article contained the
following quote:
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"In the letter, the DPP says
that the documled him to the conclusion tion that a criminal investigation
was called
for. Also in the letter, the DPP directed the Insurance
Controller to withhold his approval for the transfer r of funds (Reinsurance
Premium) to Swiss Underwriting Services Limited in Singapore
until the criminal investigation is completed."
As a result of the direc
from the Second Respondent to the First Respondent, the Applicant alleges it
ha has suffered
prejudice and damages to its reputation and business, and hence
seeks to come to this Court for relief.
SMI filed an (ex-parte) for
lea 30th March 1999, together with a Statement Accompanying thng the
Application for leave,
and affidavit in support of John Tomun, to apply for
redress under section 18(1) of the Constitution. The application came
before
me on same date and orders made inter alia, as follows:
"1. & &nbsat lsat leave be
granted tted to the Applicant to apply to the Court for redress under Section 18
of
the Constitution."<
On 12 Apri9, the Second
Respondent filed Memorandum of Conditional Appearance and Summons interinter alia,
to strike out
the proceeding before the Court. That Summons sought orders as
follows:
"sp; that the
c prongedingsdings be struck out under Order 27 Rule 4 or the Court's inherent
power on the grounds
that (a) they are frivolous and vexatious or (b) that
they may prejudice, embarrass or delay a fair trial or (c) that they
are an
abuse of process in that they are intended to interfere with the lawful
exercise of the Second Respondent's powers
under Section 91 of the
Constitution.
2. ;&nbssp; &nsp; Tsp; The Court has no powers to make the orders sought against the Second Respondent, in his
capacity as an officer of the Crown by virtue of section 18(2) Crown
Proceedings Act (Cap 8)hat tlief sought couldcould not not be obtained
against Crown and the Second Respondent prosecutes cases on behalf
of the
Crown.
3. & p;&nbbsp;&bsp;&nbp;&nbp; That the grg
of leav leave be set aside on the grounds that the Applicant could have used
altere remedies, namely sue for malicious prosecution and/or trespass
to goods oods or forr for the malicious procurement
of the issue and execution of a
search warrant.
4. & p;&nssp; Tsp; That that the
proceedings be s be stayed pending the completion of the preliminary inquiry at
the Magistrates Court and the High Court trial, if any."
On 10th May 1999, the Applicant
filSummons to have the Summons of the Second Respondent strucktruck out
under Order 21
Rule 29 and Order 27 Rule 4 of the High Court (Civil
Procedure) Rules 1964 and or the constitutional and or the inherent
jurisdiction of the Court on the grounds that:
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(1) it is unneces
ary o can scandalous;
 
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>
(2) p; isp; it is an abuse of
the process of the Court;
>
(4) &nbbsp; it is frivolous
s
and vexatious.
&
Both Summons were heard on 5th
July 1999.
The gist of the Applicant's
Summons seeks to challenge the rif any, of the Second Responespondent to
rush to Court and
to apply inter alia, to have the grant of leave set aside.
Mr Moti for the Applicant submits that the matters raised in the
Summons of
the Second Respondent should be more appropriately raised during the hearing
of the Notice of Motion itself
than at this juncture.
RIGHT TO APPLY TO HAVE LEAVE
ET ASIDE.
The issue this raises is
whether there is a right to apply to have leave set aside in this instance
and whether this Court
has jurisdiction to entertain such application. If
this Court should uphold Mr Moti's submissions then this Court would not
need to deal with the Second Respondent's application. That will have to
wait and be dealt with together in the hearing
of the Notice of Motion.
SECTION 18 OF THE CONSTITUTION.
The action against the Sec Respondent had been brought under subsection 18(1) of the Constitution. That
sub subsection
states as follows:
"18. &nbsbjecthto t
provisions of subsection (6) of this section, if any person alleges that any
of
the provisions of section 3 to 16 (inclusive) of this Constitution has
is bor isly to b to be cone contravetravened in relation
to him (or, in the
case of a person who is detained, if any other person alleges such a
contravention in relation to
the detained person) then, without prejudice to
any other action with respect to the same matter which is lawfully
available,
that person (or that other person) may apply to the High Court
for redress."
<
As correctly submitted by Mr
Moti, subsection 18(l) is the foundation for a person's right to apply to
the High Court
for redress of alleged contraventions (whether past, present
or future) of the provisions of sections 3 to 16 of the Constitution.
It
empowers the complainant to approach the High Court for redress.
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The first hurdleefore
which a complainant has to overcome is that he/she has an allegation that
any of the provisions
of sections 3 to 16 ". . . has been, is being or is
likely to be contravened in relation to him . . .". In this particular
instance, the Applicant alleges that the actions of the Second Respondent,
in advising the First
Respondent to withhold approval for the transfer of
funds (Reinsurance Premium) to Swiss Underwriting Services Limited in
Singapore, amounted to a breach of its rights as provided for under sections
3, 10 and 15 of the Constitution (see Paragraph 4(e) of the Statement
Accompanying the Application for Leave filed 30th March 1999).
I was satisfied on 30th March 1999 when the application for leave was brought before me that the Applicant
fulfilulfilled this
basic requirement and thereby had right to come to court for
redress. No submissions of the Second Respondent have convinced
me that the
Applicant did not have right to come to Court for redress.
The jurisdiction of this Court
to hear and determine any such aation brought by any personerson pursuant to
subsection
18(1) is contained in subsection 18(2). The question of
jurisdiction is not in issue here.
THE APPLICATION FOR LEAVE.
The right of an applicant to
commence an action for rs under section 18(1) of the Constitution is
governederned by Order
61A of the High Court (Civil Procedure) Rules, 1964. Order
61A sets out the guidelines by which such an application can be
commenced.
Rule 1(1) requires that no
applicacan be made without leave. That simply means if an applicanlicant
wishes to commence
an action for redress under section 18(1) he has to first
obtain leave. Rule 1(2) in turn sets out how the application for
leave is to
be made. I quote:
"An application for leave
shall be made ex parte to the Court and shall be accompanied:-
<
[a] ;&nspp; bs a statement
setting out the name and description of the applicant, the redress sought
and the
grounds upon which it is sought specifthe sn or ons
of thstitution alleged tged to havo have beee been conn contravetravened (hereinafter
called
"the statement accompanying the application for leave"); and
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nbsp; avfida t
ver yirifying ying the facts relied upon."
These requirements have been
complied with byApplicant to the letter. The Applicant's application
for leave was listed
before me for hearing on 30th March 1999.
Rule 1(4) sets out some of the
matters the Court should observe when considering such application These
include the following
considerations:
<
Rule 3 then provides that when
leave had been granted, the application was tcommenced by notice of
motion with at
least eight clear days between service of notice of motion
and the date of hearing. Before the application however could be
made by
notice of motion, the Second Respondent applied to have leave set aside,
relying on the inherent jurisdiction
of this court and or the Civil
Procedure Rules.
<
It is my considered view, that
the Applicant is ct in its submissions, that that in relation to the
question of leave,
it would be improper for this court to entertain such
application. The duty of the Court in such circumstances in my respectful
view is to proceed to hear the notice of motion. In the case of Mitchell
v. A-G (1986) 3 O.F.C.S. Law Reports 246 at 254, where an identical
provision was cited, Liverpool JA in the Grenada Court of Appeal
made this
position clear:
"It seems to me that the
clear intention of this section is that where suce such an allegation is made and
on an
application the High Court, it must hear and determine the
application; but there is a discretion to decline to exercise its
powers to
make declaration or orders, issue writs, and give directions, if it is
satisfied that adequate means of redress
are or have been otherwise
available to the applicant. So that where it is claimed that fundamental
rights have been
infringed the Court must, subject of course to the exercise
of its statutory discretion in the proviso, give such remedy as
it considers
appropriate. But in every case, there must be the exercise of a judicial
discretion in the granting or refusal
to grant that remedy. This discretion
can only be properly exercised after a hearing on the merits."
Where orders however, have also
been made in conjunction with the grant of leave against a prospective
respondent, it
may be necessary at times to apply to Court to have those
orders varied or discharged prior to the commencement of the notice
of
motion. That however should not affect the grant of leave made by the Court.
As correctly pointed out by Mr Moti in
his submissions to this Court, the
sole function of the leave procedure is to filter out those applications
which are
"frivolous and vexatious" or where it is felt adequate means of
redress � are available ... under any other law".
Having gone through that
filtering process, the Applicant is then given the authority or permission
to commence an action
proper for redress under section 18(1) of the
Constitution. The granting of leave is nothing more than saying yes to the
Applicant to institute action for redress under section 18(1) of the
Constitution.
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As correctly submitted by Mr
Moti, the Summons of the Second Resnt is fundamentally misconcsconceived. It
misconceives
the purpose for which leave had been granted; viz., to obtain
permission or authority from the Court to institute an action
for redress
under section 18(1). The Summons of the Second Respondent in essence seeks
to abort that right, and thereby
indirectly to deny the Applicant of his
right to commence action for redress under section 18(1) of the
Constitution.
In my respectful view that is a wrong use of the right to
apply to have the proceedings for leave struck out whether under
the High
Court Rules or the inherent jurisdiction of this Court and with respect
cannot be permitted by this Court. The
right of the Second Respondent is
still preserved and can be addressed at the hearing of the notice of motion
proper.
ORDER 27 RULE 4:/p>
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The Second Respondent relies on
Order 27 Rule 4 to support his application to have the proceedings for leave
struck out
but in my respectful view, that reliance is misplaced. It is not
open to the Second Respondent to rely on Order 27 Rule 4 to
have leave set
aside in this particular instant for the following reasons. Order 27 Rule 4
can only be invoked in the
circumstances of this after the notice of motion
had been filed and served. Until that is done, the Second Respondent has no
right to come to Court and try and prevent the Applicant from instituting an
action for redress duly sanctioned by the
Court. The right of an applicant
to come to court and to commence an action for redress is expressly provided
for under
Order 61A of the High Court (Civil Procedure) Rules, 1964. Once
that has been complied with, an applicant has right to come
to Court for
redress. It is nonsensical for the Court to give leave on one hand, then
immediately thereafter to allow
that leave to be attacked even before an
action had been commenced. If for any reason the presiding judge considers
it
proper that leave be dealt with by way of an inter partes hearing, then
that would have been made known from the beginning.
But even if this Court
should have inherent jurisdiction to have the proceedings where leave had
been obtained struck
out, I would not be prepared to grant such order, on
the grounds that not only do I consider it to be unnecessary but an abuse
of
the process of the Court in the circumstances of this case.
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It is my respectful view the
proper procedure anticipated by Order 61A, in particular Rule 6, was for the
Second Respondent
to wait until the notice of motion had been filed and
served together with all other papers filed, before his right to apply
and
have that leave set aside should be invoked.
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In any evey application to
have the proceedings struck out can only be effectively invoked at t at the
hearing of notice
of motion unless there is particular reason why that
should not be so. Obtaining leave is simply a procedural first step,
undertaken by an applicant, normally without the involvement of the
respondent, unless of-course the Court so
directs. In
that instance, it is not anticipated that any application should be made to
have leave set wide immediately after it
is obtained and before the notice
of motion is filed. Strictly speaking, the action against the Second
Respondent is
yet to be commenced; only leave had been obtained from the
Court and that is a matter for the Court to decide at the ex-parte
hearing.
Once leave is obtained that paves the way for the action to be commenced.
Whilst the pleadings referred
to in Order 27 Rule 4 include the Statemenompanying the Application fion for
Leave and documents
filed together with the notice of motion, it is my
respectful view Order 27 Rule 4 can only be invoked at the point of time
the
notice of motion is duly filed. Only at that point of time can it be said
the proceedings are on foot and thereby
open to attack under Order 27 Rule
4.
I am not satisfied the
proceedings sought to be brought against the Second Respondepondent are frivolous
and vexatious
or that they may prejudice, embarrass or delay a fair trial.
There is virtually no evidence to support any such submission.
I am also not satisfied, the
said proceedings amount to any abuse of process in any way. It should also
be pointed out
that the issues raised in paragraph 1 all link up to the
question whether the notice of motion filed for redress by the Applicant
amounts to an interference with the lawful exercise of the Second
Respondent's powers under section 91 of the Constitution.
That issue however
is closely related to the issue raised in the Applicant's notice of motion
anyway; that the Second
Respondent lacks such power under section 91 of the
Constitution and that it would have been considered during the hearing
of
the notice of motion at any rate. In my respectful view that is the rightful
place for determination of the issues
raised in paragraph 1 of the Second
Respondent's Summons. Accordingly I decline to deal with those issues here.
PARAGRAPH 2 OF THE SUMMONS OF
THE SECOND RESPO - SECTION 18(2) OF THE CROE CROWN PROCEEDINGS ACT (CAP. 8):
Paragraph 2 of the Second
Respo's Summons seeks to submit that the Court had no power to m to make
orders against the
Second Respondent in his capacity as an officer of the
Crown by virtue of section 18(2) of the Crown Proceedings Act (Cap. 8). The
question however whether this provision would provide a shield of immunity
to the Second Respondent in
the circumstances of this case is immaterial to
the issue of leave to commence an action for redress under section 18(1) of
the Constitution. It is more appropriately a matter for determination at the
hearing of the notice of motion than by
way of a Summons seeking an order
that the Court had no power to make the orders it seeks in its notice of
motion. What
it seeks to challenge is the power of this Court to issue the
kind of relief sought, not the jurisdictional base of this Court,
which is
not denied in this particular instance. To that extent, not only is it
inappropriate and unnecessary, but amounts
to an abuse of process and
therefore ought not to be dealt with in this application.
ALTERNATIVE REDRESS:/p>
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The issue raised under this
ground with respect is also a matter which quite properly ought also to be
dealt with at the
hearing of the notice of motion and cannot be a basis for
having leave set aside once leave had been obtained. If it transpires
at the
hearing of the notice of motion that leave ought not to have been given
under this ground, that is no impediment
because the Court can simply refuse
to make the orders sought in the notice of motion (see proviso to subsection
18(2)).
STAY OF PROCEEDINGS PENDING
PRELIMINARY INQUIRY:
On the issue of whether these
proceedings should be stayed pending completion of the preliminary inquiry
at the Magistrates
Court and the High Court trial, it should be pointed out
this action for redress is a separate and distinct matter raised under
the
Constitutional provisions and that I fail to see any good reason why this
should be unnecessarily stayed when the
issues raised are capable of
determination on their own quite apart from that inquiry. Mr Moti has made
it abundantly
clear his client does not seek a stay of those preliminary
proceedings in the Magistrates' Court. He also points out the orders
sought
against the Second Respondent have no connection with his role in
instituting and participating in the conduct
of criminal proceedings. I am
not satisfied these proceedings should be stayed pending determination of
the preliminary
inquiry.
CONCLUSION:
I find with respect the Summons
of the Second Respondent to inter alia, striketrike out the proceedings
pertaining to
the issue of leave, to be without basis, unnecessary and an
abuse of process. I also find it tends to prejudice, embarrass
or delay the
fair trial of this action. That in my respectful view is sufficient to order
the said Summons to be dismissed
with costs. On the issue of costs ordered
by this Court on 30th April 1999, I have had opportunity to read the
affidavit
evidence of Loa Damena-Tepai filed on 12th May 1999. I am
satisfied that order for costs should be set aside and replaced with
an
order for costs in the cause.
ORDERS OF THE COURT:
cl
1. &nbbsp; ORDER THAT THE
SUMMOSUMMONS OF THE SECOND RESPONDENT BE STRUCK OUT AS UNNECESSARY, AN ABUSE OF
THE PROCESS
OF THE COURT AND THAT IT TENDSREJUDEMBAROR DE AIR TRIAL OF THE ACHE ACTION.TION.
>
pan lang="EN-GB" style="font-size: 12.0pt">2. p; &nSsp; SEp; SET ASIDE THE
THE
ORDER FOR COSTS MADE AGAINST
THE APPLICANTS ON 30TH APRIL 1999 AND REPLACE
WITH AN ORDER FOR COSTS IN THE CAUSE.
<
3. &nbbsp;& &nsp; Csp; COSTS OF THIS
ICPPLICATION TO BE BORNE BY THE SECOND RESPONDENT.
THE COURTn>
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