Sina v Sasapezoporo Dev Co Ltd [2001] SBHC 166; HCSI-CC 091 of 1997 (23 April 2001)

CC No 091, HC

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No 091 of 1997

SINA AND OTHERS

- v -

SASAPEZOPORO DEV. CO. LTD AND OTHERS

High Court of Solomon Islands (Muria, CJ.)
Civil Case No. 091 of 1997

Hearing: 11 April 2001
Ruling: 23 April 2001

P. Lavery for Plaintiffs
A.N. Tongarutu for first and second Defendants
J. Sullivan for third defendant
No appearance for fourth defendant (who was served)
No appearance for fifth defendant

RULING

MURIA CJ: The action in this case arose out of a dispute over the logging operations of the third defendant in the area of land between Kago and Timbala River, in Vella La Vella, Western Province. The Writ was filed on 8 December 1994 and since then a number of interlocutory hearings on the matter had come before the Court, the present application being another one more where the third defendant is seeking the following orders.

1. The Consent Order made on 5 August 1999 be vacated forthwith.

2. Consequent upon the Third Defendant’s undertaking given to provide the necessary funds for the Vella La Vella Local Court to sit to hear the customary land disputes on a date to be fixed by the clerk of the court, the Third Defendant immediately pays $4,000.00 to the High Court towards the costs of the Vella La Vella Local 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 Third Defendant.

3. The Clerk to the Vella La Vella Local Court shall set down for hearing the customary land disputes within 14 days after payment of the $4,000.00 is received by the High Court Registry.

4. Upon receipt of funds from the Third Defendant in respect of the balance costs of the customary land dispute the Registrar of the High Court shall forthwith account for same to the Clerk of Vella La Vella Local Court.

5. The Third Defendant recovers the full costs paid pursuant to paragraph 1 above when funds are available for the Vella La Vella Local Court.

6. Such future or other order the court seem fit.

7. Costs be in the cause.

In the interlocutory proceedings, on 23 May 1997 this Court ordered, upon the undertaking of the plaintiffs that they would speedily prosecute their customary land ownership claims against the second defendant and upon the undertaking of the first, second and third defendants that they would not conduct any logging operations in the disputed area, the plaintiffs shall prosecute their customary land ownership claims against the second defendant before the relevant Chiefs Committee within one month from 23 May 1997. It seems now that the plaintiffs have not fulfilled that undertaking. The third defendant who has a “real interest” in the settlement of the dispute between the plaintiffs and second defendant has brought this application seeking orders which intended to bring about resolution to the litigation, particularly the customary land ownership aspect of the case. It is in this regard that the third defendant undertakes to provide funding to enable the Vella La Vella Local Court to sit to hear the customary land ownership dispute between the plaintiffs and second defendant and have it resolved.

The first defendant, through its Counsel, supports the application. The plaintiffs by their Counsel, however, oppose the application. The basis for that objection is that it raises a concern in the administration of justice to see that a Court sitting has been funded by a private source who, though not directly involved in the dispute over a customary land issue, has an interest in the outcome of that dispute. To do so, says Counsel, would give an unfavourable impression on the Court. The point raised by Counsel is a very important one and it is central to the decision on whether or not the third defendant’s application should be granted.

The basic reason for the Vella La Vella Local Court not sitting to deal with the dispute is the lack of fund from the Government. This in fact is a real problem and one that not concerns the Vella La Vella Local Court but other Local Courts throughout the Country. As a result, a good number of Local Courts sittings have not been held because of lack of Government funding. This is a sad part of the administration of justice in this country, one that comes about simply because of the failure by the Government to fulfil its legal duty and obligation of providing adequate funding to the Judiciary to enable it to function effectively. Despite repeated calls by the Judiciary to the Government to provide adequate resources including funds to the Judiciary, it seems that those calls had fallen on deaf ears. The direct consequence of such Government’s failure is the problem now experienced by the Vella La Vella Local Court and which forces the third defendant to offer assistance by way of funding the sitting of the Vella La Vella Local Court. I do not for a moment feel that the third defendant’s offer of help is anything other than a genuine offer of help to resolve the dispute which has been having a considerable effect on its survival. I will, however, decide the salient point raised in the summons and the plaintiffs’ objection based on legal principles which can be worked on to achieve justice based on the circumstances at hand.

The cases referred to by Counsel for the third defendant are helpful as those cases also took into account the same problem of lack of Government funding for the working of the Courts. Each case, however must be decided upon its own facts. I fully shared the sentiments expressed by His Lordship, Kabui J in Joe Rody Totorea & Ors -v- Tiarata Integrated Forest Development Company Limited & Anor (2000) Civ. Cas. No. 204 of 2000 (HC) (Ruling given on 7 November 20000) and also in John Sina & Others -v- Allardyce Lumber Company Limited & Ors (2001) Civ. Cas. No. 327 of 1994 (H.C) (Ruling given on 26 January 2001). In the former case, His Lordship remarked:

“Functioning of the Local Courts is a matter for the Government and not private individuals. Funding of the Local Court hearing by the disputing parties creates a perception of a private Court and questions the independence of the Local Court involved. The fact however is that the Government has no money and the Plaintiffs have a case pending in the High Court awaiting a hearing and ruling by the Malaita Local Court. Their cause is being frustrated by the Government’s inability to fund the Malaita Local Court. This is a serious matter of great concern.”

and in the latter case His Lordship, again alluding to the perennial problem facing the Courts, said:

“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 the two cases mentioned Kabui J, faced with a real practical problem before him, took the most practical action to ensure the process of administration of justice continued. This is not an easy exercise, especially when a judge is faced with the task of balancing the need to safe-guard the independence and impartiality of the judiciary on the one hand while at the same time having to ensure the rights of the parties to have access to justice is not denied.

It is a strong argument to say that a financial provision provided to the Court by one of the parties to the litigation can be construed as impacting on the salutary principles of independence and impartiality of the judiciary and thus has the appearance of undermining the integrity of our system of administration of justice. In addition, I feel such a practice may give rise to the danger that an impartial and independent Court may be viewed as being proned to partisan judicial conduct. So much so that the avoidance of the appearance of improper influence of the Court is critical if confidence in the system of the administration of justice is not to be eroded. Hence under normal circumstances to allow a party interested in the litigation before the Court to finance the sitting of the Local Court in order to determined issues, such as customary land ownership, for the purpose of settling the dispute between the parties in the litigation would be in conflict with the constitutional principles of an independent and impartial court.

In the two cases cited above, Kabui J dealt with those two cases on their own facts. It would not be right to suggest that in those two cases, his Lordship was there laying down a fixed general principle to be adopted in such a case. His Lordship was, in the circumstances of those cases, doing the best he could to strike practical solutions to the problems before him, given the competing constitutional rights presented before him.

In the situation where the Government has failed to fulfill its constitutional obligation to provide adequate funds to the Courts, a breach of the Constitution is envisaged. Recourse may be had against the Government through this Court for the enforcement of its obligations. It, however, does not resolve the problem facing the parties in a case such as the present. This, in the final analysis, comes down to choosing between the competing constitutional rights and interests of the parties. Thus weighing the constitutional protection guaranteed as to the independence and impartiality of the judiciary as an institution against the protection guaranteed by the Constitution to the individual rights, I feel I can adopt the same practical approach as Kabui J did in the two cases cited and determine this application in favour of ensuring that the individual right guaranteed by the Constitution, of access to justice must be uphold.

It is pertinent that I make the following comments before leaving this matter. It is sad to see that in a case such as this where an important constitutional issue raised received no attention by the Attorney General’s Office. The issues raised in this case, as well as in the two cases referred to, affect the Government and yet the Principal Legal adviser to the Government saw no necessity in appearing in Court to protect or at least defend the Government’s position or just appearing as amis curial on such important issues. Having been served with a copy of the Summons, as confirmed by Mr. Sullivan, with a hearing date inserted therein, there was no appearance by or on behalf of the Attorney General at the hearing. There are enough officers in the Attorney General’s Office who could attend to the matter. In many Commonwealth countries the Solicitor General undertakes civil litigation on behalf of the Government or sends a senior lawyer from the chambers to represent the Government’s interest. No explanation had been received for the non-appearance at all at the hearing on behalf of the Attorney General. The Court must have an explanation for such failure and the Registrar of High Court is directed to obtain the explanation from the fourth defendant.

As I have said the parties’ rights of access to justice should not be denied as thus in the circumstances, I feel I can exercise the Court’s discretion to the order sought.

I order accordingly.

(Sir John Muria)
CHIEF JUSTICE