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Avaiki Shipping Company Ltd v Attorney-General [2000] SBHC 43; HC-CC 248 of 2000 (2 November 2000)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 248 of 2000

AVAIKI SHIPPING COMPANY LIMITED

V

ATTORNEY GENERAL, CENTRAL BANK OF SOLOMON ISLANDS
AND MAGGAVA MUGGIKI INVESTMENT COMPANY LIMITED

High Court of Solomon Islands
(F.O. KABUI), J)

Hearing: 1st November 2000
Ruling: 2nd November 2000

Mrs N. Tongarutu for Plaintiff
Defendants not present

RULING

(Kabui, J): The Applicant is the Avaiki Shipping Company Limited incorporated on 20^th December 1999 under the Companies Act (Cap. 175). It is owned by the people of Renbel Province through their Provincial Government and its commercial arm called the Rennell and Bellona Development Authority. Its shares are held by Mr. Tuhanuku as Chairman of its Board of Directors and Mr. Tepai, the Renbel Provincial Secretary. By an ex parte summons filed on 31^st October 2000, it applies for the following orders -

1. That the First Respondent, its officers, agents and servants be restrained from raising payment in the sum of not less than SI $1.5 million to the Third Respondent and any of the Third Respondents directors and shareholders.
   
2. That the Second Respondent, its agents and servants be restrained from raising payment in the sum of not less than SI $1.5 million to the First and Third Respondents or any of the Third Respondents directors or shareholders.
   
3. That the Third Respondent either by its directors or shareholders, officers and agents are restrained from dispensing with the sum of not less than SI $1.5 million.
   
4. Any further orders that this Court deems fit to make.
   
5. Costs reserved to trial Judge.
   

The First Respondent in this Application is the Attorney-General representing the Permanent Secretary, Ministry of Transport, Works and Utilities and the Accountant-General of the Ministry of Finance. The Second Respondent is the Central Bank of Solomon Islands (the CBSI). The Third Respondent is Muggava Muggiki Investment Company Limited. All the Respondents were not served with the ex parte Summons filed on 31^st October 2000, that is only 2 days ago. The usual reason of course is that the matter was urgent. In this case, the Respondents are all in Honiara and could have been easily served with copies of the ex parte Summons. However, in my view this Application is reasonably an urgent one because of the fear that the sum of $1.5 million of Government funds could well be transferred to the Third Respondent at any time as from 31^st October 2000. In fact, the payment process has commenced in favour of the Third Respondent and only the Government’s cash-flow problem may slow the process down.

The Background

The Applicant is a Shipping Company formed with the view of providing shipping service to the people of Renbel Province in line Government policy on rural shipping service. The Applicant therefore has the support of the Prime Minister meaning that the Government is funding the capital outlay for the Applicant. Other Provinces have already benefited from this Government Project and the Renbel Province is simply following suit. The Third Respondent Muggava Muggiki Investment Company Limited is also incorporated under the Companies Act like the Applicant but earlier on 1^st March 2000. One of its Directors is Sauhea J. Tahua who is the current Minister for Transport, Works and Utilities, being responsible for amongst other things, shipping in Solomon Islands. By letter dated 23^rd October 2000, the Prime Minister told Sauha J. Tahua as Minister responsible for shipping to pay $1.5 million to the Applicant. This letter was copied to the Minister of Finance, the Premier of the Renbel Province, the Chairman of the Applicant, Mr. Tuhanuku and the Renbel Provincial Secretary, Mr. Tepai. By memorandum dated 27^th October 2000, the Permanent Secretary, Ministry of Finance, Mr. Kiriau wrote to his counter-part in the Ministry of Transport, Works and Utilities instructing him to raise the relevant requisition and payment voucher for the payment of $1.5 million as Government assistance for shipping service in the Renbel Province. The fact however is that the relevant requisition and payment voucher for $1.5 million for provincial shipping had been prepared in favour of Muggava Muggiki Investment Company Limited and dated 30^th October 2000 in contravention of the instruction given by the Permanent Secretary, Ministry of Finance above. Such instruction has its basis in the provisions of Financial Instructions and the Public Finance and Audit Act (Cap. 120).

The Relief Sought

The interim orders requested by the Applicant are as set out above in the ex parte Summons. The issues to be tried in the main case are as set out in the Applicant’s Originating Summons filed on 31^st October 2000. They are the triable issues but must be serious issues. This means that such issues must be beyond being vexatious or frivolous. (See Nelson Meke v Solmac Construction Company Limited (Civil Case No. 44/45/82). At page 175 in Australian Civil Procedure by Bernard C. Cairns, 1981, the author remarks thus

“... For the present purposes the ordinary meaning of frivolous may be adopted, that is, something that is not worth serious attention, while vexatious means that the action or defence is for the purpose of harassment. On this basis it may be said that a pleading is vexatious if it is one that cannot succeed, or is put forward simply for the purpose of wasting time or for causing delay. A pleading that is not intended to be taken seriously is struck out as frivolous in the same way as a claim which has no foundation. ...”

The triable issues set out in the Applicant’s Originating Summons are framed in the form of declarations under Order 58 rule 1 of the High Court (Civil Procedure) Rules 1964 (the High Court Rules) to be made by the Court if it so thinks fit to do so. They are not based upon a cause of action in tort or contract etc. calling for damages and other relief. The basis upon which any person may apply by Originating Summons for declaration is the interest of that person under a deed, will or other written instrument. Any questions posed for determination by the Court under Order 58, rule 1 of the High Court Rules are in broad terms triable issues beyond being vexatious or frivolous. If they are not, what else can they be? I find therefore that there are triable issues to be determined as set out in the Applicant’s Originating Summons.

The next point is to determine where the balance of convenience lies in this matter. It is rather difficult to deal with this point where damages are not claimed against the other side. The balancing exercise in determining where the balance of convenience lies does not seem to lend itself conveniently in this matter. However, the relative strength of each of the parties’ case may be the guiding principle upon which I must decide this Application. As far the affidavit evidence can show, both the Applicant and the Third Respondent are claiming $1.5 million. As to which of them the Government holds in favour to receive that sum of $1.5 million, the Applicant is obviously the Government’s choice. The requisition and payment voucher prepared in the Ministry of Transport, Works and Utilities dated 30^th October 2000 are in violation of the instructions contained in the memorandum dated 27^th October 2000 above. On this basis, I would grant the orders asked for in the Applicant’s ex parte Summons. I order accordingly.

I am however, mindful of the application of section 18 of the Crown Proceedings Act (Cap. 8) which does not allow injunctive relief against the Crown. (See Patrick Murphy and Another v Attorney General & Others) (Civil Case No. 323/93). In this Application however the Accountant General is specifically cited being represented by the Attorney General. In practical terms, the Accountant General is the person to be served with the above Orders. In the case of the CBSI, the person to be served with the Orders is the Governor or in his absence the Deputy Governor.

Cost to be in the cause.

F.O. Kabui
Judge