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High Court of Solomon Islands |
HIGH COURT OF SOLOMON ISLANDS
Civil Case No. 231 of 1999
PREMIUM BALSA PRODUCTS LTD
v
THE ATTORNEY GENERAL
(on behalf of the Investment Board of Solomon Islands)
High Court of Solomon Islands
Before: Lungole-Awich, J
Civil Case No. 231 of 1999
Date of Hearing: 10 August 1999
Date of Judgment: 10 August 1999
Mr. R Teutao for the plaintiff /Applicant
Judgment: Ex Tempore
JUDGMENT
(LUNGOLE-AWICH, J): The application of the plaintiff is made ex parte under Order 61 rule 2, for leave to apply for order of Certiorari. The plaintiff’s substantive case is against the decision of the Foreign Investment Board, created under s. 3 of the Foreign Investment Act Cap. 142 in the Laws of Solomon Islands. The Board on 24.6.1998 cancelled Certificate of Approval issued to the plaintiff. Following the refusal, the plaintiff made representation, but the Board on 12.4.1999 confirmed the cancellation of the certificate. Without the Certificate, the plaintiff, a company owned by non citizen, cannot carry on business in Solomon Islands.
The plaintiff has already filed at Court on 5.7.1999, a case by originating summons dated the same day. Now it intends to file a case for order of certiorari to issue quashing the decision of the Board. It is obviously irregular to commence proceedings in one cause by two different originating processes. The explanation given by learned counsel Mr. Teutao, is that they have come to Court in those two ways because time to apply for order of certiorari might have already expired. The time limited is given as 6 months - See Order 61 rule 3. Mr. Teutao explained further that the plaintiff’s case by originating summons is based on breach of statute, namely, s. 15(2) of the Foreign Investment Act. Those explanations cannot hold.
On the merits, there are reasonable causes of action based on breach of s. 15 (2) and on the requirement of natural justice. At this stage it is not necessary to examine the evidence in much detail, so not too much should be read in my assessment of the strength of the case at this stage of the proceedings. There is also arguable point as to whether the 6 months limitation period has expired. A sufficient case has been made for leave to commence proceedings for order of certiorari. I grant leave. The question of limitation period may be argued again should the plaintiff proceed by application for order of certiorari.
I have to warn that the applicant/plaintiff will not be allowed to proceed by two different processes; it will have to choose between originating summons or application for order of certiorari. The difficulty that is likely to arise, should the plaintiff proceed by application for order of certiorari is that the order will be denied if other remedies are found to be available. Order of certiorari is discretionary. I, however, see no reason why, if during an application for certiorari, the plaintiff succeeds in establishing its case for other reliefs, those other reliefs should not be granted or ordered instead of the order of certiorari.
Costs are reserved.
Delivered this Tuesday the 10th day of August 1999
Sam Lungole-Awich
Judge
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