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Kalena Timber Company Ltd v Harry [1999] SBHC 153; HCSI-CAC 004 of 1999 (2 August 1999)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No.004 of 1999

KALENA TIMBER COMPANY LIMITED

-v-

ASERY HARRY

High Court of Solomon Islands
(KABUI, J)
Civil Appeal No. 004 of 1999

Hearing: 28th July 1999
Judgment: 2nd.August 1999

J. Sullivan for the Appellant
S. Watt for the Respondent

Ruling

(F. O. Kabui, J): This is an application for leave to appeal against part of the judgment delivered by Muria, C.J. on 21st May, 1999 under rule 9 of the Court of Appeal Rules, 1983 (L.N. 66/83). I sat to hear this application for leave in my capacity as an ex officio judge of the Court of Appeal under section 85(2) (b) of the Constitution.

Facts

Civil Case No. 64 of 1993 was heard by Muria, C.J. on 14th May, 1999. The parties were the Applicant/1st Defendant and the Respondent/Plaintiff. There was also a Second Defendant who is not a party to this application. Muria, C.J. delivered his judgment on 21st May, 1999.

Part of the Judgment being appealed

The part of Muria, C. J’s judgment being appealed concerns two issues. The first issue is His Lordship’s view at page 5 of His Lordship’s judgment that customary law was an equal source of law as against the Trustee Act, 1925 being an Act of general application under Schedule 3 to the Constitution. The second issue is His Lordship’s view that the principles in customary law applicable to trustees be not curtailed by applying the provisions of the Trustee Act, 1925 above. It is against these views that the Applicant/1st Defendant sought leave to appeal to the Court of Appeal.

The Applicant’s Case

The Applicant’s case is clearly borne out by its application and the grounds supporting that application. The effect of Mr. Sullivan’s argument, Counsel for the Applicant, was that Muria, C.J. was wrong in postponing a decision on these two issues to be decided later in a trial hearing as there was so basis to do so. It is clear from the judgment of Muria, C.J. that the Applicant/1st Defendant at the hearing on 14th May, 1999 before Muria, C.J. had applied for a Court ruling under Order 27, rule 4 of the High Court (Civil Procedure) Rules 1964 (the High Court Rules). That is to say, the Respondent/Plaintiff’s Statement of Claim should be struck out on the ground that it disclosed no cause of action. It was therefore a matter of discretion on the part of Muria, C.J. to strike out the Statement of Claim or not depending upon the weight of affidavit evidence before His Lordship.

The Respondent’s Case

Mr. Watt’s position was that he supported the ruling by Muria, C.J. First, Mr. Watt relied on the proposition stated by Principal Magistrate, Stanford-Smith in K v T and Ku, In re Custody Application [1985/1986] S.I.L.R. 49 that the word “Parliament” as defined by section 144 of the Constitution only meant “Solomon Islands National Parliament” and not the United Kingdom Parliament meaning that the Trustee Act, 1925 being an Act of the United Kingdom Parliament was not an Act of the National Parliament of Solomon Islands in terms of paragraph 3(2) of Schedule 3 to the Constitution. In other words, the Constitution does not provide for the resolution of any conflict that may arise between customary law and the Trustee Act, 1925 of the United Kingdom Parliament being an Act of general application under Schedule 3 to the Constitution. For what it is worth, that is how I understood Mr. Watt’s argument to be. Mr. Watt also relied on the case of Remesio Pusi v James Leni & Others (Civil Case No. 218 of 1995), referring me to page 8 of Muria, C.J.’s judgment in that case.

At that page, Muria, C.J. said,

“ The Constitution itself recognises customary law as part of the law of Solomon Islands and its authority therefore cannot be disregarded. It has evolved from time immemorial and its wisdom has stood the test of time. It is a fallacy to view a constitutional principle or a statutory principle as better than those principles contained in customary law. It is the circumstances in which the principles are applied that vary and one cannot be readily substituted for the other.

I have made those observations because it appears to the Court that this case is a classic example of an attempt to use the Constitution to circumvent the lawful application of custom, a course of action that may well endenger disharmony in society. Such a course must be allowed to flourish in this country”.

Mr. Watt’s last point was that the Summons for application to strike out a Statement of Claim on the ground that it disclosed no cause of action was reserved only for special cases this case being not one of that category of cases.

The Ruling

The position of the Applicant/1st Defendant before Muria, C.J. was that the Statement of Claim filed by the Respondent/Plaintiff disclosed no cause of action on the authority of Luke v Kensington Hotel Company [1879] 11 Ch. D. 211 and Allardyce Lumber Co. Ltd. v Attorney General & Others [1988-89] SILR 78. That is to say, the Respondent/Plaintiff being one of the 9 trustees who signed the Agreement to Acquire Timber Rights on 6/12/88 could not file action No. 64 of 1 993 against the Applicant/1st Defendant without the consent of other the 8 trustees. That being the case, there was no cause of action. Muria, C.J. found there was a cause of action against the Applicant/1st Defendant and allowed the matter to proceed to trial. His Lordship also allowed any matters of customary law affecting the position of the Respondent/Plaintiff as against the provisions of the Trustee Act, 1925 of the United Kingdom Parliament to proceed to trial. I think what Muria, C.J. meant was that any issues of customary law in favour of the Respondent/Plaintiff must be raised and tested in evidence at the trial. That is, the raising of the provisions of the Trustee Act, 1925 of the United Kingdom Parliament should not be used to cut down this opportunity. As I have said, the Court does have a discretion to decide matters raised one way or the other under Order 27, rule 4 of the High Court Rules. I can see nothing wrong with the exercise of that discretion in this case. In fact, Muria, C. J’s ruling was in accordance with the observation of the Solomon Islands Court of Appeal in Price Waterhouse & Others v Reef Pacific Trading Limited & Another (Civil Appeal No. 4 of 1995). At page 13 of the judgment, the Court said,

“In our view, the order made by the Chief Justice was the proper order in the circumstances. To allow a hearing of application under 0 27 r 2 would be to allow a hearing additional to the trial of the matter which would have resulted in multiplicity of proceedings and therefore extra costs to the parties. In a developing country such as Solomon Islands, this Court ought not to encourage such a multiplicity of proceedings.”

In my view, the above statement by the Solomon Islands Court of Appeal is equally applicable to applications under Order 27, rule 4 of the High Court Rules. However, this is not the end of the matter. This application is about seeking leave to appeal to the Court of Appeal. My duty is to decide whether or not the proposed grounds of appeal do have merit in this case. I am not to decide the grounds of appeal so as to decide the issues raised in the grounds of appeal. The law is clearly set out at page 8 in the judgment of the Solomon Islands Court of Appeal in Price Waterhouse & Others v Reef Pacific Trading Ltd. referred to above wherein the Court said

“The Second consideration relied upon by Counsel for the appellants was that the appellants proposed grounds of application for leave and proposed grounds of appeal have merits. In determining this matter, the Court does not have to consider the grounds of appeal in such detail so as to decide the issues raised in the proposed grounds of appeal. That would result in determination of an appeal without an appeal ever being properly instituted. In our view, it would be sufficient for purposes of determining an application for extension of time to simply have regard to the proposed grounds of appeal and determine whether there is any merit in the proposed grounds of appeal. The question is: whether there are arguable grounds of appeal and not whether the grounds of appeal will succeed on appeal. The latter question will be determined at the hearing of the appeal”.

Clearly, in my view the proposed g rounds of appeal in this case do have merit. They present arguable points of law. I would grant leave to appeal. The application is therefore granted. Cost be the cost in the appeal.

F. O. Kabui
Judge