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Clerk to Western Customary Land Appeal Court v Attorney-General [2006] SBHC 36; HCSI-CC 070 of 2003 (25 August 2006)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 070 of 2003

CLERK TO WESTERN CUSTOMARY LAND APPEAL COURT

-V-

ATTORNEY-GENERAL
(REPRESENTING ACCOUNTANT-GENERAL)

Date of Hearing: 25 August 2006

Date of Ruling: 25 August 2006

Mr. Leonard Maina, Clerk of the Western Customary Land Appeal Court in Person.
Mr. M. Firigeni for the Attorney-General

EXTEMPORE RULING ON A QUESTION OF LOCUS STANDI WHERE THE ATTORNEY-GENERAL OBJECTS TO THE CLERK OF THE CUSTOMARY LAND APPEAL COURT SEEKING THIS COURTS DIRECTION THAT THE FINANCE DEPARTMENT FUND APPEAL COURT SITTINGS

Brown, J: This is an unfortunate case, for the Principal Magistrate/Western (who is also the Clerk of the CLAC) seeks in good faith to oblige the Department of Finance to fund particular sittings of the Customary Land Appeal Court. He has instituted proceedings as the Clerk seeking orders by way of a prerogative writ of mandamus and also seeks this court to exercise inherent power (if it be so) and direct the Financial Officers to pay for these Land Appeal Courts. The Attorney-General (who may be presumed to represent the public interest) and represents in this case, the Accountant-General, objects to the assertion by Mr. Maina that he has "standing" to bring this application. On its face it appears justifiable but the lawyer for the Attorney-General Mr. Firigeni (while protesting that the Attorney does not argue such courts should not sit) points to the fact that an order of mandamus is not available in these circumstances against the Crown so that the underlying basis for the application to disgorge moneys is as loose ground. Mr. Firigeni says that the claim must be futile even were I to grant leave. That is so for this court cannot stand in place of a public officer and direct the payment of public moneys. To presume to do so would usurp the function of the parliamentary appropriation. In any event, the administration of the CLAC has long called for a review and it is hoped that such review will result in appropriate procedures and funding to ensure the due delivery of justice in that regard. Be that as it may, the fact is the court cannot direct a public officer to pay government moneys in the fashion Mr. Maina seeks. The court may be amenable to grant a direction to act, but this court cannot order the responsible officer to pay money in this fashion.

Mr. Maina’s standing as the Clerk must also take account of the hierarchy in the judicial organisation. There does not appear to be a certificate under hand of the Chief Magistrate granting authority to Mr. Maina. Whilst this is not fatal, I must take account of the Attorney-General’s opposition to leave since, as I say, the Attorney-General also represents the public interest to protect the position of the Crown and is the First Law Officer.

It would seem then, having heard both Mr. Maina and Mr Firigeni that there is insufficient reason to find "standing" in Mr. Maina in this case. I appreciate that he comes in good faith to pursue the interest of the parties presumably awaiting hearing but the administrative and financial control of budget moneys lies with other authorities than the Clerk. I cannot presume to control the administration of the Finance department. This is more correctly a matter for the political arena.

I refuse leave. I direct that costs and disbursements of Mr. Maina if any, be paid from the Suitors fund or its equivalent. The summons is struck out ex debito justitiae.

THE COURT