Ulufa'alu v Attorney General [2002] SBCA 3; CA-CAC 015 of 2001 (17 December 2002)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Civil Appeal No. 015 of 2001

BETWEEN:

HON BARTHOLOMEW ULUFA'ALU
Appellant

AND:

THE ATTORNEY GENERAL
First Respondent

THE HON MANASSEH SOGAVARE
Second Respondent

CHARLES DAUSABEA
Third Respondent

ANDREW NORI
Fourth Respondent

MEMBERS OF THE
JOINT MALAITA EAGLES FORCE/PARAMILITARY FORCE
Fifth Respondent

REASONS FOR DECISION

By notice of appeal filed on the 7th December 2001, the appellant appealed against the order of the Deputy Chief Justice dismissing a Notice of Motion in which he claimed rights under the Constitution as caretaker Prime Minister; consequent upon various declarations that he sought, including one that the parliamentary election of Honourable Manasseh Sogavare was invalid. The notice of appeal also relates to those orders of Palmer Deputy Chief Justice striking, as improperly joined, the 2nd, 3rd and 4th defendants. The reasons for the decision of the Deputy Chief Justice, published on the 9th November 2001, after addressing the various arguments of the parties, found that the matters relied upon gave no cause for declaratory relief and were not justiciable.

Since then, a further parliamentary election has been held, with the consequent election of our present Prime Minister, the Honourable Allen Kemakeza following upon that of the Honourable Manasseh Sogavare which rather nullifies the ultimate claim for relief in the original notice, that the High Court cause the reinstatement of the appellant, as Prime Minister, "until an election is held for that office in accordance with the Constitution". Since the time of the original motion, there have been two elections of a Prime Minister, and neither has been challenged.

Nevertheless, the appeal relies upon S.11 of the Court of Appeal Act (Cap 6) and requires no leave, rather is an appeal as of right from the final decision of the High Court. The merits of the appeal are for the Court of Appeal to decide.

The application before me is that filed on the 31st October 2002, seeking this Courts' orders directed to the Accountant General, the Minister of Finance and others, to fund a sitting of the full Court of Appeal to enable this appeal to be heard.

Now this application came before me on the 2nd December when Mr. Lavery appeared for the applicant. Whilst there were appearances for the various respondents, Mr. Lavery spoke of the need to fund a sitting of this Court, and read the appellant's affidavit filed in support. Before proceeding further, I took the view that I should be appraised of the actual position, in so far as funding for a sitting of the Court, was concerned. With the agreement of all counsel, and without further argument, the application was stood over, pending a report by the Registrar. That report was promptly furnished on the 17th December, but the application was not pursued until 1st May when I again stood the cause over to the 7th May to enable the attendance of the Attorney.

Because the Registrar's Report is material to illustrate the failure of the responsible authorities, (addressed in the Registrar's memorandum of the 29th October last included his Report) to respond to the Court approach, I have appended a copy to my reasons.

On the 7th May, the appellant addressed me in terms of the positive legal duty in the Government to fund the Court, and that budgetary appropriation had been made in last year's budget for the judiciary. The application is not intended to interfere with the executive or other arms of government. Where the budgetary allocation is apparent, and approved by Parliament, the Court has power to and should order its release. How the Court exercises its powers is for the Court to decide.

Whilst the appellant's summons was in terms of money for his appeal, he addressed the issue of the apparent non-payment of the Courts budgetary allocation. That aspect goes beyond the tenor of this summons but does raise the wider issue, common, it would seem, to most, if not all government departments and agencies. Despite parliamentary approval of appropriation, little if any money has been forthcoming. Hence the piece-meal approach, shown by the Registrar's Report, in seeking funds for particular functions of the judiciary.

The Attorney acknowledged that the appellant had been waiting for an extended period for the hearing of his appeal. He reminded the Court of the Constitutional imperative in S. 10(8) of the Constitution, that a prescribed person should be given a fair hearing within a reasonable time.

He referred me to the Crown Proceedings Act where, in S.18 a proviso allows only declaratory orders, in lieu of injunctive or specific orders requiring something to be done by the Crown in proceedings against it, and S.36(5) which does not admit a discretion in the High Court to make orders against the Crown by way of mandamus.

He went on to say that he did not know whether the budgetary allocation for the Courts were paid. (Well, I think it is fair to say, on the authority of the Registrar’s Report, that some of the allocation has not been received!)

But he did concede that, as a matter of law, the Court was entitled to the allocation and consequently, may make declaratory orders. But not this Court, for the Court of Appeal Act (Cap 6) makes no provision for such powers, rather the High Court, in its original jurisdiction would appear to be the appropriate Court.

On a reading of the Court of Appeal Act, there is clearly no power to make orders of the nature sought by the appellant and, as a creature of Statute, it has no inherent jurisdiction to hear this application for funds. The fact that I originally entertained the application was, it transpires, a mistake, but cannot give me jurisdiction by reason of having embarked on the application. There is no power in the Court of Appeal Act to entertain such an application.

The power would appear to lie with the High Court, as the Attorney and Mr. Moti say, under S 18(1) of the Constitution. Section 19 of the Court of Appeal Act deals with the Courts power in relation to the conduct of appeals. It cannot be extended to include a presumed power to order the Accountant General or the Minister of Finance to do an act.

To afford some assistance Mr. Moti went on to say that from a pragmatic point of view, S.6 of the Court of Appeal Act provides for the constitution of a Court of Appeal by way of 2 judges, where the President is of opinion, it is impracticable to summon 3 judges. The mechanism, he says, for the resolution of these problems lies with the President.

I need not make a finding on his submissions on the practical matters, for this Court has clearly shown to be without power to deal with the application for it has been instituted in the wrong Court. I must take the point.

Order

Application of 31st October 2002 dismissed. No order as to costs.

Brown J

[Appended Report of Registrar dated 17th December 2002] – Ed.: Not appended to this copy