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Fasuia v Melanesian Metals Corps (SI) Ltd [2012] SBHC 98; HCSI-CC 372 of 2010 (31 August 2012)

HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 372 of 2010

BETWEEN:

Leslie Fasuia
Claimant

AND:

Melanesian Metals Corps (SI) Limited
First Defendant

AND:

Attorney-General
Second Defendant
(Rep. the Commissioner of Police)

Date of Hearing : 13 August 2012
Date of Ruling : 31 August 2012

Mr. Iroga for the Claimant
Mr. Hanu for the Second Defendant
No Appearance for the First Defendant

RULING

Mwanesasula J:

1. This is a pre-trial conference ("PTC") in relation to Civil Case No. 372 of 2010 filed on 8 October 2010 against the Defendants. The Claimant seeks: (a) a mandatory order directing the Second Defendant and or the First Defendant to release the OBM Engine and the Ray Boat in good working condition; (b) An order that the First and Second Defendants pay damages to the Claimant to be assessed; (c) An order that the costs of the Claimant be paid by the First Defendant on an indemnity basis; and (d) Any further or other order the court deems fair and just.
   
2. This is a claim for judicial review under chapter 15 of the Solomon Islands Courts (Civil Procedure) Rules of 2007 ("the Rules"). During the PTC, Counsel for the Second Defendant submitted that this claim is not a proper case for Judicial Review, and for that reason it should be struck out and dismissed. Counsel for the Claimant in response, submitted that the case is a proper one for Judicial Review because there is no remedy available to the Claimant.
   
3. Counsel for the Second Defendant then submitted that the Claimant does not have any arguable case against the Defendants. He cited rule 15.3.18 of the Rules and the case of Beverly v Registrar of Titles (Unreported, HCSI Civil Case No. 273 of 1997, 07/04/99) in support of his argument.
   
4. Rule 15.3.18 states: "The Court will not hear the claim unless it is satisfied that: (a) the Claimant has an arguable case; and (b) the Claimant is directly affected by the subject matter of the claim; and (c) there has been no undue delay in making the claim; and (d) there is no remedy that resolves the matter fully and directly".
   
5. In Beverly v Registrar of Titles the court relevantly said as follows:
   

"It is, however, now settled law that mandamus can issue against an officer of the Crown where the obligation is that of the officer and not something that only the Crown itself may do. It may be made against the officer of the Crown who is obliged by statute, to do some ministerial act; or against a subordinate tribunal to carry out its adjudication, but not to adjudicate to a particular result........... An order of mandamus is available when a person is charged with a duty to carry out public duty and he has failed upon demand by a person whose interest is affected. There must be a legal right to the duty to be carried out, the duty must have been demanded unsuccessfully and there is no specific or effective or convenient remedy available for the failure to carry out the duty"

6. The brief facts of this case are these: The First Defendant is the owner of the OBM engine and the Ray Boat ("the goods") in this claim. Mr. Sam Russell removed them without the owner's consent, from Mr. Ben Maenu's compound, and sold them to the Claimant for $60,000.00 on 8 January 2010. On 26 July 2010, the First Defendant put out a public message that the goods had been sold illegally and held at Adagege on Malaita. It authorised Mr. Maenu to repossess them. Mr. Maenu then reported a larceny case in relation to the goods to the Police in Honiara. The Second Defendant through his officers then seized the goods at Adagege between 24 and 25 of September 2010. Mr. Russell was clearly implicated in the larceny of the goods when he was interviewed by the Police. It would have been a straight forward case to prosecute before the court. That could be done without retaining the goods for exhibits as photographs of them could merely be tendered to the court during trial. It appeared though that the case was discontinued after the First Defendant reposed its goods. There is no evidence that the goods were ever brought before the court. They may have been released after the investigation pursuant to section 104 (i) of the Criminal Procedure Code (Cap. 7). Further, there is no evidence that the Commissioner of Police had refused to release the goods to the Claimant from Police Custody.
   
7. It is not disputed that the Claimant bought the goods in good faith from Mr. Russel. But the difficulty that the Claimant faced in his claim is that the ownership of the goods was still vested in the First Defendant at the time of the sale of the goods. In this claim the Claimant bought stolen goods from Mr. Russell.
   
8. It is clear that the Claimant suffered loss when the goods were returned to the First Defendant. But as I have said earlier, the property in the goods still remained in the First Defendant when Mr. Russell sold them to the Claimant on 8 January 2010. It therefore follows that the Claimant does not have an arguable case against the Defendants. However, he can still recover his money from Mr. Russell in a civil case. This claim is struck out and dismissed.
   

Order: 1. This claim is struck out and dismissed.
2. Parties to pay their own costs.

Order accordingly.

THE COURT