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Knight v Attorney General [2005] SBHC 6; HCSI-CC 349 of 2004 (6 May 2005)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case Number 349-04

REGINA KNIGHT

V.

ATTORNEY-GENERAL

High Court of Solomon Islands
(Palmer CJ)

Date of Hearing: 18^th October 2004
Date of Judgement: 6^th May 2005

A. Radclyffe for the Plaintiff
N. Moshinsky Q.C. and F. Waleanisia for the Defendant

Palmer CJ.: This is an application by Originating Summons filed 23^rd July 2004 as to ownership of a quantity of gold retained on the order of the Acting Chief Magistrate during proceedings in the Central Magistrates Court on 21^st June 2004. The Plaintiff had pleaded guilty and was convicted on a charge of purchasing gold from persons not holding a gold dealers licence contrary to section 63 and Part VII of the Mines and Minerals Act. At time of arrest, approximately 1 kg of gold was seized. It was not in dispute that 325 gms belonged to her as they had been purchased from a licensed gold dealer. The remaining 675 gms of gold (“the Gold”) are the subject of this application.

The Plaintiff submits that the Gold belonged to her by virtue of the fact that it had been purchased as a commodity from others and that accordingly should be restored to her at conclusion of her case. In essence, her claim of right is based in contractual law as a valid purchaser of gold.

Learned Counsels for the Defendant on the other hand submit that ownership of the Gold vests in the Crown. They rely on the definition in section 2(1) of the Mines and Minerals Act (cap. 42) (“the Act”) which expressly provides that ownership of such object vests in the Crown. I quote:

“All minerals of every description in or under all lands of whatsoever ownership or tenure or in whatsoever possession or enjoyment they may be, are and shall be deemed always to have been, vested in the people and Government of Solomon Islands.”

Consistent with this definition is the provision in the Preamble to the Constitution which provides that “... the natural resources of our country are vested in the people and the government of Solomon Islands.” Learned Counsels submit that section 2(2)(c) of the Act provides that no person shall acquire any right, title or estate in any minerals save in accordance with the provisions of that Act. Section 53(1) provides that no alluvial mining can be undertaken without a permit. It follows unless a permit is obtained for alluvial mining no person is allowed to carry out alluvial mining. Secondly, the law forbids disposal of gold obtained by an alluvial miner other than to a licensed gold dealer^[1]. In this instance they argue where the express provisions of the Act have not been complied with, the alluvial mining operation is illegal and the provisions of section 2(2)(c) of the Act will prevail such that no person can acquire any title to the gold in question. The ownership accordingly remains with the Government of Solomon Islands.

Learned Counsels submit that the Gold is a “mineral” within the meaning in section 3 of the Act and also point out that it is not in dispute that the villagers who sold the Gold to the Plaintiff did not possess any alluvial mining permit to enable them to remove the Gold from the soil and to appropriate it.

The second argument pressed by the Defendant is that it would be contrary to the purposes and intent of the Act if it can be argued that such Gold that had been removed illegally can after extraction be deemed to be in the lawful possession of an illegal purchaser.

Thirdly, they argue it is contrary to a fundamental principle of public policy that no man should profit from an illegal act. Learned Counsels relied on the classic statement by Lord Mansfield^[2] in Holman v. Johnson that:

“The principle of public policy is this: ex dolo malo non oritur actio. No court will lend its aid to a man who founds his cause of action upon an immoral or illegal act....”.

This was reiterated in Euro-Diam Ltd v. Bathurst^[3] by Kerr L.J. where he said:

This principle “...rests on a principle of public policy that the courts will not assist a plaintiff who has been guilty of illegal (or immoral) conduct of which the courts should take notice.”

Having considered submissions of learned Counsels carefully, I am satisfied the views of learned Counsels for the Defendant must prevail. I accept submissions of Counsel that there is no dispute that the Gold sold to the Plaintiff had been extracted by villagers who did not possess any alluvial mining permit. It is for the Plaintiff to show on the balance of probabilities that this Gold had been sold to her by persons lawfully entitled to. I accept their submission that the Gold had been extracted illegally. I also accept submission that the Plaintiff did not have permit to acquire that Gold from those villagers. She did not have any gold dealer’s licence.

The result of all these must be to the effect that title remained with the Crown. None of the persons from beginning to end had legally acquired title to the Gold. Plaintiff therefore had no right to it. It follows no good title was ever acquired from the beginning or conferred. The Gold was illegally mined and illegally sold and purchased by the Plaintiff. Sections 2(1) and 2(2)c) of the Act accordingly must apply.

Further the submission of application of fundamental principles of public policy must necessarily apply to the facts of this case where the extraction through to acquisition at Gold were done in contravention of statute law. The Act impliedly prohibits the extraction of gold by alluvial mining by requiring a permit to be obtained for such activity. It expressly prohibits disposal of such gold other than to a licensed gold dealer. The transactions entered into accordingly are unlawful and unenforceable. This court cannot be seen to be assisting a party benefiting from her illegal actions.

The answer to the question asked accordingly is that the title vests in the Crown.

The Court.

^[1] Section 54(1)(a)
^[2] Holman v. Johnson [1775] EngR 58; (1775) 1 Cowp 341, 343; applied Bowmakers Ltd v. Barnet Instruments Ltd (1945) K.B. 65, 72, quoted Chitty on Contracts 29^th Edn at para 16-007.
^[3] Kerr L.J. Euro-Diam Ltd v. Bathurst (1990) Q.B. 1, quoted Chitty on Contracts (Supra) at 16-007