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Sogati v Bukese Development [2008] SBHC 65; HCSI-CC 65 of 2007 (1 October 2008)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 65 of 2007

ALICK SOGATI (REPRESENTING SUKUVAI TRIBE)

V

BUKESE DEVELOPMENT

EAGON RESOURCES DEVELOPMENT COMPANY LTD

ATTORNEY-GENERAL
(REPRESENTING THE COMMISSIONER OF FORESTS)

THE PREMIER (FOR AND ON BEHALF OF THE CHOISEUL PROVINCE ASSEMBLY AND EXECUTIVE)

Date of Hearing: 26 September 2008
Date of Ruling: 1 October 2008

Philip Tegavota for the Claimant/Applicant
Chris Hapa for the 2nd Defendant/Respondent
John Muria Junior for the 3rd Defendant/Respondent
No one for the 1st and 4th Defendants/Respondents

RULING

Faukona, J.

This is an application pursuant to Rules 2.9 and 7.5 of Solomon Islands Courts (Civil Procedure) Rules 2007. The application is basically to discharge the order of this court dated 13th December 2007, which was signed, sealed and perfected on 17th December 2007. The order read as follows:

"That the court proceedings in this matter be stayed under the tort felony rule until the criminal investigations into the plaintiff’s activities are completed and until further order of the court".

According to Mr. Hapa the Order of stay of proceeding was granted based on non payment of cost of previous proceedings in 2006, by the Claimant/Applicant, and secondly on tort/felony rule. However the cost had been paid at the end of December 2007.

In this case Mr. Tegatova advances two grounds in support of the application to discharge the order staying of proceedings. Firstly he submits that the criminal investigation into the alleged act of perjury and forgery by the Claimant/Applicant, was first reported to Police by Mr. Tagini of Crystal Lawyers per his letter dated 22nd May 2006 Exhibit WP1. Until today no criminal charges are laid or prosecution commence. It was more than two years since the matter was in the hands of the Police. Mr. Tegavota also submit that four letters written by an officer from the Fraud Squad Unit, Rove, Police Headquarters directing the High Court to delay hearing of the Claimant’s/Applicant’s original application is a contributing factor to the delay. Secondly the second Defendant/Respondent is capitalising on the delay and staying of proceeding order to carry on logging on the subject land. Mr. Tegavota rely on the sworn statement of the Claimant/Applicant.

Counsel Hapa for Second Defendant/Respondent submits by relying on the tort felony rule. He refers to the case of Brownless Zaku and Others v Public Service Commission[1] that the investigation which had already been started has an import bearing in this proceeding. Paragraph 33 and 34 of the Statement of Claim which the Claimant/Applicant derives his standing from the decision of the Ririo House of Chiefs. The question whether the Claimant/Applicant can rely on that decision for standing depend on the outcome of the investigations. Secondly should the Claimant/Applicant has got grievances because of slow progress of investigations, the Police Act provides for complainants be lodged with the Commissioner of Police. The Claimant/Applicant has never done so.

Zaku and Others v. Public Service Commission

The fact of Zaku’s case is quite different from this case. However the rule of felony tort has quoted by Brown J on page 8 paragraph 2.

"The felony tort rule was expressed in Smith v. Selwyn[2]where Philemon LJ said:

"It is well a felony has been alleged by the defendant cannot make that felony the basis of an action unless the defendant has been prosecuted or some good reason has been given why a prosecution has not taken place"

His Lordship then continues in paragraph 2;

"Of course, the failure to prosecute does not give the alleged miscreant a cause of action for that would be contrary to public policy."

What Brown J was saying is that because the investigations were unsatisfactory and no one was charged for a criminal offence, you cannot use that to come to court and seek declaration for unlawful termination and consequential orders for reinstatement or damages for breach, for that would be contrary to public policy.

In this case investigations into alleged allegations of criminal activity by Claimant/Applicant is yet to be completed; no charges are yet to be laid. And it clearly shows that the Claimant/Applicant does not use the fact that no charge has yet been laid, and come to Court seeking orders for his own personal benefit. What he actually seeks is for justice to prevail. A continuous staying of proceeding will delay his original application filed on 26th February 2007, from being heard by this Court.

I noted from Mr Hapa’s submission that Claimant/Applicant’s standing in his original application depend very much on the outcome of Police investigations. What about if the investigation fail, and then what about if the prosecution fail in the latter course of the process, should the case continue to be pending until then. I guess that would take perhaps weeks or a year the least before completion.

Letters from Fraud Squad Office, Rove Police Headquarters

There were four letters written by Joseph Roscal, OIC/Fraud (Ag) from the Office of the Fraud Squad, National Investigation Department. Those letters were addressed to the High Court and Court of Appeal. The first letter was written on 18th May 2007. The second one was written on 10th July 2007. The third and fourth letters were a reproduction of the second letter with different dates of issuant. The first reproduction was dated 30th July 2007and the second reproduction was dated 10th December 2007. Those letters can be located as attachments to Claimant’’/Applicant’s sworn statement filed on 29th July 2008. The letters dated 18th May 2007 and 30th July 2007, were Exh. WP3 attached to William Pita’s affidavit filed on 2nd August 2007.

The letter dated 10th December 2007 was attached to the application for staying of proceeding on 17th December 2007. Amazingly, three previous ones were not disclosed.

The tone of those letters were the same. They appear to direct the High Court not to proceed with the hearing of the Claimant/Applicant’s original application, but must be halted as investigations into the allegations were still continuing.

Indeed those letters raise some eye brows and pose a lot of questions than answers. Why a Police Officer would directed the High Court as to the functions of the Court. Why should he repeatedly done so on four separate occasions. I deplore such an act, would have been the right course to write to Counsels and inform them of the progress of the investigations. And the Counsels will come to court under the guidance of the rules. What have the Police done from May to December 17th 2007, what have they done after the staying of the proceeding order was made. I noted from the sworn statement of William Pita Exh. WP3 and WP5 that the file was moving from Fraud Squad Office to DPP then to Fraud Squad Office, and eventually someone decided to go to Choiseul on 9th October 2008 to gather further evidence. This is not good enough. The Police had been sitting on the file for two years and four months, and that was more than sufficient time to complete investigations. The letters by the Police Officer has reflected that there may be some fishy things going on. They in fact, in my view, assist in the delay. There is no evidence that the Court had requested the office of the Fraud Squad to write to it. And those letters appeared not to be a report at all, in fact were directions.

Having said that, I have not see any reason why hearing of the original application should interfere with the investigations; it would still be carried out. Should there be evidence, that can be brought to the attention of the Court during hearing.

From May 2006 to December 2007 is sufficient period to conduct investigations. To uphold the staying of proceeding order on 17th December 2007, will assist further delay, and of course will hinder the course of justice, as it were until now. Having considered the submissions I therefore, grant the application and make the following orders:

1. That the order staying of proceeding by the High Court signed, sealed and perfected on the 17th December 2006 be lifted.
   
2. Directed the Registrar of the High Court to list the proceeding for hearing.
   
3. Costs in the cause.
   

THE COURT

^[1] [2000] Civil Case No. 95 of 2000.
^[2] Ibid