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Rano v Attorney General [2016] SBHC 93; HCSI-CC 111 of 2014 (27 June 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS

CIVIL JURISDICTION

Civil Case No. 111 of 2014

BETWEEN:
WILSON RANO
First Claimant

AND:
RODNEY HIVA
Second Claimant

AND:
ATTORNEY-GENERAL
First Defendant

AND:
DETECTIVE CONSTABLE MICHAEL KEMADIKA
Second Defendant

Date of Hearing: 5^th April 2016.
Date of Decision: 27^th June 2016.

Mr. T. Mathews QC and Mr. B. Kaehuna for the First and Second Claimants.
Mr. Banuve for the First and Second Defendants.

KENIAPISIA; PJ:

JUDGMENT

Introduction

1. First claimant (Mr Rano), is a private legal practitioner. Mr Rano is the partner of Rano and Company – Barristers and Solicitors, Law firm, based in Honiara. At the material time, Mr Rano or his Law-firm is the retainer solicitor for the second claimant (Mr Rodney Hiva) and his tribe, having taken over from Charles Ashley, in 2012.
   
2. Mr Hiva instructed Mr Rano to lodge an appeal against the decision of Marovo Council of Chiefs made in October 2010 to the Local Court, Western Magistrate Court (“LCW”). That instruction was acted upon in June of 2013, when Rano prepared appeal documents for Rodney Hiva, with assistance from another of Hiva’s tribesman, Mr Nilton Chite.
   
3. In preparing the appeal documents to lodge to LCW, Mr Chite and Rano had to complete Form I, required under the Local Courts Act (Cap 19). Form I, because, Mr Hiva’s party did not accept the Marovo Council of Chiefs’ decision of October, 2010 (“2010 MCC decision”).
   
4. Police alleged against Rano and Chite that the completed Form I, submitted in appeal to LCW, is a fabricated version of the 2010 MCC decision. Police acted on a complaint by one named, Mr Ataban Tahu, the complainant/winning party in the MCC 2010 decision.
   
5. Police had laid charges against Chite and Rano in Criminal Case No. 167/2015, Central Magistrate Court, for forgery and fabricating evidence, under the Penal Code Act (Cap 26). Charges were later withdrawn.
   
6. This case was instigated to challenge the Search Warrant issued and executed on Rano’s Law firm, prior to laying of charges, against Rano and Chite in 2014. The charges were subsequently withdrawn and claimants acquitted in 2015.
   

Background Facts

7. In March 2012, Mr Rano had just lost a Court of Appeal Case he filed in appeal on behalf of Mr Hiva’s tribe in Civil Appeal Case 01 of 2012. The Court of Appeal upheld the High Court judgment by Mwanesalua J, that the issue of ownership remain alive and that the 2010 MCC decision, the latest chief’s decision, gives ownership to Nono group.
   
8. Following that, Mr Rano appealed to LCW, against the 2010 MCC decision on behalf of Mr Hiva’s tribe. The person who assisted Mr Rano to prepare appeal documents is Mr Nilton Chite. In preparing the appeal documents, one of the important appeal documents, was the Completion of Form I – Unaccepted Settlement. The other documents prepared for the appeal are: Statement of Case of the Appeal and Summons.
   
9. For one to appreciate the documents prepared for the appeal from the 2010 MCC decision, one must have working knowledge of Local Court Act (Cap 19). Having prepared the mentioned appeal documents and submitted the appeal, the LCW, by letter dated 6^th June 2013, wrote to inform Mr Chite that the case of Hiva –v- Tahu (appeal by Hiva) was listed for hearing at Munda on 24/6/2013.
   
10. Mr Tahu then alleged that Rano and Chite had fabricated the 2010 MCC decision, as per the submission document on Form I, of the appeal documents. Mr Tahu then made a complaint to the National Criminal Investigation Department at Rove, Honiara, on 20/2/2014.
    
11. The allegation and complaint by Mr Tahu is that, Mr Chite and Rano, had created a Form I (Unaccepted Settlement), and had submitted it to LCW, in order to deceive LCW, because Tahu alleged, Chite and Rano had actually fabricated the 2010 MCC decision, through the Form I appeal document submission. And that in doing so, both men had made the fabricated decision (Form I) to supersede the 2010 MCC decision.
    
12. As part of the complaint, Mr Tahu alleged that Chite and Rano also forged the signatures of Ambrose Ngatu and Tui Kavusu, two chiefs whose signatures appeared on the Form I, submitted by Tahu in appeal to LCW. Police were satisfied with the allegations and registered Mr Tahu’s complaint as NCID CRB 10/14.
    
13. From investigation, the police was suspicious that Mr Rano was the one who prepared the fabricated decision (Form I). Police suspected this to be the case, because Rano was the Lawyer for Chite and Choe Integrated Company. Additionally, from interview police had with Mr Chite, on 5/3/2014, Chite told Police that Rano advised him,^[1] to pursue the Unaccepted Settlement, in the appeal document submission to LCW.
    
14. After investigations, the police obtained a Search Warrant (“SW”) in the morning part of 9/4/2014, at the Honiara Central Magistrate Court, to enter and search Rano’s Law-firm in order to obtain the documentary evidence. In the afternoon of 9/4/2014, the Police led by Detective Constable Kemadika, executed the SW and entered Rano’s Law Office, at BSP building, at Point Cruz, Honiara. They confiscated computer and files belonging to Hiva’s tribe, from Rano’s office.
    

Issues as per Claim or Reliefs Claimed

15. In filing this claim, the first and second claimants (“claimants”) assert the issues:
    
    • 15.1 Whether the SW was validly issued?
      
    • 15.2 Whether a Law Office by virtue of Solicitor/Client confidentiality is not subjected to Police search?
      
    • 15.3 Whether the offence alleged to be committed, is an offence known in law?
      
    • 15.4 Whether the Magistrate who issued the SW lacked jurisdiction to do so?
      
    • 15.5 Whether the Police action complained of (execution of SW) amounts to breach of the claimants’ fundamental human right to privacy and protection of property enshrined in Article 9 of the Constitution?
      

Validity of the Search Warrant

16. In paragraph 19 of the claimants’ closing written submission, the validity of the SW is contested on seven (7) grounds as follows, against the requirements of Section 101 of the Criminal Procedure Code (Cap 7): -
    
    • 16.1 That there is no proof on Oath – The SW is at Exhibit MK5 of the sworn statement (ss) by Constable Kemadika filed 5/5/2014. The information on the SW is said to be on Oath. That is enough evidence that the Information on the SW was issued on Oath made by Kemadika, before the Presiding Magistrate.
      
    • 16.2 That there is no proof on Oath to show in fact or according to a reasonable suspicion that a thing by or in respect of which an offence has been or which is necessary for an investigation into an offence is in a building or place - As per 16.1 above, I am already satisfied there was Oath. Next is whether the Information is adequate to arouse a reasonable suspicion that a fabricated decision, in relation to which an offence has been committed or necessary for investigation into an offence is inside of the building that housed Rano’s Law Office. I think there is adequate Information on the SW to arouse a reasonable suspicion, because of the use of the words “fabricated decision”. Though there is broad reference to the fabricated decision, I am satisfied that is adequate description of the alleged offence. That broad description is adequate in my view to arouse a reasonable suspicion that the fabricated decision necessary for investigation into an offence is inside of the building that housed Rano’s Office. I made this conclusion because prior to the obtaining of the SW, statements have already been taken from Chite^[2] and Ataban Tahu (the Complainant). It is logical that those were the Information upon which the Investigation for the fabricated decision or charge was to be made. These were, however, not reduced to writing on the SW. But that is alright because this is not the proper “indictment of a charge”. The requirement here is whether there was adequate Information to arouse reasonable suspicion?
      
    • 16.3 That the Search Warrant lacks particularity of the things to be searched, instead it outlines broadly what the executing officer hopes to find – (fishing for evidence only) – Though the description of the things to search for may be very broad, I nevertheless find that the Information supplied are adequate to identify clearly the things to be searched for. And they are clearly mentioned on the SW as: copy of the fabricated decision; computer that was been used to prepare the document (I infer document here refer to the fabricated decision); File in the name of Nilton Chite or Rodney Hiva or might Choe Integrated Company and Copy of the Marovo Council of Chiefs’ original decision. All these documents broadly described are related to the investigation into fabricating a decision.
      
    • 16.4 That it lacks certainty of what the Search was for and the person against whom it is issued - I already concluded above that the SW has adequate information on what the Search was for (16.3 above). I can also conclude that the SW also has adequate Information on the person against whom, the SW was issued. And that person is described in detail as: Rano and Company Barristers & Solicitors, first floor of Bank of South Pacific, Point Cruz, Mendana Avenue, Honiara, Solomon Islands.
      
    • 16.5 The offence alleged to have been committed or is suspected to have been committed was not specified, so that it can clearly show the connection between the Warrant and the things being sought as evidence - I would agree with the claimants in here. I do not know why this was so, because, from what I have discussed above, the offence here was clearly in relation to “fabrication of Evidence”. And “fabrication of evidence” is an offence under Section 110 of the Penal Code Act (Cap 26). There is no identical offence under Section. 102 – 107, inclusive of 108 in the Penal Code Act (Cap 26) as per the Information on the face of the SW.
      
    • 16.6 That the offence alleged to have been committed is not an offence known in law - For the reasons, I alluded to in 16.5 above, I agree with the claimants. The Magistrate and the police officer (Kemadika), made a terrible mistake, because, on the face of the record (on the SW), there is no offence known in law in relation to fabrication under Section 108 (i) of the Penal Code Act (Cap 26) or indeed the preceding six (6) sections to Section 108 (i) – i.e. Sections 102 – 107. Had the Magistrate taken extra care, he would have realised that the offence relevant/known in law to the facts before him was prescribed under Section 110 of the Penal Code Act (Cap 26) – Fabricating evidence. This finding is sufficient for me to declare that the SW was void ab initio and that the Magistrate lacked jurisdiction to issue the SW at the first place. I reached this conclusion on the facts before me, having considered the written submissions and case authorities relied on by the claimants^[3]. The same conclusion, apply to and settles issues 15.3 and 15.4 above in the negative. That is to say the offence alleged in the SW is not an offence known in law and that the Magistrate lacked jurisdiction to issue the SW in the first place.
      
    • 16.7 The Magistrate failed to rigorously demanding or satisfying himself especially where solicitor -client confidentiality is in issue or rather he ought to have satisfied himself of the proof especially when it involves piercing the solicitor –client confidentiality protected by the Constitution, Common Law and Sections 143 and 144 of the Evidence Act – My findings on this ground are canvassed in detail in the paragraphs below.
      

Whether a Law Office by Virtue of Solicitor/Client Confidentiality is not subjected to Police Search?

17. In the claimants’ written submission the other issue raised is, whether a Law Office by Virtue of Solicitor/Client confidentiality, is not subjected to police search? On this issue, I prefer submission by claimants’ counsels that this relationship of confidentiality is a very important one in this jurisdiction. I agree that this relationship is one of great honour and sensitivity. That it is one of fundamental human rights and an established principle in common law system. I see no reason why it should not apply in a common law jurisdiction like Solomon Islands. That relationship must be afforded every protection from impunity, with highest recognition in this jurisdiction^[4].
    
18. However, I do not think that there is anything in the Evidence Act (Act No. 12 of 2009), or the Legal Practitioners Act (Cap 16) or the Legal Practitioners Rules or indeed the Constitution to support the contention by claimants that the relationship of confidentiality prevents the search of a practitioner’s premises, where a warrant of the Court authorises it.
    
19. Firstly, Section 143 of the Evidence Act 2009 (Act No. 12 of 2009) does not apply to the execution of a SW on a law office. In fact, the Evidence Act (Act No. 12 of 2009) regulates the admission of evidence in Court proceedings. The Act is the encoding of the common law rules on evidence. And Sections 143 and 144 under Part 12 – gives privilege, for Legal Practitioners and their clients, that in the course of their giving evidence in Court, they may not be compelled to disclose to the Court, confidential communications, with some exceptions in Section 144 (2) (a) and (b).
    
20. Secondly, we see in the Police Act (Cap 110) that the police force/members has a general duty to prevent the commission of offences and public nuisances, to detect and bring offenders to justice, and to apprehend all persons when he is legally authorised to apprehend and for whose apprehension sufficient grounds exist^[5]. These duties of the Police force; meant that police officers may apprehend the claimant and or his client whenever the police are legally authorised to do so. In the not distant past, we saw, even the Office of the Prime Minister was subjected to a SW, executed by the Police. Even a law office of a prominent Honiara lawyer, late Andrew Nori, was subjected to a SW executed by the Police in the past^[6]. Though the Participating Police Force (PPF) executed the SW, the PPF is still the Police Force in Solomon Islands under the control of the Commissioner of Police under the Police Act and the Constitution. And therefore whenever legally authorized, the Police can and should search the office of lawyers, or judges, or pastors, or Ministers or any person for that matter.
    
21. Section 24 (1) of the Police Act (Cap 110) gives immunity to a police officer who has acted in obedience to a warrant issued by a court, from liability, where a police officer is sued for actions done in obedience to a warrant. I must grant that protection to the police force, in here, because apparently they were acting under a SW issued by the Magistrate Court. But the manner in which the police executed the search warrant must be condemned. There was evidence of police using foul language when carrying out the SW. Police must at all times keep to their professionalism and not let their emotions run high.
    
22. Thirdly, and fundamentally, under Section 9 (2) (a), (d) and (e), of the Constitution the actions taken by the police under the SW are recognised as exceptions. The actions taken by the police are authorised under the Police Act (Cap 110); Criminal Procedure Code Act (Cap 7) and Magistrate Court Act (Cap 20). Claimants do not content that these statutes are not reasonably justifiable in a democratic society. Therefore the actions are not a violation of the fundamental human rights protection for the privacy of home and property, under Section 9 of the Constitution. The actions are exempted under Section 9 (2) (a), (d) and (e) of the Constitution.
    
23. To this, the claimants agree that, should the SW be valid, the actions taken by Police are valid. Claimants, however, say where a SW breached Solicitor/Client confidentiality and is not valid, it cannot provide for the actions taken by Police to be validly exempted under Section 9 (2) (a), (d) and (e) of the Constitution. I have to disagree with this preposition.
    
24. My primary reason for disagreeing is because the police were acting on a SW which until quashed was valid^[7]. And so the action of the police would still be exempted under Section 9 (2) (a) (d) and (e). That is to say the police were authorised under Police Act (Cap 110) ; Section 101 of the Criminal Procedure Code Act (Cap 7) and Magistrate Court Act (Cap 20) to the extent that these three legislations provide for the prevention and investigation of breaches of the law; or that the SW was made in pursuance of an order of the Court and that the action by the Police were made for the purpose of detecting criminal offences. Police (being an officer of the Court or persons bound to execute the SW) would also be exempted from liability under Section 70 of the Magistrate Courts Act (Cap 20).
    
25. Secondly, claimants did not seek to challenge the unconstitutionality of the three legislations or parts thereof^[8]. Claimants did not contend that these three legislations which police acted under to execute the SW, are not justifiable in a democratic society. It therefore remains valid to say that the three legislations are reasonably justifiable in a democratic society. The result is that the actions taken by the police under the three legislations or parts thereof are valid and provides exemption to an argument that police have violated against the claimants’ constitutional right to protection of privacy of home and property under Section 9 of the Constitution. Only if the said three legislations or parts thereof, are unconstitutional, because they are unreasonably justifiable in a democratic society, will the claimants succeed in saying that the actions taken by police under the three legislations, or parts thereof, are unconstitutional and violates claimants’ fundamental human rights protection of privacy of home and property under Section 9 of the Constitution.
    

Whether the Police Action complained of (execution of Search Warrant)
amounts to breach of the Claimants’ Fundamental Human Rights Protection
to Privacy and Property enshrined in Section 9 of the Constitution?

26. I already reached conclusions and findings on this issue in paragraphs 22 – 25 above. I repeat and reaffirm the same under this issue and answer this issue in the negative. For completeness purposes, I should cite Section 9 of the Constitution in here to re-iterate my findings above. I underline the provisions on exemptions applied in my conclusions above.
    

“9. - (1) Except with his own consent, no person shall be subjected to the search of his person or his property or the entry by others on his premises.

(2). Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision:

(a) In the interests of defence, public safety, public order, the prevention, and investigation of breaches of the law, public morality, public health, town or country planning, the development and utilisation of mineral resources, or the development or utilisation of any other property in such a manner as to promote the public benefit;

(b) For the purpose of protecting the rights or freedom of other persons;

(c) For the purpose of authorising an officer or agent of the Government, an authority of the government of Honiara city or of a government or a body corporate established by law for a public purpose to enter on the premises of any person in order to inspect those premises or anything thereon for the purpose of any tax, rate or duty or in order to carry out connected with any property that is lawfully on those premises and that belongs to the Government, that authority or that body corporate, as the case may be;

(d) For the purpose of authorising the entry upon any premises in pursuance of an order of a court for the purpose of enforcing the judgment or order of a court in any proceedings; or

(e) For the purpose of authorising the entry upon any premises for the purpose of preventing or detecting criminal offence,

And except so far as that provision or; as the case may be, anything done under the authority thereof is shown not to be reasonably justifiable in a democratic society”.

Conclusions

27. The Search Warrant is removed into this Court and quashed. The charges were later withdrawn and claimants acquitted in 2015. I have not seen evidence why there was acquittal.
    
28. The execution of Search Warrant on a Law office is valid, and not breach of Solicitor/client confidentiality.
    
29. I decline the relief for compensation and damages; because the actions taken by the Police are exempted under Section 9 (2) (a), (d) and (e) of the Constitution. Consequently there is no need for second part of the trial regarding assessment of damages.
    
30. To the extent that I quashed the SW; I award half of costs to the claimants. Half of the costs to the claimants, because the SW and charges should not have been laid at the first place. I am satisfied the police and their advisors, lacked a working knowledge of the Local Court Act (Cap 19) and its requirement in lodging Form I, in appeals against the decision of the chiefs tribunals. The police should be taught about the process and procedure for such appeals under this Act, to avoid repeat of this mishap in the future. Without this mishap, claimants would not have born the cost of this litigation.
    
31. I refused to award costs for overseas Queens Counsel because this is a case that should be dealt with using local knowledge and expertise. Pleadings were done originally using local knowledge and expertise (Rano Law Firm). Overseas Queens Counsel was only brought in to conduct trial.
    
32. In all that I say the orders of the court in relation to the reliefs sought are:
    

31.1. Search Warrant is removed into this Court and quashed.

31.2. Execution of a SW on a law office is valid and not breach of Solicitor-Client confidentiality under the Evidence Act 2009 (Act No. 12 of 2009).

31.3. Execution of a SW on a law office is valid and does not contravene claimants fundamental human rights to the protection of privacy and property, under Section 9 of the Constitution.

31.4. Award half of costs to the claimants, on standard basis to be taxed, if not agreed.

31.5. Refused to award certified costs to overseas Queens Counsel.

31. 6. Refuse to award damages to the claimants and therefore second part of trial on damages is aborted.

THE COURT

JOHN A. KENIAPISIA

PUSINE JUDGE

^[1] Interview Record is at Exhibit MK 4 of statement by Kemadika filed 5/05/2014.

^[2]Record of Inteview with Chite dated 16/3/2014 is at Exhibit MK4 of ss by Kemadika filed 5/5/2014.
^[3] Zalao –v- Attorney General (1997), SBC A 6; CA-CAC 9 of 1996.

^[4] Idu –v- Attorney General (2004) SBHC 63; HC – CC 037/2004 (4^th August 2004) and Jouromaja –v- Zoro (2003) SBHC 28; HC – CC 264 of 2002 (21^st March 2003).
^[5] Section 21 (3) of the Police Act (Cap 110).
^[6] Nori –v- Attorney General (2006) SBHC 134; HC – CC 172 of 2005 (4^th April 2006).
^[7] Zalao –v- Attorney General (1996) SBHC 45; HC-CC 168 of 1996 (16^th September 1996).
^[8] Folotalu –v- Attorney General (2001) SBHC 149; HC-CC 234 OF 2001 (19^TH October 2001).