Qalo v Qaloboe [2004] SBCA 5; CA 004 of 2003 (2 August 2004)

COURT OF APPEAL OF SOLOMON ISLANDS
Civil Jurisdiction

Case Number 004 of 2003
High Court Case No. 283 of 2002

BETWEEN:

JACKSON QALO
Appellant

AND:

SHAKESPEAR QALOBOE SIMIONE KEBAKU, MAEKA LEOKANA, JIMMY PITAKAJI AND BOSEPOQUE
Respondents

CORAM: Lord Slynn of Hadley (President), McPherson J.A., Ward J.A.

HEARING:

JUDGMENT: McPherson J.A.
Read: 2/8/04

JUDGMENT

This is an appeal from an order of Kabui J made on 31 January 2003 that any of the parties to certain proceedings in the Customary Land Appeal Court (Western) have leave to provide funds through the office of the High Court Registrar to meet the cost (estimated at amount of about $10,000) of the sitting and hearing of a pending appeal in that Court. Stating it like this makes it sound as if the parties' concern is with their own costs of appeal; but that is not so. What is in issue is the costs of the Land Appeal Court itself, such as the travelling expenses and the daily allowances payable to members of the Court. In ordinary times those expenses would be met by Government out of the Consolidated Fund; but now, and for some time past, there have been no or insufficient funds for that purpose. Even the High Court Judges and others in the country have not been paid their salaries or have not received them on time.

In these circumstances the applicants, who are the respondents to this appeal and to that in the Land Appeal Court, proposed that the parties themselves should be at liberty to provide the funds necessary to enable the court sittings and hearing to take place. Kabui J acceded to the application on the terms stated, observing in the course of his reasons that that procedure had been followed in two other Customary Land Appeal cases which his Lordship identified by name and number. Mr. Suri of counsel, who appeared before us for the appellant Mr. Qalo, submitted that there was no jurisdiction in the High Court to make such an order. What was more, he said, providing funds in that way would compromise the independence and impartiality of the Customary Land Appeal Court. Its members would come to learn that the funds had been provided by one party to the dispute, and would either be biased in favour of that side or would come under reasonable suspicion of being biased because of it. Instead of taking the step of authorising such payment to be made, the proper course, Mr. Suri submitted, was "to condemn the conduct of the Executive Government and issue an order of mandamus" for payment or the provision of those expenses. The problem was, it was said, not that the Government did not have funds, but that it was wrongly "prioritising" expenditure of those funds: the customary land appeal courts were not being given any priority at all.

Of course, it will not escape notice that, if the appeal cannot be prosecuted, the proceedings in the Customary Land Appeal Court (Western) will be at a standstill. This will suit Mr. Qalo's purposes because he challenged the right of Mr. Qaloboe and others to fell trees on the relevant land. Having failed at the initial hearing of that matter, he lodged an appeal to the Customary Land Appeal Court. Until it is determined, a licence to fell timber cannot issue. Nevertheless, he is entitled to maintain his opposition to the course proposed if it is well founded in law; and that is what he seeks to establish by this appeal against the order of Kabui J.

It is in this context that Mr. Suri's alternative proposal or suggestion falls to be considered, which is that the applicants should have applied for mandamus to compel the Executive Government to provide funds for the Land Appeal Court sittings. With great respect to the contrary view, however, I am quite unable to agree that mandamus or any other form of coercive order is or would be available for this purpose.

Governments are not free to pay moneys out of the Consolidated Fund to whom or for what purpose they choose to select. The Constitution of Solomon Islands, in company with those of all democratic countries which follow the British Parliamentary tradition, closely regulates the expenditure of public funds. By s. 100(1) of the Constitution, "all revenues or other moneys raised or received by or for the purposes of the Government ... shall be paid into and form one Consolidated Fund". And by s 101 of the Constitution:

"(1) No money shall be issued from the Consolidated Fund except upon the authority of a warrant under the hand of the Minister of Finance.

(2) No warrant shall be issued by the Minister of Finance for the purpose of meeting any expenditure unless -

(a) the expenditure has been authorised for the financial year during which the issue is to take place by an Appropriation Act;

(b) the expenditure has been authorised in accordance with the provisions of sections 103 or 104 of this Constitution; or

(c) it is statutory expenditure."

By s.109, statutory expenditure means expenditure charged on the Consolidated Fund or on the general revenues and assets of Solomon Islands. Under s. 107(5), such expenditure includes remuneration payable to the Governor-General and other specified persons, including High Court Judges, for which Parliamentary appropriation by s.102(5) is not required. It does not include remuneration or expenses of the Customary Land Appeal Courts. Their remuneration and allowances are not within s. 102(1) (c) of the Constitution. Nor is it within para (b) of s 101(2), which is concerned with limited forms of expenditure in advance of appropriation (s. 103), and temporarily after dissolution of Parliament (s.104). That leaves only para (a) of s. 101(2), which is directed to the usual case in which the expenditure has been authorised by an Appropriation Act.

It is not apparent from any of the material before this Court whether or not there is in fact any Appropriation Act authorising expenditure out of the Consolidated Fund of money for the purpose of funding the travelling and sitting expenses of the Customary Land Appeal Court (Western) or any other such court. If there is no such Act, then the Minister for Finance is not authorised to pay it. Section 101(2) positively prohibits him from issuing his warrant to do so. If he were to pay it without the authority of such an Act, the payment would, as the Privy Council has held, be illegal and ultra vices and the money would be immediately repayable and recoverable. See Auckland Harbour Board v The King [1924] AC 318. Neither this nor any other court in the land has power to issue a mandamus to compel an unauthorised payment of that kind. It would be unconstitutional and quite beyond the jurisdiction of the High Court or of this Court. No one has so far suggested that any court has power to compel Parliament to pass an Appropriation Act authorising payment of expenditure, and such a use of judicial power would be unprecedented. It would precipitate a crisis greater than that associated with Stockdale v Hansard [1839] EngR 139; (1839) 9 A&E 1 in 19^th century England.

There can be no question of the court by mandamus ordering the Minister of Finance or anyone else to do something that is in direct contravention of the Constitution, such as making a payment without the authority of an Appropriation Act under s 102. Of course, we do not know whether or not there is a relevant Parliamentary appropriation in existence. Even if there is one, however, and it is current, I do not consider that mandamus would go to the Minister for Finance to issue his warrant under s. 101 of the Constitution. The English authorities in point are opposed to any such course. See R v Lords Commissioners of the Treasury (1872) LR 7 QB 387, and R v Secretary of State for War [1891] UKLawRpKQB 115; [1891] 2 QB 326. In the first of these cases the Court condemned in the strongest possible terms the action of the Treasury Commissioners in refusing to issue a minute authorising the payment of money which had in fact been appropriated by Parliament; but the Court nevertheless refused to mandamus them to do so. To justify issuing a mandamus, there must be a clear duty to be performed and a definite refusal to perform it. In Brown v West (1990) 169 CLR 195, 201, the High Court: of Australia accepted that appropriated moneys "usually are" expendable or not at the discretion of the crown. Mandamus, which is in theory a form of prerogative relief from the Crown, does not issue to the Crown itself or to a servant of the Crown acting in his capacity as such: R v Secretary of State for War [1891] 21 QB 326, 334. Professor de Smith considered that this common law rule was unaffected by anything in the Crown Proceedings Act 1947. See de Smith, Administrative Review (3^rd ed 1977), at 374-375; and see now, 6^th ed, at 696, note 22. The same would, as I see it, apply to the corresponding Crown Proceedings Act in Solomon Islands.

In any event, it would be quite wrong for this Court in these proceedings, and in this informal way, to decide that mandamus could or ought to issue against the Executive Government, or against the Minister for Finance without giving them or him an opportunity of being heard in opposition to such an order. The Attorney-General is not a party to these proceedings, and has, so far as we are aware, no notice of the submission put forward by Mr. Suri about issuing a mandamus to the Government. We should not pass upon the question without first hearing what he has to say about it. The Government will accordingly not be bound by anything we say on the subject of such a remedy. In these circumstances, it would accord with judicial convention not to say anything at all on the subject in case it be thought to bind some other court that might later come to hear and determine such an application after full argument.

From this I turn to s. 10(8) of the Constitution, which has also been the subject of some submissions in this appeal. Section 10(8) is in the following terms:

"(8) Any court or other adjudicating authority prescribed by law for the determination of the existence or extent of any civil right or obligation shall be established or recognised by law and shall be independent and impartial; and where proceedings for such a determination are instituted by any person before such a court or other adjudicating authority, that person shall be given a fair hearing within a reasonable time".

Speaking of this provision in the present case, Kabui J said that:

"The right to be heard in a fair manner by an independent and impartial tribunal within a reasonable time is a fundamental right of every person protected by section 10(8) of the Constitution".

I would respectfully agree with this interpretation. The question is, however, how effect is to be given to a fundamental right of this kind in the circumstances now prevailing in Solomon Islands, where there is not enough money available to finance an appeal sitting of the Customary Land Appeal Court (Western). His Lordship considered that, so interpreted, s. 10(8) helped to support the right of the respondent to that appeal to an order granting leave to the parties to provide the outlays needed to enable the court to constitute a sitting to hear Mr. Qalo's appeal.

In the Court of Appeal, however, s. 10(8) has been turned to a different purpose. There is a disposition to treat it as imposing on the State a positive or affirmative constitutional obligation to provide for the establishment of independent courts to adjudicate on claims for civil rights as well as to provide for a hearing by an independent and impartial tribunal within a reasonable time. With great respect, this is not what the sub-section says. What the first part of its provisions says is simply that "any court ... shall be established or recognised by law ...". It sets out not to require that the state should create courts (at Independence the High Court, for example, was already established), but that, if they are prescribed by law, they must be established by law; that is to say, there must be a law establishing or founding the court itself.

This requirement of s. 10(8) reflects the culmination of a long struggle going back well into English legal history. The rule, for which Sir Edward Coke was a principal contender, formed part of the struggle against the establishment of prerogative courts in England, such as the Court of High Commission and the Court of Star Chamber. In the overseas dominions, the same struggle surfaced in the opposition by the colonial assemblies of 18^th century New York and Pennsylvania to the creation otherwise than by legislation of a separate court of chancery or equity by royal governors in those provinces. The contest over this question was not finally resolved until well after American Independence, when in Re Lord Bishop of Natal (1864) 3 Moo PC 115, at 152, the Privy Council declared it to be:

".... a settled constitutional principle or rule of law, that, although the Crown may by its prerogative establish Courts to proceed according to the common law, yet it cannot create any new court to administer any other law; and it is laid down by Lord Coke in the 4^th Institute that the erection of a new Court with a new jurisdiction cannot be without an Act of Parliament."

The reference is to 4 Coke's Institutes 71. See also The Case of the Commissions of Inquiry in [1572] EngR 81; (1608) 12 Co Rep 31. In the Bishop of Natal's case it was held that, once a colony was endowed with legislative institutions of its own, it was no longer open to the Crown acting alone to establish a court with coercive jurisdiction having power to apply English ecclesiastical law (which is not common law) at the Cape of Good Hope. By similar reasoning, the New Zealand Court of Appeal in Cock v Attorney-General (1909) 28 NZLR 40 concluded that a royal commission set up by the crown without statutory authority to inquire into a criminal offence was invalid. Referring to Coke's statement, the Court considered that the executive commission was contrary to the statute 42 Edw 3, c 3, which, in confirming Magna Carta, provided that "no man be put to answer without presentment before the justices or matter of record, and by due process and original writ, according to the ancient law of the land". (The text of 42 Edw 3, c 3, is printed in full in the reasons of Priestley JA in Adler v District Court of New South Wales (1990) 19 NSWLR 317, 348). That statute is one that has exercised a profound influence on the course of American jurisprudence, notably through the Sixth and Fourteenth Amendments: see for example, Klopfer v North Carolina [1967] USSC 55; (1967) 386 US 213, 224-228.

In my opinion, s. 10(8) is designed to give constitutional effect in Solomon Islands to the rule recognised in Re Lord Bishop of Natal that a court cannot be created except by law (which in this instance can only mean legislation), and not to any broader principle to the effect that the state is bound to provide for the establishment of courts to adjudicate on claims to civil rights. No doubt it is true that the state is expected to provide courts, as it has done for example in the case of appeals to the Customary Land Appeal Courts by s 5E of the Forest Resources and Timber Utilization Act (Cap 90); but it does not follow that there is any such constitutionally or legally enforceable (as distinct from political) duty imposed on the Government to create or to continue to fund those courts as would support the issue of mandamus against it even if the difficulties occasioned by s. 101 of the Constitution could be overcome.

On the other hand, I do not doubt that s. 10(8) of the Constitution confers a fundamental right, as Kabui J says, to a hearing in a court that has been established or recognised by law, such as the Customary Land Appeal Court in this instance, in a fair manner and "within a reasonable time". Such a right is found in the United States Sixth Amendment and in the provisions of many Commonwealth countries, from which it can be traced back to chap 40 of the original Magna Carta of 1215. As incorporated in the re-issue by Henry 3 of the Great Charter in 1225 as the last sentence of cap 39, it read: "To no one will we sell, to no one will we refuse or delay right or justice".

After a through review of Magna Carta and the authorities from various parts of the common law world, the High Court of Australia concluded that there was no individual fundamental right enforceable in Australia arising from Magna Carta or at common law to be tried without unreasonable delay: Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23. That cannot be true of s 10(8) of the Constitution of Solomon Islands; and, indeed, the opposite view has been adopted in respect of similar provisions in the American Bill, of Rights: Klopfer v North Carolina [1967] USSC 55; (1967) 386 US 213, 224-225,228 (where Warren CJ ascribed it to Magna Carta); in the Canadian Charter of Rights and Freedoms: R v Cameron [1982] 6 WWR 270; and in s 20(1) of the Constitution of Jamaica in Bell v Director of Public Prosecution [1985] AC 937.

It is, however, another and different question what form of redress an aggrieved person can expect to obtain in respect of a contravention of his rights under a provision like s. 10(8). In the case of criminal proceedings, one possibility is a stay of proceedings or even perhaps an outright acquittal on a criminal charge where there has been inordinate delay. In the case of civil proceedings, relief might extend not only to a stay but conceivably to setting aside a judgment given against him if s. 10(8) has been ignored. I have not, however, come upon any authority in which it has been suggested that the Government might be ordered to provide additional funds to facilitate court sittings or to provide, for example, for the appointment of extra judges to enable those proceedings to take place.

Above all, the prohibitions in s. 101 of the Constitution remain operative; and, if it came to a conflict between those provisions and the guarantee under s. 10(8) of a trial within a reasonable time, I would not hesitate to hold the former to be the dominant provisions. As Lord Templeman, speaking for the Judicial Committee implicitly acknowledged in Bell v DPP [1985] AC 937, 953, what is a reasonable time depends on local circumstances. Expansion of legal services, his Lordship said, "necessarily depends on the financial resources available for that purpose". See also Mungroo v The Queen (1991)1 WLR 1351, 1354 (Pc: Trinidad), where it was said that delay must be considered in the prevailing economic conditions. The same is equally true of the provision of current services in the Customary Land Appeal Courts in the unhappy circumstances that now prevail in Solomon Islands under present conditions. Once again, too, I do not consider that we should be entertaining the idea of making an order for mandamus against the Government to enforce a debatable view of s. 10(8) without first hearing the Attorney-General on behalf of the Crown. If Mr. Qalo is genuine about his wish to appeal, it is he rather than the other parties who should, as against the Attorney-General, be testing the right to a mandamus to compel provision of the funds for the hearing in the Customary Land Appeal Court (Western). It is his appeal that is waiting to be heard and, if he is sincere about pursuing it, one would expect him to make the running. It is no answer to say that he lacks funds to do it.

Returning to the question in this appeal, the immediate issue is whether it is appropriate to authorise the parties to the appeal in the Customary Land Appeal Court (Western) to provide the funds needed to constitute a sitting of and facilitate hearing of the appeal by that court. I recognise the perils implicit in the proposal that the parties provide the funding in the manner proposed. I do not, however, feel the impact of those considerations quite as forcibly as do others. That the parties should provide the necessary funding to enable the court to sit and determine the appeal does not seem to me to raise a reasonable apprehension of bias in favour of a particular party or any other person who may be suspected of having furnished the whole or even the lion's share of those funds. Judges in my experience feel no sense of gratitude to Governments for paying their salaries or providing the funds that enable court sittings to take place under ordinary conditions, and they would not reasonably be suspected of harbouring such feelings towards others. They are, after all, simply being paid for the work they do. As a matter of history there was, as Kabui J pointed out, a time when the parties through the fees they paid to numerous court officers including judges funded the hearing of their litigation in the ordinary courts of the land. It was not until the end of the first quarter of the 19^th century in England, and even later in the colonies, that the bulk of judicial remuneration was derived exclusively from public funds rather than from fees paid by the litigants themselves. Until then, most court offices were a saleable commodity: see 1 Holdsworth, History of English Law, 252-264.

No one looks for a return to those days, although it is right to say that there is some indication that in many jurisdictions litigants are now being required to bear an increasing share of the direct financial costs of maintaining the ordinary courts of the land. Few lawyers would wish to accelerate that process of privatising justice; but the need for the sanction of the High Court without which the arrangement proposed here cannot safely take place may be thought to provide a sufficient brake on any tendency of Governments in the Solomon Island to turn to such methods of financing once conditions in the country return to normal.

To my mind, however, the real objection to the order made in this case resides elsewhere. It lies in the provisions of s. 100(1) of the Constitution providing that all revenues or other moneys raised or received by or for the purposes of the Government must be paid into and form one Consolidated Fund. I do not see how the funds which it is proposed should be provided under the order made on 31 January 2003 can escape characterisation or description in the terms of the words italicized. Funding a sitting of the Customary Land Appeal Court (Western) in the matter of Mr. Qalo's appeal is a purpose of Government, for which the funds when provided or paid to or through the High Court Registrar will be "received" in terms of s. 100(1). When so received, they will have to be paid not to the Customary Land Appeal Court to cover its expenses of travelling and sitting, but to the Consolidated Fund.

It is not easy to find any direct authority on the question; but the account given in China Navigation Co Ltd v Attorney-General [1932] 2 KB 197 of the disposition of receipts from the use for private purposes of royal military and naval forces tends to support the conclusion I have reached. Quite apart from that case, I think the words of s. 100(1) of the Constitution are too clear to admit of doubt. Moneys received from whatever source by the High Court Registrar for the purpose of holding the Customary Land Appeal Court sittings must be paid to the Consolidated Fund. It is a fundamental principle of constitutional law and of public sector accounting that such receipts be accounted for and paid to the Fund so as to ensure that all such moneys remain under and do not pass outside the control of Parliament. This rule cannot, I consider, be avoided by paying the money in question to the Registrar in trust for the purpose of funding the proposed Customary Land Appeal Court sitting. Either the money would, despite the trust, remain payable into the Consolidated Fund by force of s. 100(1), or the Registrar ought not to accept receipt of it on the terms of such a trust. To do so would be contrary to s. 100(1). It is no part of the Registrar's function to administer privately sponsored trusts through the medium of High Court accounts. I may add that I have considered whether money so received might not fall within either of the two exceptions contained in the parentheses in s. 100(1) of the Constitution; but, after giving those words careful attention, I am satisfied that it does not or would not answer either of those descriptions.

The result is that I am regretfully driven to conclude that the order made by Kabui J cannot stand. The appeal should be allowed with costs, and the order made on 31 January 2003 should be set aside.

Judge of Appeal