HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 50 of 2003

JACK LAGOBE AND 5 OTHERS

-V-

DAVID GINA AND ATTORNEY GENERAL

High Court of Solomon Islands
(Muria, CJ)

Date of Hearing: 24th March 2003
Date of Judgment: 25th March 2003

J Sullivan for the Applicants
J Deve for the 2nd Respondent

MURIA, CJ: The second respondent, by way of Notice of Motion, seeks to strike out the applicants’ Originating Summons in this case on the ground of non-compliance with Order 58 of the High Court (Civil Procedure) Rules. The applicants oppose the second respondent’s notice of motion.

The brief background facts of this case are that following a Timber Rights hearings by the Western Provincial Executive on 25th September 2002, the decision granting timber rights to the first applicants was issued on 4th November 2002. An appeal against the timber rights determination was lodged on 25th November 2002 by the first respondent in Customary Land Appeal Court (CLAC) Western on behalf of the Veala Reresare Landholding Group. Since then the appeal could not be heard by the CLAC due to lack of fund, and it is unlikely that the appeal would be heard unless the government makes available funds to do so. With the lack of funds from the government, the parties have discussed the possibility of jointly funding the CLAC sitting to deal with the appeal. This is reflected by one of the orders sought in the Originating Summons.

Order 58, rr. 1 and 2

Mr Deve of Counsel for the second respondent submitted that r.1 of O.58 only entitles any person claiming an interest in a deed, will or other written instrument to apply by way of Originating Summons for determination of any question of construction arising under the instrument and for declaration of the rights of such person. As to r.2 of O.58, Counsel contended that the provision only entitles a person claiming legal or equitable right under a provision of a written law to apply by way of Originating Summons for determination of question of construction of any such provision, and for declaration of the right claimed. Mr. Deve argued that in this case the applicants have not claimed any legal or equitable right nor are they relying on any provision of the law from which they claim any right. Reference was made to the case of Brownless Zaku –v- Attorney General, . It was held in that case that it is inappropriate to apply by way of Originating Summons where the orders sought are properly within the prerogative writs. In the present case, the orders sought in the applicants’ Originating Summons are:

1.	A declaration that the Applicants’ request for a speedy trial of the appeal filed on 25th November 2002 is in all respects air and reasonable;

2.	The Accountant General shall provide sufficient funds to the Western Customary Land Appeal Court to enable the Court to sit to determine the matter within 14 days;

3.	Alternatively, the parties to the Reresare timber rights appeal shall provide sufficient funds to the Western Customary Land Appeal Court to enable the court to sit to determine the matter and the parties shall be reimbursed in full immediately funds are made available by government to the Customary Land Appeal Court sittings;

4.	The Clerk to the Western Customary Land Appeal Court shall set down the hearing of the Reresare timber rights appeal within 14 days after payment of the funds.

5.	Such further or other order the Court may seem fit.

6.	The Respondents pay the Applicants costs of, and incidental to this action.

The relevant rule here is r.2 of the O.58 which requires two elements to be satisfied. As His Lordship, Palmer J, pointed out in the Zaku case, these are (1) there must be a claim of legal or equitable right; and (2) the right claimed is dependent on a question of construction of a provision of a written.. It will also be noted that O.58 vests in the Court the power to determine, on Originating Summons, questions of construction. Such questions of construction may arise under a written instrument (r.1) or under any provision of a written law (r.2) where the answers to such questions will determine the litigation between the parties. No question of construction under a written instrument or under any provision of a written law has been placed before the Court here. The cases cited by Mr Sullivan in support of this case are clearly not applicable. In Sina and Others –v- Allardyce and Others, and Sina and Others –v- Sasapezoporo Development Company Ltd and Others, both cases were commenced by Writ of Summons and the decisions of the Court referred to, were from interlocutory summons. The applicants in this case, by their Originating Summons, seek a declaration that their request for speedy trial is fair and reasonable; that the Accountant General provide sufficient funds to the CLAC (W) to sit to determine the appeal against the timber rights determination within 14 days; that, in the alternative, the parties to the timber rights appeal provide sufficient funds to the CLAC (W) to enable it to sit to determine the matter and that the parties be reimbursed by the government; and that the CLAC (W) set down the hearing of the timber rights appeal within 14 days of the payment of the funds. It would seem to the Court that the procedure by way of Originating Summons would be an inappropriate way to achieve the orders sought by the applicants in this case. One of the orders sought is an order more or less commanding the Accountant General to make available funds for the work of the Court. That can best be achieved by a prerogative writ.

The second respondent’s application is granted and accordingly the applicant’s Originating Summons is struck out.

Costs to the second respondent.

(Sir John Muria)
CHIEF JUSTICE