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Clerk to Western Customary Land Appeal Court v Attorney-General [2003] SBHC 106; HC-CC 070 of 2003 (6 June 2003)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 070 of 2003

CLERK TO WESTERN CLAC

–V-

ATTORNEY-GENERAL

HIGH COURT OF SOLOMON ISLANDS
Muria, C.J., at Gizo

Date of Hearing: 2^nd June 2003
Date of Judgment: 6^th June 2003

L. Maina, the Plaintiff in person
No appearance for the Defendant

Muria CJ: Following leave granted by this Court on 15^th April 2003, the applicant now seeks an order that the parties to the CLAC Cases Nos. 1 and 2 of 2001 and No. 13 of 2002 be allowed to provide funds to the CLAc in order to enable it to hear and determine the said cases. Leave had also been granted to bring proceedings seeking an order of mandamus against the Government to provide funds to the Courts in order for the Courts to hear and determine 76 cases in CLAC and 89 cases in the Local Courts in the Western Province.

At the end of the hearing, the Court granted the orders sought in paragraphs 1(a)(ii);(b), (c) and (d) of the Amended Summons filed on 2^nd June 2003 but in the terms stipulated by the Court. I said that the Court would provide reasons for granting the orders. That I now do so briefly.

The brief background to this case is that since 1991, a huge backlog of cases have been pending before the Magistrate Local Court and CLAC in the Western Province. So far there are 76 cases pending before the CLAC and 89 in the Local Courts. These cases relates to customary land, most of which arose out of logging activities in the Western Province. The Courts have been unable to deal with these cases due to the Government’s inability to provide funds to enable the Courts to sit and hear the cases. In the meantime the Magistrate Court Office in Gizo, have been continuously bombarded with letters and telephone calls from parties to the cases, enquiring about their cases. Consequently, there has been mounting pressure for the Courts to deal with these cases.

There can be no doubt that the Government has the obligation and the duty to provide funds for the Courts. It is a constitutional obligation. As such, the failure to do so by the Government is a breach of that constitutional obligation. I am very mindful, however, that in the present circumstances of the country’s economy the chances of the Government meeting its constitutional obligation to fund the Courts are very slim. The result is that, as we now have, the parties to the cases now pending before the CLAC and Local Courts, have been deprived of their rights to have their cases dealt with by the Courts. What should one do in such a case? An order of mandamus issued against the Government would be the ideal step to take. But an empty order is not worth the paper on which it is written.

The solution, and should be a temporary one, is one of a practical measure as stated by Kabui J. in Joe Rody Totorea & Others –v- Tiarata Integrated Forest Development Limited & Anor^[1]. In Sina & Others^[3], as that stated by Kabui J in the practical measure spoken of by His Lordship, Mr Justice Kabui, was to allow the parties to share the costs of funding the sitting of the Court so that their cases could be dealt with. Like His Lordship Mr Justice Kabui, I am not blind to the risk that people may form an adverse perception of the Court’s independence and impartiality being compromised. It is in these circumstances, that the Court, reluctantly, adopts the practical solution suggested by Kabui J.

In the circumstances therefore I grant the orders sought in paragraphs 1(a)(ii), (b), (c) and (d) but in the terms proposed by the Court.

Order accordingly.

Sir John B. Muria
Chief Justice

^[1] Joe Rody Totorea & Others –v- Tiarata Integrated Forest Development Limited & Anor² (High Court) cc 327 of 1994.
^[3] Sina & Others (High Court) cc 091/1997.