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Qalo v Qaloboe [2003] SBCA 14; CA-CAC 004 of 2003 (3 September 2003)

COURT OF APPEAL OF SOLOMON ISLANDS

Civil Appeal No 4 of 2003

(On Appeal from High Court Civil Case No 283 of 2002)
Appeal from Judgment of the High Court of Solomon Islands

JACKSON QALO
(Appellant)

SHAKESPEAR QALOBOE AND OTHERS
(Respondent)

Date of Hearing: 3rd September 2003

The Court: Lord Slynn of Hadley P, McPherson JA, and Ward JA

Advocates: Mr G Suri for the appellant
Mr P Tegavota for the respondents

JUDGMENT

This appeal raises a difficult and a delicate question. It comes about because of the Government's failure to arrange a Customary Land Appeal Court (Western) to hear an appeal in a dispute over the granting of timber rights, a failure by the Government said to be due to the serious and well known financial problems of Solomon Islands and its Government in recent years.

Mr Jimmy Pita in 2002 applied for approval to negotion [sic] the acquisition of timber rights over land at Polo village, North West Choiseul. This application it appears was made on behalf of Reko Enterprises Company under section 7 of the Forest Resources and Timber Utilisation Act (Cap.40). The land was shown on the map attached to the application and part of the land is referred to as "Kovarae". The other part of the land is referred to as "Repaga".

On the 19th of July 2002 the Choiseul Province Executive Committee issued a determination that Chief Shakespear Qaloboe and his trustees representing the Polo Tribe were the right persons having ownership over Kovarae customary land and thus to have the power to grant timber rights on land shown on the map attached.

On the same day the Choiseul Provincial Executive Committee issued a certificate of customary ownership in respect of land held by the Repaga Land Holding Group in which the right to grant timber rights was said to belong to Chief Midobatu and others.

On the 8th August 2002 Mr Jackson Qalo on behalf of Polo Tribe gave notice of appeal against the decision in respect of the Kovarae Customary land on the basis that that land is part of Polo land and that Mr Qalo's tribe, the Polo Tribe, was "the true tribe to grant timber rights in Polo land". He paid the requisite appeal fee of $350.00.

He sent a list of appeal points to support the contention that the land was Polo land referring to previous disputes in the High Court in 1911 and 1998. These are matters of substance to be dealt with on the appeal as to the grant of rights. Mr Qalo also contended that the successful applicant had been a President of Choiseul Area Council and that its spokesman was a member of CLAC. The committee had simply rubber stamped an earlier decision in 1995 instead of making an independent determination and they had been paid fees for the hearing which he contended were highly suspicious. He also alleged that the applicants had interfered with the respondent's witnesses.

On 20th January 2003 his lawyer Mr Philip Tegavota was told that the cost of hearing before the CLAC would be around $10,000.00 and this would cover the Justices' sittings and subsistence allowances, accommodation and miscellaneous expenses.

There was no sign that a hearing by the CLAC would be fixed and the Respondent to the appeal (Chief Shakespear Qaloboe and others) wanted to have the issue determine since otherwise it could not get on and exercise the logging rights which had been held by the Committee to belong to them. They accordingly applied by notice of motion dated 18th November 2002 for an order:

"1. That the applicants and or the respondent or any of them be allowed to pay the costs involved in the sitting of the Customary Land Appeal Court (W) to hear and determine an appeal filed by the respondent against the determination of the Choiseul Provincial Executive concerning Kovarae land.

2. In the alternative, a third party be allowed to pay such costs of sitting of the (W) CLAC on behalf of the applicants and the respondent to determine such an appeal.

3. Such order as the Court sees fit".

Mr Qalo opposed this application. He said in addition in an affidavit sworn on 27th January 2003 that this dispute could be dealt with by Batava Chiefs' Committee so that a hearing by the CLAC was not urgent, and that in any event the applicants in the case were not qualified to make the appeal. He challenged the veracity of Mr Mark Matai who had sworn on affidavit on behalf of the applicants:

Mr Justice Kabui granted the respondents' application ordering that "any of the parties to the appeal or a third party to that matter may provide funds through the office of the High Court Registrar to meet the cost of the sitting and hearing of the respondents' appeal in the Customary Land Appeal Court, Western". He gave the applicants leave to apply for further orders.

The learned Judge gave a detailed and graphic description of the serious difficulties which had been faced by all involved in the judicial system and indeed by the Police in Solomon Islands. The fact that there was no evidence to prove that the Government had no money to fulfil its obligations under the Constitution was not for him a material omission. "The Government is broke and cannot meet its obligations both locally and overseas". I am therefore prepared to take judicial notice of the fact that Government is unable to fund the sitting of the Customary Land Appeal Court in the Western Province". This Court is well aware of the difficulties to which the Judge referred and indeed to our own knowledge he could have included this Court as one of the Courts whose proceedings had been prevented by the lack of necessary funding. The difficulties to which the learned Judge referred are a serious matter to be taken into account when considering whether this motion should be granted.

The Court is not prepared to rule out this notice of motion on the subsidiary points taken by the respondent to the motion on the basis e.g. that Mr Matai's affidavit is not properly endorsed or that it is not shown that he is prepared to and can put up the necessary funds for the hearings. The lack of endorsement can be corrected and even perhaps in an appropriate case left aside. The lack of evidence as to the provision of funds can be corrected if in principle it is appropriate for a third party or the parties to the proceedings to provide the funds.

There are more profound issues. In the first place is there jurisdiction to make an order of this kind at all? In the second place if there is jurisdiction should it be exercised in this case and on what if any terms?

The respondents to the appeal rely on section 10(8) and section 84(1) of the Constitution and on the inherent jurisdiction of the Court. Section 10(8) provides:

"...Any court or other adjudicating authority prescribed bylaw for the determination of the existence or extent of any civil right or obligation shall be established or recognized 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..."

There is no doubt that it is the obligation of the state under that section to provide for the establishment of independent courts to adjudicate on claims for civil rights and to provide for a hearing by an independent and impartial tribunal within a reasonable time. There is clearly an obligation to set up a Customary Land Appeal Court to hear and determine applications like the one that is made here under section 10 of the Act (Cap. 40).

Mr Justice Kabui accepted that he had jurisdiction to hear the application and to make an order based under section 10(8) of the Constitution and on the inherent jurisdiction.

His decision has been strongly attacked by the appellant. His principle argument at the hearing for this Court was that the appropriate way to deal with the problem was for the applicant to apply for a mandamus against the appropriate Government Minister requiring him to provide the necessary facilities for the CLAC. On that basis he argues that the Court has no jurisdiction. This Court takes the view and that an alleged failure by the Government to comply with section 10(8) of the Constitution can be reviewed by the High Court and on appeal by this Court. That flows as a matter of interpretation of the Constitution and under the inherent jurisdiction. It is also we consider open to the Court in appropriate circumstance to order steps to be taken to ensure that a failure to provide the necessary jurisdiction is remedied.

That however, is only the beginning of the problem.

We have only to deal with the position of the Customary Land Appeal Court but it cannot be overlooked as the Judge indicated that similar proposals might be made in respect of the regular civil and criminal courts. We do not decide this but it seems to us as a matter of first impression that such a course could never be relevant to public prosecutions and should not be introduced into private prosecutions. We have not heard convincing arguments which support the idea that such a course could properly be introduced into the ordinary civil courts. These must be provided by the State.

In so far as it concerns the CLAC the appellant and respondent in that Court are entitled to have their appeal dealt with and dealt with in reasonable time. In this case the respondent is entirely justified in saying I want to enforce my logging rights which had been recognized by the Executive Committee. "The appellant in this Court would be entitled to say and could be expected to say. I want to get on with this appeal and establish my logging rights". It is the duty of the State to provide the facility. If the State does not or cannot provide the money for the Court should one or all of the parties or a third party be entitled by Court Order to provide the funds to set up a hearing?

In respect of the CLAC we understand the Judge's attitude to the problem and his decision to take judicial notice of the fact that funds are not available. But caution has to be exercised. It is just as easy and perhaps just as mistaken to say that the Government has no money for a particular project as it to assume that there is no limit to Government funds. And so this question should not in principle even arise unless there is sufficient evidence that funds are not available for the particular project.

If it is claimed that private funds should be made available a number of factors arise. In the first place we consider that there is a risk of a perception of bias, even of bias, if one party puts up more funds than the other even if they fully agree to do so. There is a similar risk if a third party with perhaps an indirect or a direct interest in the result puts up the funds. We think that this risk remains even if the funds are paid to the Registrar of the High Court since especially in smaller communities rumours, even correct information, can spread quickly. We also recognize that it may be impossible, perhaps undesirable, that efforts should be made to preserve anonymity; they may be doomed to failure and even excite suspicion. Openness and a full disclosure even to the public as to what has happened may not improve matters.

It is unthinkable that this course should in any event be adopted without the full and free consent of all parties to, or affected by the proceedings, so that in many cases (as in the present case) there should be no order of the Court approving the private financing of the proceedings. It would be wrong to compel a party to take part in such a proceeding against his will. Even to seek full agreement when contributions are unequal might be difficult since the implications of what is proposed might not always be understood. The allegations made in this case of lying and of interference show how relationships can deteriorate.

Accordingly we have come to the conclusion that the responsibility even in respect of the CLAC must remain with the State. The appellant has contended that the appropriate way to deal with the problem where proceedings are not set up by the State is for the applicant to seek an order of mandamus. Even this has its problems. This is a discretionary remedy. It would require the Court to be satisfied that money is not available or that there is a compelling reason why the CLAC cannot sit. The most probable true answer of government is not that we do not have one dollar any where but that we do not have funds for his project or to carry out all our obligations. It is clear to us that it is not for the Court on such an application to indicate whether priority should be given to the provision of hospitals or schools or roads or courts - either to Parliament when it makes the appropriations or to the government when using the appropriations. It may thus be only in the rare case that the court can make an order confident that no funds are properly available for this project.

Nevertheless, it is clear that the Court has jurisdiction to hear such an application and it may (we do not for a moment say it will) receive evidence which raises doubts as to the Government's reply and which will justify criticism by the court, even severe criticism about what has been done or not done. That is what an independent and impartial Court is there for. Despite its limitation the route of applying for mandamus is in our view a solution preferable to that of authorizing "self-help" or "outside help" in the provision of judicial services. Moreover, we would wish do nothing to encourage the government to seek to avoid its responsibilities even in this area by encouraging or approving privately financed legal systems.

Accordingly, and having considered a restricted form of order and appreciated all the points made by the learned Judge, we allow the appeal. It will be for the applicant to decide whether to apply for an order of mandamus. We anticipate however that the Minister in the light of the delay caused to one party to exercise rights which he has been held to have and to the other who seeks to challenge those rights, together with the loss to the country's economy by the "freezing" of those rights will take fully into account the need to provide for these appeal hearings to proceed. The optimism and encouragement which is evident in Solomon Islands in recent days may make it easier for him to do so. A failure in the provision of legal services, not least when economic factors are involved, is obviously capable of having serious effect on the State.

Lord Slynn of Hadley (President)
McPherson JA
Ward J.A.