IN THE HIGH COURT OF SOLOMON
ISLANDS
Civil Case No: 259 of 2001 &
257 of 2001
p class="MsoNoMsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1">
SOLOMON MUTUAL INSURANCE
LIMITEDn>
lass="Mss="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1">
v
THE MAGISTRATE (HONIARA)
AGAINST THE APPLICANT
ass="Mss="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1">
SOLOMON ISLANDS NATIONAL
PROVIDENT FUND BOARD
v
class="Mss="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1">
THE MAGISTRATE (HONIARA)
ISSUING A SEARCH WARRANT AGAINST THE THE APPLICANT
ass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
High Court of So Islands
Before: Frank O. Kabui, J.
Hearing: 25th September 2001
Ruling: 28th September 2001
C. Hapa for the Applicapan>
RULING
(Kabui, J):
This is an ex parte application
filed on 25th September 2001 by the Applicant by Summons seeking the
following orders
-
class="MsoNoMsoNormal" style="text-indent: .45pt; margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
1. Upon the Applicant by its
nsel undertaking to file wile within seven (7) days and application for leave
to bring proceedings
for certiorari to have a search warrant issued by the
Magistrate, Honiara against the Applicant and its premises at Anthony
Saru
Building, Honiara and dated 21st September 2001 quashed, execution of the
said search warrant be stayed until further
order.
2. The Applicant'ts of
and incidental ntal to this application be in the certiorari proceedings.
3. Such further or other
order as to this Honourable Court may seem meet.
This application was not
supported by any affidavit evidence. No affidavits wered in support of
it. it. I took this point
up with Counsel, Mr Hapa, in terms of Order 40, rule 1
of the High Court (Civil Procedure) Rules 1964 (the High Court Rules).
Rule
1 states��Upon any motion, petition, or summons evidence may be given by
affidavit; but the Court may, on the application of either party,
order the
attendance for cross - examination of the person making any such
affidavit�... This rule however does not exclude giving sworn evidence
on oath from the witness - box.
p class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
Mr Hapa's response was that Mr
Sullivan had just done a similar applic before Palmer, J. in the
the
morning in Civil
Case No. 257. I had with me in Court File No. 257 and so I
was able to confirm that no affidavit evidence nor oral evidence
had been
produced to support Mr Sullivan's application before Palmer, J. that
morning. I rejected Civil Case No. 257
as the authority for Mr Hapa's
position. I told Mr Hapa that the fact Mr Sullivan had pulled the wool over
the eyes of
Palmer, J. on the issue was no excuse for him to follow suit. I
now recall that this point might have escaped my attention
also in
Solomon Islands National
Provident Fund - v - Attorney - General
(Civil Case No. 42 of 1999) when I made a staying order of a similar nature.
I said that in my view, Mr Sullivan was
wrong in not providing evidence to
support his application. Mr Hapa then sought a brief adjournment in order to
call
oral evidence and produce documents. Having rectified his position, Mr
Hapa proceeded with his application.
Jurisdn of the Court to
make staying orders under the High Court Rules.
class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
There are instances under the
High Coures where the Court does have jurisdiction to make staying
ing
orders. The first
is under Order 7, rule 2 where the Court may stay
proceedings on the basis that the advocate denies having issued a writ or
such writ was issued without the authority of that advocate. The second is
under Order 24, rule 2 (2) where the Court
will stay proceedings upon
payment being made to the Plaintiff or to the plaintiff�s advocate by the
written authority
of the Plaintiff. The third is under Order 27, rule 4
where the Court may stay proceedings where pleadings are found to be
frivolous or vexatious. The fourth is under Order 28, rule 4 where the Court
may stay a subsequent action until costs
have been paid. The fifth is under
Order 37, rule 2 where the Court may stay unnecessary proceedings. The sixth
is under
Order 45, rule 19 where the Court may stay the execution of a
judgment or order by writ of fieri facias. The seventh is under
Order 59,
rule 6 where the Court may stay further proceedings in an action. The eighth
is under Order 61, rule 2(4) where
the granting of leave to apply for an
order for certiorari will, if directed by the Court, operate as a stay of
the proceedings
in question until the determination of the application or
until further order of the Court. There may be other instances that
may have
escaped my attention.
Inherent Jurisdiction of the
Court
<
Jurisdiction under the High
Courts and the inherent jurisdiction can be said to co - exist. ist. This
does not however
mean that relief under the High Court Rules or under the
inherent jurisdiction needs to be optional in terms of electing to
proceed
on one basis or the other. The most effective way to proceed is to base
one's case on both (see Day v William Hill (Park Lane) Ltd. [1949] 1
K.B. 632).
<
In an article titled �The
Inherent Jurisdiction of the Court� by Keith Mason Q.C. B.A.
LLB (Syd) LLM (Lond.) published at page 449 of The Australian Law
Journal, Volume 57, No. 8, August 1983, the author discussed the
existence of the inherent jurisdiction of the Court and the scope
of its
application by the Courts over the years. I repeat and adopt the essential
features of that article in this part
of this ruling. I do so with the view
of treating them as a guide to those of us whose business is the application
of
the law in this area of the law. In so doing, I have in places
paraphrased the subheadings in the above article. This article
recognizes
that the functions of the inherent jurisdiction fall into four broad
categories. The first category concerns
the enhancement of convenience and
fairness in legal proceedings. Example are as follows-
1. Formulation of rules of
Court and practice directions.
The Court has got the power to ensure that the Court process is used fairly
and conveniently by the parties. This means
that the Court may, if
necessary, formulate its own machinery as best as it can to obtain justice
(see Connelly v Director of Public Prosecutions [1964] 2 A.E.R. 40,
Humphry's v Director of Public Prosecutions [1977] A.C. 1 and R v
Telford
Justices, Ex. P. Badham
[1991] 2.A.E.R. 854).
The issue of practice directions is also done by the Court to regulate its
own business.
class="Mss="MsoNormal" style="text-indent: .45pt; margin-left: 1.0cm; margin-top: 1; margin-bottom: 1">
2. ding remedies for
breaches of natural justice and setd setting aside default orders (see Craig v
Kanssen [1943] 1.K.B. 256).
3. Correctio Orders
affected by mistake or fraud. (see Pearlmaarlman (veneers) S.A. Pty Ltd v
Berhard Bartels [1954] 1 W.L.R. 1487).
4. Control and conduct o proceedings.< This is
a wide jurisdiction to ensure that proceedings are to be conducted in such a
manner so as to enhance the convenience,
expedition and efficiency in the
administration of justice. See O'Toole v Scot [1965] A.C. 939 and
Myers v Elma [1904] A.C. 282).
5. Ordering submissions to
medical examination (see Edmeads mes Boards Mills Ltd [1/i>[1969] 2
Q.B. 67, Starr v National Coal Board [1977] 1 W.L.R. 63 and S v S
[1972] AC 24).
6. Powers of the Court in
inal proceedings such as to see that a fair trial is conduconducted between
prosecutors and the
accused (see Connelly v Director of Public
Prosecutions cited above and Barton v The Queen [1980] HCA 48; (1981) 55 A.L.J.R.
31).
7. Hearings in Camera. (See
Attorney-General v Levelleazine Ltd [1979] A.C. 4.C. 440, Scott v
Scott [1913] A.C. 417).
/p>
8. Penalty ontempt.
The second category concerns
the prevention of steps if taken would make judicialeedings
inefficaciouscious. Examples
are the law of contempt, staying the execution of
judgment pending appeal, staying the execution of a murderer, Mareva
injunctions and Anton Piller Orders. The third category concerns preventing
the abuse of process. Examples are as follows
-
class="MsoNoMsoNormal" style="text-indent: -36.0pt; margin-left: 64.8pt; margin-top: 1; margin-bottom: 1">
1. Striking out or staying
ceedings which are fruitlesitless or vexatious
2. Res judicata, autrefois
and multiplceedings.
p>
3. Forum non convenience and
lis alili pendens (see Rockware Glass Ltd v MacShannon [1978] A - C.
795).
4. Dismissal of proceedings
for non-compliance with directions and want want of prosecution (see Allen v
Sir Alfred McAlphine & Sons Ltd [1968] 2 Q.B. 229 and Birkett v James
A.CF. 1254).
5. Staying of proceedings
where a criminal charge is pending (see Smith v Selwyn [1914] UKLawRpKQB 94; [1914] 3 K.B.
98 and Jefferson Ltd v Bhetcha [1979] 1W.L.R. 898).
6. Securir costs (see
J.H. Billington Ltd v Billington [/i> [1907] UKLawRpKQB 66; [1907] 2 K.B. 106).
It is however said under
this category, there is no limit to the Court's inherent jurisdiction to
stay proceedings
or to take other steps to prevent abuse of process.
The fourth category concerns
the Courts acting in aid of Superior Courts and in aicontrol of
inferior Cior Courts or tribunals.
Where then does this case fall
within the above categories of cirances calling for the exercexercise of the
inherent jurisdiction?
In this case, the Court is
eing asked to make an order to stay the execution of the Search Warrant
issued by they the Honiara
Magistrate Court on 21st September 2001. This request
is, in my view, akin to a request for an injunction restraining the
execution of the Search Warrant. In this regard, I would like to think such
a request could be granted under proviso (b)
to section 41 of the Supreme
Court of Jurisdiction (Consolidation) Act 1925. That is to say
class="MsoNoMsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
Any person, whether a
or not to any such cause or matter, who would formerormerly have been entitled to
apply to any
court to restrain the prosecution thereof, or who may be
entitled to enforce, by attachment or otherwise, any judgment, decree,
rule
or order, in contravention of which all or any part of the proceedings in
the cause or matter have been taken, may
apply to the High Court or the
Court of Appeal, as the case may be, by motion in a summary way, for a stay
of proceedings
in the cause or matter, either generally, or so far as may be
necessary for the purposes of justice, and the court shall thereupon
make
such orders as shall be just"...
Furthermore, the Court can
intervene if there is an abuse of ps in a criminal case. The CThe Court's
power in this regard
was discussed at great length in Barton v The Queen
[1980] HCA 48; (1981) 55 A.L.J.R. 31. Gibbs and Mason J.J. confirmed that the Court did
have the power to prevent an abuse of process to ensure a fair trial of the
accused. Their Honours agreed that the exercise of that power could extend
in appropriate cases to the grant of stay
of proceedings so as to permit
preliminary proceeding to take place. Their Honours pointed out that the
English position
was reflected in R v Director of Prosecutions DPP
and Humphrys v Director of Public Prosecutions (already cited) above.
Their Honours further stated that the position in the Australian States of
Victoria and New South
Wales was the same as in England accepting the fact
that the High Court of Australia had not yet had the opportunity to state
its position in this regard. Stephen and Aickin J.J. also agreed to the
conclusion reached by Gibbs and Mason J.J. In
Fait v The Queen (1962
- 63) [1962] HCA 57; 108 CLR 620, the High Court of Australia ordered the stay of the
execution of a convicted murderer pending an application for special leave
to appeal.
class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
The Applicanthis case is
clearly concerned about the effect of the Search Warrant and wishes to quto quash
it by an order
for certiorari.
The offence alleged in the
information under section 101 of Criminal Procedure Code Act (Cap. 7) is
conspiracy to defraud. The same offence is also recited in the Search
Warrant. Counsel for the Applicant,
Mr Hapa, did argue that section 101 of
the Criminal Procedure Code Act must not be used to fish for evidence to
sustain an offence that no person had yet committed. I think this case can
be likened to an application for stay of proceedings pending an appeal. The
Applicant is asking for a stay pending taking
steps to challenge the
correctness in law of the Search Warrant. It can also be likened to a
request for stay of criminal
proceedings so that steps can be taken in the
meantime to ensure that the trial of the accused is fair and attains the
hallmarks of justice. The inherent jurisdiction of the Court can therefore
be invoked to meet the justice of this case. It
was done and accepted by the
Court in this case.
F.O. Kabui
Judge
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/sb/cases/SBHC/2001/70.html
