HIGH
COURT OF SOLOMON ISLANDS
Civil
Case No. 327 of 1994
JOHN SINA AND OTHERS
ALLARDYCE LUMBER COMPANY
LIMITED,
>
JOHN MARK MATUPIKO AND
ATTORNEY-GENERAL
High
Court of Solomon Islands
Before:
F.O. Kabui, J
Civil
Case No. 327 of 1994
Hearing:
25th Jan2001
Ruling:
26th January 2001
Plaintiffs are not present
T. Kama
for 1st & 2nd Defendants
J.
Keniapisia for 3rd Defendants
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RULING
(Kab J):
This is an application by Summons in Chambers by the 1st
Defendant for the following Orders �
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1. Consequent upon the
First Defendant's undertaking given to provide the nehe necessary funds for the
Western Customary
Land Appeal Court to sit in Gizo to hear the Kazo land
appeal on a date to be fixed by the clerk of that court, the First Defendant
immediately pay $4,000.00 to the High Court towards the cost of the Western
Customary Land Appeal Court sitting and the
balance (if any) within 14 days
after an account of the costs is filed in the High Court registry and served
on the First
Defendant.
2. The Clerk to the
Westestomary Land Appeal Court surt shall set down for hearing the Kazo Land
within 14 days after
payment of the $4,000. 00 is received by the High Court
Registry.
3. Upon receipt of funds
fre First Defendant in respecespect of the balance costs of the Kazo land
appeal the Registrar
of the High Court shall forthwith account for same to
the Clerk of the Western Customary Land Appeal Court.
4. The First Defendant
recovers the full costs paid pursuant to paragraph 1 aboveabove when funds are
available for the
Western Customary Land Court sittings.
5. Such further or oth order the court may seem fit.
6. Costs the cause.
The
Facts
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The
Plaintiffs filed a Writ of Summons together with a Statement of Claim
a against the
1st
Defendant and Co-Defendants on 8th December 1994. By a Notice of
Motion filed on that same date, the Plaintiffs sought restraining orders
against the 1st Defendant and Co-Defendants. Palmer, J. granted
the orders sought on 21st February 1995.
There
e been further interlocutory proceedings following Palmer, mer, J.�s orders.
In the meantime, the 2nd Defendant took the dispute over the
ownership of Kazo land against the
1st
Plaintiff to the Vella La Vella Local Court. This Court sat to hear the
dispute on 31st August 1996 and ruled in favour of the 2nd
Defendant in the absence of the 1st Plaintiff. The 1st
Plaintiff appealed to the Customary Land Appeal Court in the Western
Province. The first hearing of the appeal was set
down for 24th
September 1997 but again the Plaintiff failed to appear. The hearing of the
appeal was therefore adjourned. The Customary
Land Appeal Court did not sit
for the whole of 1998 due to lack of funding from the Government. When a
sitting was arranged
for June, 1999, both parties failed to attend Court and
the appeal did not then proceed. There was no sitting of the Court
again for
the whole of 2000 due to lack of funding from the Government. Attempts to
settle the dispute amicably out of
Court between the disputing parties have
so far failed. Due this difficulty, the 1st and 2nd
Defendants felt that the appeal now pending before the Customary Land Appeal
Court in the Western Province be proceeded
with as soon as possible. Based
upon this feeling that the 1st Defendant decided to file its
application by Summons asking for the orders set out therein above.
st Defendant�s Application and Conclusion
>
In
Joe Rody Totorea,orea,
Roeroe and George.Ahukeni v Tiarata Integrated Forest Development Company
Limited and Bulecan Integrated
Wood International Limited
(Civil Case No. 204/2000), I ruled that
the sum of $2,000 be released from a rental trust fund for the purpose of
meeting
the cost of hearing a customary land dispute by the Malaita Local
Court in the Malaita Province. The reason for coming to Court
for that order
was that the government had failed to provide funds for the operation of the
Local Courts in the
Malaita
Province. This was a most unusual case. Unusual in the sense that one of the
parties in a dispute was providing
the funds to enable the Local Court to
hear his case. In that case both parties were Solomon Islanders. It was
beyond
doubt that this arrangement suited both parties for their own
purposes. No issue of principle of any legal nature against this
sort of
arrangement, if any, was raised in Court against the application. I
approached the matter from the purely practical
point of view and in the
interest of justice and granted the order sought. The attainment of justice
was paramount in
my mind than to refuse the order and allow the parties to
look elsewhere for justice to meet their needs. When feelings are
high in
this sort of dispute and justice is denied by the Government through lack of
funding, the use of threats and
violence to achieve one's end cannot be
ruled out. This could happen. It is a shame for the Government not to fund
the
Courts adequately. The Courts are the seat of justice. They are the
pillars of a peaceful and civilized society in any country.
Without them
there can be no respect for the rule of law. In this case, the
Attorney-General is the 3rd Defendant, represented in Court by
Mr. Keniapisia, Crown Counsel. I asked him whether there were any
constitutional implications,
if any, in this case. I had in mind matters of
principle, if any, which I needed to bear in mind in deciding whether or not
to grant the orders sought. Mr. Keniapisia said he had no submission to
make. I thought about this point but came to
the conclusion that whilst it
is shameful for the Government to let the Courts down in dispensing justice
to the populace
and all litigants in Solomon Islands, the orders sought are
not and cannot be regarded as secret deals between the members
of the Court
and the parties to the
dispute. The application is being brought openly in the Court and is for a
good purpose. However, the Government must
wake up to its duties and fulfil
them to its people.
This
case is similar to the Totorea case above. The facts are similar except that
the applicant is an investor from overseas
backed by a group of Solomon
Islander resource owners. However, the point in issue is the same. The
Government like in
the Totorea case above has failed to provide funds for
the running of the Customary Land Appeal Court in the Western Province.
The
2nd Defendant has offered to provide $4,000 for the disposal of the appeal
now pending before that Customary Land
Appeal Court. Counsel for the 2nd
Defendant, Mr. Kama, cited Order 63, rule 5 of the High Court (Civil
Procedure) Rules
1964 (the High Court Rules) as being relevant to this case.
Rule 5 states �
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�Subject to particular
Rules, the Court may l causes and matters make aake any order which it
considers necessary for
doing justice, whether such order has been expressly
asked for by the person entitled to the benefit of the order or not.�
Justice
in this case cannot be attained unless the appeal pending is resolvesolved. This
is a customary land dispute and
justice can only be seen to be done when the
appeal is resolved either in favour of the appellant or the respondent.
Justice delayed is justice denied. In this case like in the Totorea case
above, I am prepared to grant the orders sought by
the 2nd
Defendant subjects to what to this. Before I sat to hear the 2nd
Defendant's application in Chambers, I asked the Registrar of the High Court
whether it was possible for him to fund
the cost of the appeal pending
before the Customary Land Appeal Court in the Western Province from the High
Court account
and he said yes he would do it. He said he saw no problem with
that. At the closing of the hearing of the 2nd Defendant�s
application I told Counsel about this and then adjourned. In view of this
fact, I would grant the orders
sought but they would cease to be of effect
excepting the order for costs upon the Registrar of the High Court
transferring
the sum of $4,000 to the Magistrate at Gizo who must within 14
days from the receipt of the sum of $4,000 from the Registrar
of the High
Court arrange with the Clerk to the Customary Land Appeal Court in the
Western Province for a date to be
fixed for the hearing of Kazo Land Appeal.
The Registrar of the High Court again said this morning that he would
transfer
the sum of $4,000 to the Magistrate at Gizo within a few days. I
order accordingly.
F. O.
Kabui
Judge
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