HIGH COURT OF SOLOMON ISLANDS

KASA AND ANOTHER

V

BIKU AND ANOTHER

High Court
Muria CJ

11 November 1999, 14 January 2000

Customary law - Application - Land - Customary land - Lease - Lessor acting on behalf of tribe - Accountability for proceeds - Whether fiduciary principles of trusteeship applicable - Constitution of Solomon Islands 1978, Sch 3, paras 2, 3.

In October 1997 the first defendant entered into an agreement for a lease of customary land with the Commissioner of Lands of Solomon Islands, by which the government obtained access to certain customary land in Solomon Islands in return for the payment of access fees or rental. As with all customary land in Solomon Islands the land in question was owned by a tribe and the first defendant signed the agreement as lessor representing his tribe. The plaintiffs applied for an order that the first defendant produce an account of all money he had received from the government under the agreement. The registrar of the Solomon Islands High Court made an order requiring the first defendant to account for such monies and when he failed to comply the registrar made orders for discovery and inspection of documents, failing which the first defendant would be in contempt. In so ordering, the registrar held that he was empowered to make the orders because a trust was implied by the first defendant's status as a customary landowners' representative and in his capacity as a representative of his tribe he was a trustee to receive on behalf of his people any benefit arising from the use of the tribe's land. The first defendant appealed to the High Court against the orders made by the registrar, contending that the registrar erred in holding that he was a trustee, since the equitable concept of a trust was unknown to customary law and not applicable to customary land. Under paras 2 and 3 of Sch 3 to the Constitution of Solomon Islands 1978 customary law had effect as part of the law of Solomon Islands and the principles and rules of common law and equity also had effect as part of the law of Solomon Islands but subject to not being inconsistent with customary law.

HELD: Appeal dismissed.

In providing for the application of customary law as part of the laws of Solomon Islands, the Constitution ranked it above the common law and equity. The courts therefore had to strive to give recognition to principles of customary law where necessary and where they were not inconsistent with the Constitution or Acts of Parliament. The principles of trusteeship were not applicable to the system of the holding and disposition of customary land in Solomon Islands, because in a customary land situation the land was owned by the tribe or clan and a representative of the tribe dealing with the land did not hold the legal title to the land on behalf of the tribe, nor could he deal with the land without the consent of the other members of the tribe or make an unimpeachable sale of a land to a bona fide purchaser without having to resort to the consent of the beneficiaries. Accordingly, a representative of the tribe dealing with the land could not be described as a `trustee'. However, the principles of trusteeship were relevant and applicable to the management of the proceeds of customary land, including the proceeds arising out of the sale or lease of the tribe's land, since it was in the interests of justice that the equitable principles imposing an obligation not to profit from a position of trust and a duty to account should apply to development on customary land in the modern economy of Solomon Islands. It was clearly unjust and inequitable for a tribal representative to deal with the proceeds of tribal land in the absence of any concept of accountability and it was vitally important to ensure that there was a binding code of conduct between a tribal representative and his tribe, particularly in terms of being accountable as a tribal representative in the management of the proceeds of the tribal land. Accordingly, in the changing conditions in the way customary land was used, the principles of accountability ought to form part of the customary jurisprudence to be applied in determining the relationship and status of a representative who acted on behalf of his landowning tribe in customary land matters and customary jurisprudence should therefore be modified to include the equitable principles of accountability. The first defendant was in a fiduciary position akin to that of a constructive trustee who was under obligation to account for all the money he received from the government in that capacity and the registrar was right to regard him as a trustee who was under obligation to account (see pp 136, 137, 138 - 142, post). Dicta of Lord Wilberforce in NZ Netherlands Society v Kuys [1973] 2 All ER 1222 at 1225 applied.

[Editors' note: Paragraphs 2 and 3 of Sch 3 to the Constitution of Solomon Islands 1978 are set out at p 137, post.]

Cases referred to in judgment

Akande v Akanbi (1966) 7 Nigerian Bar journal 86, Nig HC
Boardman v Phipps [1966] 3 All ER 721, [1967] 2 AC 46, UK HL
Kim Kae Jun v DPP and Comr of Police (20 December 1999, unreported), Sol Is HC
Lilo v Ghomo [1980-1981] SILR 229, Sol Is HC 9
Nimp v Rumants [1987] PNGLR 96
New Zealand Netherlands Society v Kuys [1973] 2 All ER 1222, [1973] 1 WLR 1126,
NZ PC
Trading Co (Solomons) Ltd v PKR Pacific Sales Ltd [1980-1981] SILR 172

Legislation referred to in judgment

Solomon Islands
Land and Titles Act, Part: V, Div 1
Constitution of Solomon Islands 1978, Sch 3, paras 2, 3

United Kingdom
Trustee Act 1925

Other source referred to in the judgment

Alick and Rannels Custom at the Crossroads (1995)

Appeal

The first defendant, Rex B of the Solomon Islands Hi, against the first defendant Lands of Solomon Islands requiring the First defends agreement for lease of cus the second defendant dat required the first defendant relating to the alleged pay be deemed to be in contempt. The facts are set out in the judgment.

D Hou for the plaintiffs.
F Walelia for the first defendant.
S Manetoali for the second defendant.

14 January 2000. The following judgment was delivered.

SIR JOHN MURIA CJ. This is an appeal by the first defendant against the decision of the registrar made on 16 August 1999. A number of grounds have been advanced in support of the appeal, I set out those grounds as follows:

(1) The learned registrar erred in finding that the trust implied by the first defendant's status as a customary landowners' representative is governed by the common law of England and that by reason thereof the registrar was empowered to make the orders effecting discovery, inspection and contempt of the court.

(2) The learned registrar exceeded his jurisdiction in that:

(a) the registrar was not empowered to make any order or pre-emptive directions affecting a contempt of the court or any other order or directions attracting a penal sanction;

(b) the registrar was not empowered to issue directions in this instance or, in the alternative he was not empowered to issue pre-emptive directions beyond the ambits of the court judgment dated 14 May 1999; and

(c) the registrar made orders or directions as to discovery and inspection without due regard to the summons filed by the plaintiffs on 25 June 1999 and thereby deprived the first defendant of an opportunity to adequately respond to and address the court on the issue relevant to the orders.

(3) The orders of the registrar were unjust and unreasonable in the circumstances in that:

(a) the time limits imposed by the orders did not permit the parties a sufficient time and reasonable opportunity to access relevant documents at Munda for the purpose of discovery and inspection;

(b) the time limits imposed by the orders did not permit the first defendant a sufficient time and reasonable opportunity to consider the merits of this appeal bearing in mind the time limits allowed for an appeal against a decision of the registrar of the court.

The first defendant had asked this court to set aside the registrar's decision and prayed for the following consequential orders:

(a) the plaintiffs file a proper summons seeking directions or orders affecting discovery and inspection and thereby enabling the parties a proper opportunity for full argument on the issues;

(b) any application for contempt be heard by a judge of the court having jurisdiction to make orders as to contempt of the court;

(c) questions affecting the duties and rights of the first defendant as a representative or trustee of customary owners of Ziata land be referred to the Roviana Local Court for determination;

(d) the solicitors for the parties submit for consideration by this court additional or specific issues for determination by the Roviana Local Court;

(e) an order for stay of interim orders made by this court pending any determination by the Roviana Local Court.

I shall deal with grounds of appeal in the order they were argued.

Ground 1

This ground of appeal raises a very important question which the courts in this country have not yet been able to confront from the forefront. This is the question of the application of the principle of `trust' in customary land. I think the courts in this country and particularly those manned by those of us who are knowledgeable in the law and who live under the custom that governs customary land in this country have an obligation and a duty to resolve this important question. It would be wrong to ignore it or simply brush it aside while our very own people who are affected by such a concept have been left in uncertainty as to where they stand especially in customary land matters.

Trusteeship and customary land

The majority of the land in this country is owned by customary landowners and governed by customary law. Ownership and disposition of customary land are therefore governed by customary law, although in these days of the modern Solomon Islands, customary land has had its share of the effect of modernisation. This is not surprising as economic and social developments are taking place on customary land. The cash economy concept contributes, and will continue to do so, to the new values placed on customary land in Solomon Islands. Consequently disputes, in many instances, become direct consequences of these developments and the courts have been called on to help resolve them.

One of the issues often raised in these customary land disputes is that of 'trust' or 'trustee'. The concept of trust is not known in customary law and hence, the use of such expression when describing a relationship between the parties in a customary land dispute must be carefully guarded. Not only is it that the parties have resorted to the trust concept in support of their cases at times but the courts too have the tendency, whether consciously or unconsciously, of adopting and applying the concept as applied under the received law. Blindly adopting legal and equitable concepts do not apply or cannot accommodate the fundamental principle of customary law jurisprudence.

The Constitution recognises and gives customary law a place in the legal system in Solomon Island. Paragraphs 2 and 3 of Sch 3 to the Constitution provides as follows:-

'2. (1) Subject to this paragraph. The principles and rules of the common law and equity shall have effect as part of the law of Solomon Islands, save in so far as:-

(a) they are consistent with this Constitution or any Act of Parliament;

(b) they are in applicable to or inappropriate in the circumstances of Solomon Islands from time to time; or

(c) in their application to any particular matter, they are inconsistent with customary law applying in respect of that matter.

(2) The principles and rules of the common law and equity shall so have effect notwithstanding any revision of them by any Act of Parliament of the United Kingdom which does not have effect as part of the law ofSolomon Islands.

3. (1) Subject to this paragraph, customary law shall have effect as part of the law of Solomon Islands.

(2) The preceding subparagraph, shall not apply in respect of any customary law that is, inconsistent with this Constitution or an Act of Parliament.

(3) An Act of Parliament may:

(a) provide for the proof and pleading of customary law for any purpose;

(b) regulate the manner in which or the purposes for which customary law  may be recognised; and

(c) provide for the resolution of conflicts of customary law.'

Thus the Constitution provides for the application of customary law as part of the laws of Solomon Islands and ranks it ahead of the common law and equity. The Courts must therefore strive to give recognition to the principles of customary law where necessary and where they are not inconsistent with the Constitution and an Act of Parliament.

In the present case, Mr Waleilia argued that the registrar applied the principles of law on trust as existed under the English common law and that, argued counsel, was wrong. Basically the first defendant says that he cannot be regarded as trustee for his people under the English law concept of a trust. In support of his contention, counsel relied in the cautionary view expressed by Daly CJ in Lilo v Ghomo [1980-1981] SILR 229 where at pages 233-234 the Chief Justice said:

'Before I turn to these grounds I must say something generally about the difficulties which have arisen. They arise, in my view, from what is always a problem in dealing with customary land cases in the modern Solomon Islands. That problem is how can one express customary concepts in the English language? The temptation which we all face, and to which we sometimes give in, is to express these concepts in a similar manner to the nearest equivalent concept in the law received by Solomon Islands from elsewhere, that is the rules of common law and equity. The result is sometimes perfectly satisfactory in that the received legal concepts and Solomon Islands custom concept interact to give the expressions a new meaning which is apt to Solomon Islands context. 

It is thus with use of word "trustees" which has arisen in this case. This word is used in Solomon Islands in the customary land context in a different way to its use in relation to the principles of equity elsewhere. However other concepts of received law have not developed a customary law meaning and the use of expressions which denotes those concepts can produce difficulties of some complexity. This is particularly so when the custom concepts which they are said to represent are themselves undergoing modification to fit them to the requirements of a changing Solomon Islands which is now concerned not only with the use of land for subsistence farming but with the sale of timber on land and enclosure of land for cattle and so on. 

For this reason it is, to my mind, a great development of the system of dealing with the customary land cases that we now have a Customary Land Appeal Court. That court, through the experience of the majority of its members in custom concepts and the legal experience of its magistrate member, has the ability to participate in the welding of customary concepts and the English language in a way which will not overlay the custom with inadequately modified expressions which in time got results in the custom way to inappropriate and possibly undesirable concepts of received land law.'

I take it that the caution expressed by Daly CJ in that case concerned the application under received law in a customary situation, more so in the use of English language to express a customary concept. I respectfully agree with the concern entirely expressed by Daly CJ.

In the present case the appellant argued that he cannot be regarded as a trustee for his people in the matter concerning Ziata land. If he is not a trustee, then what is he? I have already stated that the concept of trust is not known to customary law. However, even if the concept is unknown in customary law, can it be applied in a customary law situation, such as in customary land matters? My view is that the concept of trust can apply in such areas provided that it is so applied not as a substitute but to accommodate. The principles of custom already in existence on subject matter. I say 'not as a substitute' since to apply it as such, say in relation to customary land, would really be displacing the customary law governing the land concerned. So much so that in a customary land situation where land is owned by the tribe or clan, a representative of the land owning tribe is not a trustee. For he cannot hold the ownership title to the land on behalf of his tribe, unlike in general law where the trustee who holds land on behalf of his tribe holds the legal title to the land and the beneficiaries are those for whom he holds the land on trust. Again, a representative of a customary landowning tribe cannot be regarded as a trustee as such because he cannot deal with the customary land without the consent of the other members of the tribe. If he does so, his action can be impeached by the other members of the tribe, whereas a trustee under the received law can resort to the consent of the beneficiaries. In Nimp v Rumants [1987] PNGLR 96, which was a case dealing with clan representatives who held shares in a property company to manage traditional lands, the court had to make it clear that the sale of the company was effectively the sale of clan lands and as it took place without the consent of the clan members, the sale was impeachable. The position of a clan or tribe representatives in Solomon Islands is in a similar position when dealing with customary land.

Whilst the concept of trust is unknown in customary law, and a representative of the customary landowning tribe is not a trustee as such, the concept can nevertheless be modified and be applied in the modem Solomon Islands. In strict traditional dealings in customary land, such as concerning the question of ownership or disposition of the land, the general law concept of trust cannot apply. However, we have now seen the trend of developments that are taking place on customary land in Solomon Islands and one such development is that with which we are now dealing in the present case.

The modification of the concept of trust might not be needed in the days when very little development took place on customary land. Today, there is, in my view, a need for the modification of the concept in order to apply it to certain dealings in customary land and to accommodate the customary jurisprudence applicable in such matter. Thus, while the general law concept of trust is not applicable to customary land, its principles, in my judgment, can rightly be applied in regulating the proceeds of sale of, or dealings in, customary land. This is of vital importance so as to ensure that there is a binding code of conduct between the tribal representative and his tribe particularly in terms of being accountable as a tribal representative in the management of the proceeds of the tribal land. It would clearly be unjust and inequitable to allow the tribal representative to deal with the proceeds of tribal land in the absence of any concept of accountability.

While the tribal representative (sometimes regarded as the tribal elder or `the big man') can argue that under customary law he cannot be called to account for his dealings with the tribal land and that the only remedy the other members of the tribe have against him is to call for his removal as the representative of the tribe, the court must have the power to order the tribal representative to account in the interest of justice. There is no limit in the kind of cases where the court can exercise its equitable jurisdiction to give a helping hand, as was pointed out in the Nigerian case of Akande v Akanbi [1966] Nigerian Bar Journal 86 referred to in `The Future of Customary Law in Papua New Guinea' in Custom at the Crossroads (1995, ed Jonathan Alick and Jackson Rannels, Faculty of Law, UPNG). In Akande v Akanbi the plaintiff sued the head of the family for an account of the proceeds of the sale of family property. The head of the family, relying on customary law, argued that in custom he could not be made to account for such proceeds, being the head of the family, and that the only remedy available to the younger members of the family was to remove him from his position as head of the family. It was held that the court had power to make any order which was necessary to do justice; and if, in administering those principles, the court found itself in a position that it should order an account, it could do so effectively, notwithstanding the fact that the cause of action was in customary law, for equity imposed no limitation in the type of cases in which it will give a helping hand. To this effect, Somolu J had this to say ((1966) 7 Nigerian Bar Journal 86 at 90):

'…it is far better to impose restrictions on the heads of families by making them liable to account, even strict account, than to lay them open to temptation by unnecessary laxity in the running of family affairs which inevitably follows non - liability in that respect. To hold otherwise will be outrageous to our present sense of justice and will open the floodgate to fraud, prodigality, indifference or negligence in all its forms and cause untold hardships on several families especially the younger members. I can see no harm in making the accountability of trustees of properties held under customary law as strict as that of other types of trustees known to our law ...'

So while the trusteeship principles may not be applicable to system of the holding and disposition of customary land, it is very much an applicable concept, though in a limited way, to the management of the proceeds of the land, including the proceeds arising out of the sale or lease of the tribe's customary land. This trusteeship concept which to my mind stems, in the main, from equity rather than the common law concept of trust, must clearly be of vital importance in the way customary land is dealt with in today's money economy. It is essential in ensuring accountability on the part of those who take charge of family or tribal properties. If anything, it is my firm view that in today's changing conditions in the way customary land is used, the principles of accountability must be made to form part of the customary jurisprudence to be applied in determining the relationship and status of a representative who acts on behalf of his landowning tribe in customary land matters.

In the present case, the first defendant does not hold the land in question as a trustee for his tribe as he is only the representative of his landowning tribe and cannot deal with the said land without the consent of the other members of his tribe. The resultant 'Agreement For Lease of Customary Land' signed on 30 October 1997 was entered into between the first defendant and two others, as lessors representing their tribes and the Commissioner of Lands. As signatories to the agreement, these representatives received money from the government as an `access fee' to the land. The representatives will also be the ones who will be receiving any premium and rental over the land. Be they access fees, premium or rental, those are benefits paid or to be paid by the government through the representatives to their tribes for the use of the land. It must therefore follow that the first defendant, as co - owner of the land with the other members of his tribe, received benefits for the use of the land. He cannot use those benefits for himself but they must be used for the benefit of all those entitled to it, namely the members of the landowning tribe. He is in a fiduciary position where he is under obligation to account for all the money he received in that capacity. His position is therefore akin to that of a constructive trustee, in which case the principles of such trusteeship can properly be applied in regulating the proceeds arising out of the use of the customary land in question. In this regard it is worth noting the words of Lord Wilberforce in NZ Netherlands Society v Kuys [1973] 2 All ER 1222 at 1225, where the learned law Lord said:

'The obligation not to profit from a position of trust, or, as it is sometimes relevant to put it, not to allow a conflict to arise between duty and interest, is one of strictness. The strength, and indeed the severity, of the rule has recently been emphasised by the House of Lords (Boardman v Phipps [1966] 3 All ER 721, [1967] 2 AC 46). It retains its vigour in all jurisdictions where the principles of equity are applied. Naturally it has different applications in different contexts. It applies, in principle, whether the case is one of a trust, express or implied, of partnership, of directorship of a limited company, of principal and agent, or master and servant, but the precise scope of it must be moulded according to the nature of the relationship.'

As clearly pointed out by Lord Wilberforce, the general principles of equity can be applied in all jurisdictions but their precise scope of application differs depending on the circumstances of each case. The obligation not to profit from a position of trust together with the duty to account are, in my judgment, of vital importance to Solomon Islands in responding to the modem conditions under which customary land is being subjected to in our today's money economy. The absence of those obligations would be, as the Chief Justice of Ghana said in Re Hotonu (1889) 1 Journal of African Society 87, 'unjust and inequitable'.

Mr Waleilia's contention is that the trust concept under the English common law is inappropriate to Solomon Islands circumstances and as such it cannot be applied here. I accept that in so far as it applies to ownership of customary land and, as I have already said, the first defendant cannot be regarded as a trustee holding land in trust for his tribe. It would be wrong in customary law if he were to be regarded as such. In this regard, my respectful view on the Trustee Act 1925 of the United Kingdom is that, even if it is an Act of the United Kingdom Parliament of general application and as such applies in Solomon Islands, it cannot be applied to customary land in terms of ownership and disposition of such land. Therefore the practice of representative customary landowners entering into agreements with investors as trustees for the tribes is inappropriate and one that leads to confusion and unnecessary litigation in this area.

But the absence of customary law regulating the position of a trustee does not, in my view, necessarily exclude other principles of law and equity from applying to a situation where a representative in custom is placed in a position akin to that of a trustee. As Akande v Akanbi pointed out earlier, equity imposes no limitation in the type of cases in which it will give a helping hand. The principles I have discussed earlier in this judgment apply in this case.

The learned Registrar in this case regarded the first defendant as a trustee in his capacity as a representative of his tribe and the person who is determined by the acquisition officer to receive the benefit from the use of the tribe's land on behalf of his people. I do not think the registrar was there equating the first defendant as a trustee in terms of holding land for his tribe, for that cannot be right. Rather, the Registrar was clearly concerned with the status of the first defendant as a representative who was acquiring a benefit from the use of his tribe's land and who, therefore, is under duty to account for all the benefit received in that capacity. In that regard the Registrar was right to regard him as a trustee who is in a fiduciary position and who is under obligation to account to his people for the money be had received from the Government.

Again, I accept the argument put forward on behalf of the first defendant by Mr Waleilia that a trust cannot be readily implied under the Land and Titles Act. It must be created by express provisions of the Act. The authority for that proposition in this jurisdiction is Trading Company (Solomons) Ltd v PKR Pacific Sales Ltd [1980-1981] SILR 172. But in that case the court was dealing with a different situation altogether than that with which we are concerned in the present case. That case was concerned with registered land which was purchased by the defendant from Gubbay (New Hebrides). The defendant had the property registered in its name but the plaintiff claimed that the defendant held the properly on trust for it on the basis of a claim of prior rights to the land. The court, however, dismissed the plaintiff's claim.

The Land and Titles Act is a legislation dealing with registered land and as such expressions used therein must be given meanings to accord with the purpose of the legislation rather than to reflect concepts used elsewhere in law and equity: see Trading Co (Solomons) Ltd v PKR Pacific Sales Ltd. In this regard when one turns to the provisions of Division 1 of Part V of the Land Titles Act, one is disposed to find that there is no mention of 'trust' or 'trustee' in those provisions. The expression used in those provisions is 'duly authorised representative'. This is in accord with the purpose of those provisions and the nature of the land affected. It would not be right to regard a representative of the landowning tribe as a trustee for the reasons which I have already mentioned earlier in this judgment. There is a world of difference between a `representative' of customary landowners and a `trustee' in terms of holding titles to land. I have already discussed this also earlier in this judgment and I need not repeat it here. Suffice to say that the two concepts are totally different when one is considering the question of ownership and disposition of land.

Thus the defendant is correct in saying that he is not a trustee for the purpose of holding the land in his name on behalf of his tribe. However, as he is the representative of his tribe, he received and will continue to receive the benefits on behalf of his tribe for the tribe's land. This is where accountability for his actions is of paramount importance.

This ground complains of the Registrar's finding that a trust is implied by virtue of the first defendant's status as a customary landowner representative. I have already dealt extensively with this point. For the reasons that I have already stated, I find the first defendant was not a trustee holding land on trust for his tribe but a representative who holds money derived from the use of the land on behalf of his tribe. It is in that latter capacity that he must be regarded as a trustee who must account to his tribe for his action.

The court ordered the first defendant to produce an account of all the money he had received. He had not done so, in which case I do not see any justification in law for him to complain of the registrar's action in ordering discovery and inspection of documents relating to the money he had received. The learned registrar was no more than taking steps to ensure the first defendant complied with the order of the court. Ground 1 of the appeal fails.

Ground 2

The first defendant's complaint under this ground is that the registrar exceeded his jurisdiction when he. issued the orders or directions on 16 August 1999. As I have already said earlier, the registrar's actions were no more than taking steps to ensure that the order of this court must be complied with by the first defendant. That order made on 14 May 1999 required the first defendant to account for the money he received from the government in respect of Ziata Land. He had not yet complied with it by August 1999 and when he came before the registrar he was reminded of it and it was pointed out to him that he was in contempt for not complying with the order of the court.

Strictly, the Registrar should have the matter of contempt bought before the judge who would deal with it. But out of a sense of justice and giving the first defendant another chance to come to his senses, the Registrar ordered discovery and inspection of documents relating to the payments so far received. I think the first defendant must regard himself as fortunate to be given such a chance. 

Then there is a complaint that the registrar was wrong to order discovery and inspection without regard to the summons filed by the plaintiffs on 25 June 1999. That summons was dealt with by the registrar on 4 August 1999 at which hearing all the parties were represented. The registrar, after hearing all the parties, ordered the first defendant to produce an account of all the monies he received from the government by August 1999 and if no account was produced, to file an affidavit showing reasons for not being able to produce the account. The matter was adjourned to 16 August 1999. When the matter came before the registrar again on 16 August 1999, the parties were represented and after hearing counsel for the plaintiffs and the first defendant, the registrar ordered discovery of documents within two days, inspection two days thereafter and ordered that if the first defendant refused to comply with order of the court made on 14 May 1999 he would be in contempt of court and should be arrested and brought before the Chief justice to be dealt with for his contempt. The registrar gave the first defendant ten days to 26 August 1999 to comply with that part of his order. The matter was further adjourned to 1. October 1999. On 17 August 1999 the first defendant applied to stay the order of the registrar. On 18 August 1999 Kabui J ordered the stay of the whole of the order of the registrar made on 16 August 1999 pending this appeal.

It would appear to this court that the complaint that the registrar did not have regard to the summons filed by the plaintiffs on 25 June 1999 and that the registrar deprived the first defendant of an opportunity adequately to respond to the issues relevant to the orders is without merit. The first defendant had been given all the opportunities he needed to do what the court ordered him to do. Yet he is prepared to seize every opportunity to buy time in order to evade complying with the orders of the court. This cannot be accepted and as I pointed out in Kim Kae Jun v DPP and Comr of Police (20 December 1999, unreported), those who seek justice, they too must do justice. The court must take a firm step to ensure that its orders are not flouted. In the circumstances of this case, ground 2 must also fail.

Ground 3

This ground of complaint is that the registrar's orders are unjust and unreasonable especially in view of the time limits required for the discovery and inspection. The first defendant contended that he was not given 'sufficient time' and 'reasonable opportunity' to have access to relevant documents. The kindest thing that can be said about the first defendant in this regard is that he seems to have a less than perfect understanding of what `sufficient time' and `reasonable opportunity' are to him, having been ordered by the court on 14 May 1999, that is, three months before the registrar made the order complained of in this case. The first defendant had known about the order to account since 14 May 1999 and he cannot now complain if he has been given one day or one hour to produce the documents showing the monies he had received. I see no merit in this point and ground 3 must equally fail.

Conclusion and order

All the grounds relied on by the first defendant fail and consequently the appeal is dismissed. All the orders sought by the first defendant are accordingly refused. The order made by Kabui J on 18 August 1999 whereby the registrar's order of 16 August 1999 was stayed is discharged.

The registrar's order of 16 August 1999 is confirmed but in the interests of justice I am prepared to exercise the court's discretion to vary that order in view of the court vacation, Christmas and New Year periods. Accordingly the order is varied as follows:

(1) Discovery of documents by parties be done within 21 days from today.

(2) Inspection 7 days thereafter.

(3) The first defendant shall within 21 days from today call a meeting of the members of his tribe and his distribution committee to resolve the manner of distribution of the moneys (whether purchase money, rent or access fees) to the tribe by the government in respect of Ziata land. A copy of the minutes of that meeting or evidence thereof be filed in court within 7 days after that meeting.

(4) Paragraph 4 of the order of 16 August 1999 is deleted.

(5) The matter be fixed by the registrar within 14 days after the total period stated in paragraph 3 above.

The registrar's order of 16 August 1999 is varied accordingly.

There will be a penalty notice to attach to this order, that is to say, that failure to comply with this order will result in the first defendant being liable to contempt proceedings.