Sina v Allardyce Lumber Company Ltd [2001] SBHC 4; HC-CC 327 of 1994 (26 January 2001)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 327 of 1994

JOHN SINA AND OTHERS

ALLARDYCE LUMBER COMPANY LIMITED,

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JOHN MARK MATUPIKO AND ATTORNEY-GENERAL

High Court of Solomon Islands

Before: F.O. Kabui, J

Civil Case No. 327 of 1994

Hearing: 25^th Jan2001

Ruling: 26^th January 2001

Plaintiffs are not present

T. Kama for 1^st & 2^nd Defendants

J. Keniapisia for 3^rd Defendants

lass="Mso="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> RULING

(Kab J): This is an application by Summons in Chambers by the 1^st Defendant for the following Orders –

lass="Mso="MsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> 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

ass="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> The Plaintiffs filed a Writ of Summons together with a Statement of Claim a against the 1st Defendant and Co-Defendants on 8^th December 1994. By a Notice of Motion filed on that same date, the Plaintiffs sought restraining orders against the 1^st Defendant and Co-Defendants. Palmer, J. granted the orders sought on 21^st February 1995.

There e been further interlocutory proceedings following Palmer, mer, J.’s orders. In the meantime, the 2^nd 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 31^st August 1996 and ruled in favour of the 2^nd Defendant in the absence of the 1^st Plaintiff. The 1^st Plaintiff appealed to the Customary Land Appeal Court in the Western Province. The first hearing of the appeal was set down for 24^th 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 1^st and 2^nd 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 1^st Defendant decided to file its application by Summons asking for the orders set out therein above.

st Defendant’s Application and Conclusion

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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 3^rd 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 –

lass="Mso="MsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> “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 2^nd Defendant subjects to what to this. Before I sat to hear the 2^nd 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 2^nd 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