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DJ Graphics Ltd v Attorney General [1995] SBHC 99; HC-CC 040 of 1995 (12 April 1995)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No: 40 of 1995

D.J. GRAPHICS LIMITED

v.

THE ATTORNEY GENERAL
SOLOMON ISLANDS PORTS AUTHORITY

(Palmer J.)

Hearing: 6 April 1995
Judgment: 12 April 1995

G.J. Traczyk & F. Waleilia for the Plaintiff
P. Afeau for the First Defendant
A. Radclyffe for the Second defendant

PALMER J: D.J. Graphics Limited, is a local company incorporated under the Companies Act [Cap.66]. In a letter dated the 29th of August, 1994, the Managing Director of the said Company, David Chow, wrote to the Minister of Lands and Housing seeking his assistance to acquire land within the Honiara Town boundary, which he could use to develop his business.

In that letter Mr. Chow identified the areas of land which his Company was interested in as, Lots 147 and 128 in Point Cruz, more commonly identified as the site where the offices of the Ministry of Education and Training were formerly located, until it was vacated and then destroyed by fire, (a copy of that letter is annexed to the affidavit of David Chow filed on the 3rd of April, 1995 and marked ‘A’).

In a letter dated the 6th of September, 1995 (exhibit "B" to the said affidavit of David Chow), the Minister expressed his support for Mr. Chow’s plans to expand and develop his business interests in that area. The Minister went on to say:

"Following this assurance, I now wish to inform you that I accept your application in principle awaiting certain necessary formalities which have to be processed before the final approval can be endorsed".

In a further letter dated the 9th of September, 1994 (exhibit "C’ in the same affidavit of David Chow) at paragraph 2, the Minister stated:

"I am pleased to inform you that your application for Lots 147 & 128/I/H which occupies the old Government Ministry of Education building is hereby accepted".

At paragraph 4, he continued:

The Commissioner of Lands is also informed of the same and is further asked to proceed with the necessary formalities to effect registration".

One of the issues which may or may not be raised later in trial is whether or not the procedure adopted by the Plaintiff is the correct procedure for all intending applicants who may wish to acquire land for business development within the town boundary.

By letter dated the 14th of September, 1994, (exhibit "D" in the same affidavit of David Chow), the Commissioner of Lands wrote to Mr. Chow advising him that the areas of land which he was interested in had been allocated to Solomon Islands Ports Authority for its "expansion of facilities".

On the very next day, 15th September, 1994, the Minister wrote to the Managing Director of the Plaintiff Company, with copies of his letter sent to the Manager of Ports Authority, the Registrar of Titles and the Commissioner of Lands, revoking or purporting to revoke in paragraph 3 of the letter "any allocation of the ... land to Ports Authority" (exhibit "E" in the same affidavit of David Chow.)

At page 2 of that letter, last paragraph, the Minister issued a directive to the Commissioner of Lands inter alia, to revoke any offers made to Ports authority and to prepare a grant instrument in favour of the Plaintiff for execution with immediate effect.

In a further letter to Mr Chow dated the 4th of October, 1994 (exhibit "F" in the affidavit of David Chow), the Minister reiterated his assurances of the allocation of the land to the Plaintiff and advised that his direction was final.

Meanwhile, Mr Chow had imposed a caveat on the property on or about the 26th of September, 1994.

In or about the 19th of December, 1994, the Commissioner of Lands lodged an application in the Office of the Registrar of Titles, for the registration of a subdivision of the Perpetual Estates in Parcel 191-022-83 and 191-022-87 (these parcel numbers appear to relate to exactly the same area of land which the Plaintiff is interested in).

At paragraph 10 of the said affidavit of David Chow, he expressed his honest belief that the application by the Commissioner of Lands to register the subdivision of those two parcels of land was "in order to complete his stated intention to transfer the land to Solomon Islands Ports Authority in direct contravention of the lawful directions of the Minister".

Such was the state of affairs which gave rise to this action filed on the 17th of February, 1995, seeking inter alia, at paragraph (e), "a declaration that the Second Defendant is not empowered to engage in any commercial activity other than those activities authorised by its enabling statute".

Mr Radclyffe, of Counsel for the Second Defendant (Solomon Islands Ports Authority), now seeks by Summons filed on the 21st of February, 1995, an Order that the Writ of Summons filed on the 17th of February, 1995 be struck out on the grounds that it discloses no cause of action in that the Plaintiff had no locus standi to ask for the declaration sought in paragraph (e) of the endorsement on the Writ.

In the hearing before this Court, a detailed Statement of Claim was filed which sought to set out in clearer terms, the claim of the Plaintiff as against the Second Defendant.

But before the issue raised in the summons can be considered in detail, a preliminary matter has been raised by Mr. Traczyk, in which he seeks a ruling on the question whether Order 27 Rule 4 gives power to the Court to be able to strike out a Writ of Summons.

Mr Traczyk argues that Rule 4 in Order 27 refers only to "pleadings" which may be struck out. It therefore could not include "Writs of Summons", and accordingly, the summons filed by the second Defendant is defective and should be dismissed.

Order 27 Rule 4 provides:

"The Court may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer, and in any such case or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the Court may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just"

The effect of Order 27 Rule 4 has already been dealt with by this Court in two earlier cases. In the case of Judah Kulabule -v- Eagon Resources Development Co. (SI) Ltd, CC 285 of 1993, the learned Chief Justice Muria, said at page 6, paragraph 5 of his judgment:

"There is power to strike out any pleading and to dismiss an action under Order 27 r 4 of the High Court (Civil Procedure) Rules 1964 where it is shown that there is no reasonable cause of action.

The power of the Court in this regard is discretionary and must be exercised only where the Court is satisfied that there is no reasonable cause of action or that the proceedings are frivolous and vexatious. However if the pleading is defective and the case can be improved by amendment so as to disclose a cause of action, then although the Court may strike out the pleadings, leave may be granted to amend the pleadings. If the Court is satisfied that no amendment will cure the defect, leave should not be granted (see Hubbuck v. Wilkinson [1899] 1 QB 94)." (emphasis added).

In the second case, Christopher Columbus Abe v. Minister of Finance and Attorney General, cc197 of 1994, at page 4, the learned Chief Justice Muria reiterated what he had said in the earlier case of Judah Kulabule (supra). He also referred to the case of Duchy of Lancaster -v- London & North Western Railway Co. [1892] UKLawRpCh 134; [1892] 3 Ch 274 and quoted the judgment of Lindley L.J at pages 276-277:

"To what extent is the Court to go on inquiring into difficult questions of fact or law in exercise of the power under which is given under Order XXV rule 4? (our Order 27 Rule 4). It appears to me that the object of the rule is to stop cases which ought not to be launched - cases which are obviously frivolous or vexatious or obviously unsustainable" (words in brackets added).

The term ‘pleading’ clearly includes a Statement of Claim (see the definition in Order 1 Rule 1 of the High Court Civil Procedure Rules). If we assume for one moment, that the statement of claim filed discloses no reasonable cause of action, and therefore is to be struck out, where would that leave the Writ of Summons filed? The proper order in these circumstances naturally would be to have the Writ of Summons struck out.

Order 27 Rule 4 clearly had the above action in mind because not only did it state that "The Court may order any pleading to be struck out...", but it also stated that "...the Court may order the action to be stayed or dismissed..." An "action" is defined in Order 1 Rule 1 as "... a civil proceeding commenced by writ or in such other manner as may be prescribed by rules of court...."

Order 27 Rule 4 therefore clearly envisages the situation where the Court may order the Writ of Summons to be stayed or dismissed.

The issue of ‘locus standi’ raised by Mr Radclyffe is based on the submission that under section 10(1)(u) of the Ports Act, the authority may "engage in any other activity, whether similar to those heretofore specified or not, which may be sanctioned by order of the Minister". Mr Radclyffe submits that the powers conferred upon the Authority as to the types of activities it may engage in is so wide that to attempt to seek a general declaration as prayed for in the Statement of Claim, would be akin to saying that, the Minister responsible for the Ports Act had no power to sanction such activity, as the Ports Authority may wish to embark on. He argues that if the declaration sought was to be granted, then it would have the effect of saying that the Minister does not have those powers stipulated in section 10(1)(u) of the Ports Act.

Mr Traczyk on the other hand submits that the Plaintiff does have standing and referred to a number of case authorities in support of his submission.

In the well-known textbook "Administrative Law" by H.W.R. Wade, Sixth Edition, the learned author makes a clear statement as to the standing of a person seeking an order for declaration. At page 691, he stated:

"An applicant for declaration does not need to have a subsisting cause of action or a right to some other relief, but some legal right of his own must be in issue, actually or contingently. Unless this is the case, there is nothing relating to his legal position which the court can declare. As Lord Diplock has said:

‘But the jurisdiction of the court is not to declare the law generally or to give advisory opinions; it is confined to declaring contested legal rights, subsisting or future, of the parties represented in the litigation before it and not those of any one else.’ (Gouriet v. Union of Post Office Workers [1977] UKHL 5; [1978] AC 435 at 501)."

The legal rights contested in this case, is the rights to that area of land in Lots 147 and 128(148) at Point Cruz. The Plaintiff’s contention is that it is entitled to hold title to that property as opposed to the Second Defendant. And it seeks to show this inter alia, by arguing that the Authority does not have power to engage in such commercial activities as, office, retail or tourist development of the said land.

In another well-known text "Constitutional and Administrative Law" by S.A. de Smith, 3rd edition, at page 593, the learned author addresses the question of ‘locus standi’ as follows:

"The plaintiff must assert a personal right or interest of which the law takes cognisance; and there must be a genuine existing legal controversy which the courts have jurisdiction to resolve".

There are three, may be four, players involved in this legal controversy. There is the Plaintiff, the Commissioner of Lands, the Solomon Islands Ports Authority and maybe, the Minister responsible for the Ports Act.

The Plaintiff seeks to assert a personal right or interest over the property in dispute, whilst on the other hand, there is evidence to the effect that the Second Defendant also asserts a competing right or interest, over the same property. It cannot therefore be said that there is no genuine existing legal controversy between the parties.

The cases cited by Mr Traczyk in support of his submissions provide useful guidelines for consideration, as to the test to be adopted on the question of standing. In the final analysis, the tests referred to are very similar, and a common thread could be identified on closer examination.

The first case referred to is, Dyson v. Attorney General [1911] I K.B. 410, at page 423 per judgment of Farwell L.J. The relevant part quoted reads:

"But the Court is not bound to make declaratory orders and would refuse to do so unless in proper cases, and would punish with costs persons who might bring unnecessary actions: there is no substance in the apprehension, but if inconvenience is a legitimate consideration at all, the convenience in the public interest is all in favour of providing a speedy and easy access to the Courts for any of His Majesty’s subjects who have any real cause of complaint against the exercise of statutory powers by Government departments and Government officials, having regard to their growing tendency to claim the right to act without regard to legal principles and without appeal to any Court." (emphasis added).

The test applied in that case is whether there is a "real cause of complaint"?. The same question can be asked of the Plaintiff in this case.

The second case referred to was, The Australian Boot Trade Employees’ Federation and another -v- The Commonwealth of Australia and Others, [1954] HCA 9; [1953-1954] 90 C.L.R. 24 at page 52 per judgment of Taylor J.;

"It is true that there have been a number of such cases but, so far as I can see, it is equally true that declaratory decrees have been made only in suits where it was clear that there was a substantial and immediate interference with a plaintiff’s rights." (emphasis added)

If there was a ‘substantial and immediate interference with a plaintiff’s rights’, then I think that would naturally give rise to a ‘real cause of complaint’. Is the Plaintiff claiming a substantial and immediate interference with its rights in this case? The answer in my view would have to be yes.

Another case referred to was, Russian Commercial and Industrial Bank -v- British Bank for Foreign Trade Limited [1921] 2 A.C. 432 at page 448, per judgment of Lord Dunedin:

"The rules that have been elucidated by a long course of decisions in the Scottish Courts may be summarised thus: The question must be a real and not a theoretical question;

The person raising it must have a real interest to raise it;

He must be able to secure a proper contradictor, that is to say, some one presently existing who has a true interest to oppose the declaration sought." (emphasis added).

In comparing the above test with the two tests referred to in the two earlier cases cited, the requirements imposed in my view are very similar. A person who has a ‘real cause of complaint’ will obviously have a ‘real question’, a ‘real interest’, and naturally, should have a ‘proper contradictor’. Similarly, a person whose rights have been ‘substantially and immediately interfered’ with will obviously have a ‘real question’, a ‘real interest’ and a ‘proper contradictor’.

In the case of Anderson -v- The Commonwealth of Australia [1932] HCA 2; [1932] 47 C.L.R. 50 at pages 51 and 52, the test applied was whether the Applicant or the Plaintiff had an interest in the subject matter beyond that of any other member of the public; i.e. whether he had any private or special interest in it.

Finally, the case of Kenilorea -v- Attorney General (1983) SILR 61 was referred to by Mr Traczyk for the test applied by Daly C.J. That case involved the question of standing under section 83 of the Constitution. The words used in section 83(I) and (2) are that the Applicant must have "interests" which "are being or are likely to be affected" by the contravention alleged. In his assessment of those words, Daly C.J. applied the "sufficient interest" test propounded by Denning M.R. and Ackner L.J., in R. v. I.R.C. Exp. Federation of Self Employed (1980) 2 W.L.R. 579. He held that the Applicant, Sir Peter Kenilorea, had a genuine grievance in relation to the subject matter of the application both in his capacity as a citizen of Solomon Islands and as leader of the opposition.

The above test has been again followed and extended in a more recent case by Muria C.J. In the case of Dr. Ronald Ziru (on behalf of SIMA Medical Centre) v. Attorney General Civil case 21 of 1993. The Applicant, Dr. Ziru, sought an order of certiorari to quash the decision of the Public Service Commission in which it had appointed an expatriate to the post of Chief Consultant Surgeon at the Central Hospital. As a preliminary matter the Attorney General sought a ruling on the question of standing of the Applicant.

In his ruling, Muria C.J., applied the "sufficient interest" test adopted in Kenilorea’s case (ibid), but then went further to express the view, "...that the test of legal standing as stated in section 83 of the Constitution is the test of legal standing to be applied not only in constitutional cases but also in any other proceedings before the Court. This is because the Constitution is the Supreme law and all other laws must be construed so as to conform with the Constitution."

Although Kenilorea and Dr. Ziru’s case are distinguishable, the test adopted is a most useful one and should also be applied in the circumstances of this case, to gauge the standing of the Plaintiff.

The question therefore that should be put is does he have a sufficient interest. And in assessing that test, one can ask in turn if he has a genuine grievance, and is he genuinely concerned? When this test is compared in turn with the other tests already mentioned, they are very similar in many respects. The only distinguishable feature in each case would appear to be the factual circumstances surrounding each case.

In the circumstances of this case, there is evidence in the affidavit of David Chow, which shows that the Second Defendant is also interested in the same land and is in the process of acquiring the said land. The purported subdivision by the Commissioner of Lands, I am led to believe, is but the first step in that process.

The Plaintiff on the other hand as has been amply canvassed in the affidavit of David Chow is equally interested in the said property, and has a genuine claim over the said property, based on the decision and assurances of the Minister of Lands and Housing. He accordingly has a genuine concern over the purported actions of the Second Defendant and would have a genuine grievance in that regard.

On those facts, I am satisfied that the Plaintiff does have sufficient interest to seek the declaration that is being sought. The question raised by Mr Radclyffe as to the powers of the Minister under section 10(1)(u) of the Ports Act to sanction any activity of the Ports Authority, is a matter to be determined after trial proper by this Court. It is not correct to say that the Plaintiff is a mere busy body and seeking a declaration that is too wide or general. From the affidavit of David Chow and paragraphs 3, 4, 7 and 8 of the Statement of Claim, it is made quite clear that the declaration sought related specifically to the proposed acquisition of the said land for the specific purposes of engaging in office, retail and tourist development. The statutory power of the Second Defendant to acquire such land for such purposes is the gist of the claim of the Plaintiff in this action; that is whether the Second Defendant had such powers or not. It is not for the Court to make a ruling on this substantive issue at this stage of the litigation. All that is required to be determined is whether the Plaintiff has standing. I am satisfied he has, and accordingly the summons is dismissed. The question of costs has been reserved and will be dealt with after submissions have been heard.

The Solicitor-General has asked to remain as a party in the proceedings although, it is clear that no action can be sustained against the Attorney General. It is my view that it would not be proper to allow the Attorney General to remain as a party in those circumstances. The only capacity in which he could be allowed to join this proceedings is as ‘amicus curiae’; but that is a matter for Counsel to advise the Court on, and subject to the consent of the parties. The name of the Attorney General accordingly, as First Defendant is struck off. The Second Defendant now becomes the defendant in these proceedings.

A.R. PALMER
JUDGE