HIGH
COURT OF SOLOMON ISLANDS
Civil
Case No. 248 of 2000
AVAIKI
SHIPPING COMPANY LIMITED
v
ATTORNEY GENERAL,
CENTRAL BANK OF SOLOMON ISLANDS
AND MUGGAVA MUGGIKI INVESTMENT
COMPANY LIMITED
High
Court of Solomon Islands
Before:
F.O. Kabui, J
Civil
Case No. 248 of 2000
Hearing:
23th Januar1
Judgment:
24th January 2001
Mrs J.
Gordon for the First Respondent
2nd
Respondent not present
3rd
Respondent not present
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JUDGEMENTn>
(Kabui,
J):
This is an application by Notice of Motion filed on 6th December
2000 by the 1st Respondent against Avaiki Shipping Company Limited. This was
done in response to Avaiki Shipping
Company Limited�s Originating Summons
filed on 31st October 2000 in which Avaiki Shipping Company
Limited asked for a number of declarations. These two applications came
before me on 12th November 2000 when Counsel for Avaiki Shipping
Company Limited, Mrs. Tongarutu, applied for adjournment because she had
tooth ache. She also claimed that she had not been served with the Notice of
hearing for this date. There being no objection
from Mrs. Gordon, I
adjourned the hearing for a date to be fixed by the Registrar of the High
Court. In. the meantime,
the 1st Respondent filed another Notice
of Motion on 15th December 2000 in the same terms as the one
filed on 6th December 2000 and had it served upon Avaiki Shipping Company
Limited's Solicitor, Mrs. Tongarutu, on 9th January 2001. There
is a Certificate of Service to that effect filed on 16th January 2001. When
the case came before
me on 23rd January 2001 for hearing, Avaiki
Shipping Company Limited nor its Solicitor, Mrs. Tongarutu was in Court. I
proceeded
to hear the 1st Respondent�s Notice of Motion in the
absence of Avaiki Shipping Company Limited and its Solicitor, Mrs. Tongarutu,
under
Order 38, rule 6 of the High Court (Civil Procedure) Rules 1964 (the
High Court Rules).
The 1st
Respondent�s Notice of Motion
The 1st
Respondent�s Notice of Motion simply asks for an order that Avaiki Shipping
Company Limited�s Originating Summons be struck out for non-compliance with
Order 58
of the High Court Rules. Rules 1 and 2 of Order 58 of the High
Court Rules are in these terms-
ass="Mso="MsoNormal" style="text-indent: -36.0pt; margin-left: 72.0pt; margin-top: 1; margin-bottom: 1">
1.
&nbs; &nbbsp;&&nbp; Any person claiming to
be interested under a deed, will, or other written ument appl
inating summons for the deterdeterminatmination
of any question of construction
ion
arising under the instrument, and for a
declaration of the rights of the persons interested.
2.
p; &nsp; Any person claiming agal or equitable right in a case where the
determination of the question whether he i he is entitled to
the right depends
upon a question of construction of any provision of a written law, may apply
by originating summons
for the determination of such question of
construction, and for a declaration as to the right claimed.
3.
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4.
�����������.
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5.
�����������.
Mrs.
Gordon�s argument was that the Originating Summons did not disclose a cause
of action under Order 58 of the High
Court Rules. She said the Originating
Summons was misconceived in that there was no evidence to show that there
was a
deed or a will giving rights to Avaiki Shipping Company Limited and
thus the need to declare such rights by construing a deed
or a will. She
said there was also no evidence of equitable rights to be considered. Apart
from the words �a
deed,
will�
in rule 1 of Order 58 of the High Court Rules, the words �or
other written instrument�
also follow immediately after the words �a
deed,
will�
so
that �a
deed or
will�
are not the only instruments envisaged in Order 58 above. The words
�or
other written instrument�
are in
my view very general in scope but that such
�other
written instrument�
must
necessarily be capable of conferring rights of some sort to some persons
having an interest in that written instrument
for it to be of any legal
value. This is the limitation. Attached to Mr. Tuhanuku�s affidavit filed on
31st October 2000 in support of the Originating Summons were
Exhibit �DT4� (A) and (B). DT4 (A) was a letter dated 23rd
October 2000 written by the Prime Minister, Mr. Sogavare to his Minister
Joses Tahua, Minister responsible for Works,
Transport and Communication
which includes shipping policy etc. In this letter, the Prime Minister
accepted that Avaiki
Shipping Company Limited belonged to the people of
Rennell and Bellona and being accountable to Rennell and Bellona Provincial
Government was good reason enough for $1.5 million to be released to it. DT4
(B) was Permanent Secretary, Ministry of
Finance's letter to his
counter-part in the Ministry of Works, Transport and Communication advising
his counter-part
to raise the necessary payment voucher for $1.5 million for
shipping purposes to the Rennell and Bellona Province. Both DT4
(A) and (B)
are both written documents. The question is how do they connect with Avaiki
Shipping Company Limited so as
to create a legal interest that generates the
right to seek declarations under Order 58 of the High Court Rules? I think
the correct answer would largely depend upon the facts of each case. In this
case, Avaiki Shipping Company Limited was
no party to the discussion process
that was going on between the Prime Minister and his Permanent Secretary and
the Minister
of Works, Transport and Communication and his Permanent
Secretary. Avaiki Shipping Company Limited was to be the beneficiary
in
terms of receiving the $1.5 million. Things however could go wrong
politically and it could miss out on the $1.5 million
payment. It had no
legal right to that money at that point in time. It could not sue for breach
of contract. It could
not sue for specific performance. It could not sue as
a beneficiary because there was no trust in place in its favour. It was
not
a party to DT4 (A) and (B) and so it had no legal right to be recognised by
way of declarations. Although DT4 (A)
and (B) are indeed written documents,
they are not documents
creating any rights which can be claimed by Avaiki Shipping Company Limited
under Order 58, rules 1 and
2 of the High Court Rules. They are political
documents reflecting Government policy in shipping service to Provinces.
This being the case, the Originating Summons filed by Avaiki Shipping
Company Limited cannot be sustained under Order 58
of the High Court Rules
and thus must be struck out with costs. The Application by the 1st
Respondent is therefore granted. This being the result, I would also
discharge the interim order I made in favour of
Avaiki Shipping Company
Limited on
2nd
November 2000. In fact,
it should automatically fall away. Nevertheless, I order accordingly as
requested by Counsel for
the 1st Respondent, Mrs. Gordon.
F.O. Kabui
Judge
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