Kevisi v Talasasa [1983] SBHC 37; [1983] SILR 87 (15 April 1983)

[1983] SILR 87

IN THE HIGH COURT OF SOLOMON ISLANDS

Customary Land Appeal Case No.7 of 1982

KEVISI

v

TALASASA AND ANOTHER

In the High Court of Solomon Islands
(Daly CJ)
Customary Land Appeal Case No.7, of 1 982

15th April 1983

Procedure - trial - bias alleged - waived at hearing cannot be relied upon later - constitution s- 10(8) Land and Titles Act s. 231 B.

Facts:

In a customary land case in the Local Court judgment was given in favour of the Appellant. In their appeal to the Customary Land Appeal Court (“the C.L.A.C”) the Respondents alleged that (the President of the Local Court had been “bribed” by an agreement with the Appellant which permitted the President to cut copra in the land of the Appellants. At the hearing before the C.L.A.C. the Respondents agreed not to ask for a retrial even if the bribery point was upheld and asked for the C.L.A.C. to dispose the whole appeal. The C.L.A.C. decided in favour of the Respondents both substantively on appeal and in relation to the bribery point. They allowed the appeal and did not remit for retrial. The Appellant appealed to the High Court on the basis that the C.L.A.C. should have so remitted.

Held:

Section 10(8) of the Constitution required an impartial tribunal. If the C.L.A.C. found on a properly maintained ground of appeal that the local court was not an impartial tribunal then there was no “decision” within the meaning of section 231B Land and Titles Act and the case must go back for rehearing (Wauo -v- Mafuara (C.L.A.C. Case 3/81) followed.)

However this case has two distinctions from that situation:

(a) The impartiality arose from the act of the party seeking to rely upon it and it might be inequitable to allow them to do so; and

(b) the objection of interest was waived before the C.L.A.C. and the right to rely upon it later was forfeited (Wakefield Local Board of Health -v- West Riding and Grimsby Railway Co. (1865-1866) 1 L.R. Q.B. 81 applied)

Therefore the Appellants could no longer rely upon the matter.
Appeal dismissed.

Other cases considered:

Dilangaimae -v- Kwaisulia (C.L.A.C. No. 16/1981)
R. -v- Williams Exp. Phillips [1913] UKLawRpKQB 223; (1914) 1 K.B. 608

For Appellants: A. Nori
For Respondents: K. Brown

Daly CJ: This case involves an interesting and important point of law on an appeal from the Customary Land Appeal Court (Western (“the CLAC”)). In late 1979 the Roviana Local Court heard a case brought by the present Appellant John KEVESI concerning Kindu land. The Defendants were Milton TALASASA and Jacob ZINEHITE. As Mr Milton TALASASA has died, Mr John Wesley TALASASA has replaced him as Respondent in this Court. It is not necessary for me to set out the nature of the issues involved in the case save to say that it was a hotly contested case concerning customary land in North West New Georgia.

On 20th November 1979 the Local Court which consisted of Renisi EGE, President, Casper KAMA and Clement HIVEA Justices gave judgment. The decision was that the land in question belonged to the Kindu people and that the Respondents should get permission from the Appellant, SIGA (a witness for the Appellant side) and the people of Kindu before developing the land.

Milton TALASASA and Jacob ZINEHITE appealed to the Customary Land Appeal Court. In their appeal points dated 15th February 1980 there is contained the following point: -

“X Act of Bribery

1. The President of the Roviana Local Court, Mr Renisi Ege, has been bribed with money by Kevisi and Siga. The hearing of Civil Case No. 15/79 was completed on Thursday 15 November 1979. On Monday 19 November 1979 P. Siga called a general meeting of the Kindu people and he told them that from then on nobody in Kindu was allowed to cut copra at Banga Plantation (a plantation given back to them by the United Church), for it had been agreed between himself and Kevisi that Mr Ege and his family would cut copra there. The court decision in favour of Kevisi, Siga and their line was made and signed by the Court President Mr Renisi Ege and the Court Clerk on 20 November 1979.”

Paragraphs 2 and 3 of Point X go on to elaborate on these basic facts.

The CLAC commenced to hear the case on 6th January 1982 at Gizo. Immediately Point X became the focus of attention. The records reads:

“President refers to appeal point X. “Act of Bribery” and enquires if the Appellant would want a retrial if we uphold this point, or whether he would wish the CLAC to decide the whole appeal at this hearing.

(the point being, if we are going to retrial there is no point in hearing the whole appeal and then going to retrial)

Appellant Talasasa will agree for this Court to decide the question of a retrial, Zinehite wishes this Court to determine the whole appeal notwithstanding appeal point X. Talasasa then agrees for CLAC to decide the appeal and not to ask for a retrial if appeal point X is upheld.

(though of course it remains a matter for the discretion of this Court, but at least we should hear the whole appeal and then decide on the issue of a retrial in the context of the whole appeal).”

The matter was again discussed with the Respondents during the hearing when Point X was dealt with in evidence record reads: -

“(Reminded of the statement they made at the opening in reply to the Court, that if CLAC find this a good point they would normally send the case for rehearing, but the Appellants leave this to CLAC to decide and they are happy to dispose of the appeal)”

The case for the Appellant on this appeal point was that although there were such dealing with the local court president they were innocent dealings without any thought of the court proceedings and should not be taken as affecting the case.

In their judgment the CLAC found that in substance the facts alleged in point X were made out. They went on: -

“We do not find this to have been a bribe. We believe the Respondent’s version of the events, and that there was no personal financial gain to the President. However, the proper test to apply is not whether a bribe in fact was made, but whether it might appear to a reasonable observer of these events, that something out of the ordinary was happening which might unfairly affect the outcome of the case, or even be seen as a reward to the President (or his church) for the decision.

We think that such an observer would think the outcome of the case might have been prejudiced by these events. This was a quite striking act of generosity at the very time the decision was being made, beyond the normal business relations which may, and often do, properly exist between litigants and lay justices in a community.

We raised the matter of a re-hearing, with the Appellant at the opening of the Appeal, and at appeal point 10. The Appellants indicated that they wished us to hear the whole appeal and left it to us to decide whether a re-hearing was appropriate, but would be content if we decided the whole appeal, and that is what we have decided to do, bearing in mind the length of time since the case arose, and the very full way the appeal has been argued over two weeks, when it seems that every possible argument has been aired.

In deciding the whole appeal the CLAC reversed the decision of the local court and found in favour of the present Respondents. It is this decision to decide the whole appeal which is the subject of challenge in this court. It is said by the Appellant that the only course open to the CLAC in law, having reached the decision that there was an appearance of bias in relation to the proceedings of the local court, was to set aside the findings of the local court and remit the case for retrial by a local court differently constituted.

For the Respondents it is said first that the terms of sections 231 and 231A of the Land and Titles Act (“the Act”) permit the course adopted by the CLAC. Second, even if that is not so, the breach of natural justice was waived by the Respondents and therefore the CLAC could proceed to hear the appeal on its merits.

There is no doubt that, in view of the findings of the CLAC, this was a case in which it could be said that there been a breach of a rule of natural justice. The rule in question is set out succinctly in section 10(8) of the Constitution which provides: -

“(8) Any court ... prescribed by law for the determination of the existence or extent of any civil right ... shall be ... impartial...”

The test, as the CLAC said, is not whether there has in fact been partiality but whether there would be an appearance of partiality to a reasonable and fair-minded observer. They concluded there would be such an appearance in this case and that is a conclusion from which I do not disassociate myself.

I turn to the first submission for the Respondents, that is, that whatever the effect of the finding of the appearance of partiality on the proceedings of the Local Court, it was to the CLAC to give a full rehearing to the matter and determine it both as a court of appeal and a court of first instance.

Reliance is placed on the terms of section 231(1) and 231A (4) of the Act. The relevant part of section 231 (1) reads: -

“A Local Court shall have exclusive jurisdiction in all matters and proceedings of a civil nature affecting or arising in connection with customary land,”

Section 231A deals with the establishment, constitution and powers of customary land appeal court subsection (4) provides: -

“A customary land appeal court shall have and may exercise all the powers of a local court.”

Reading these two provisions together, counsel submits one is left with the position that a customary land appeal court may, on appeal, exercise the powers of a local court to hear a case at first instance. However section 231B (1) and (2) provides: -

“(1) Any person aggrieved by any order or decision of a local court given in exercise of its jurisdiction under section 231 may, within three months from the date of such order or decision, appeal therefrom to the customary land appeal court having jurisdiction.

(2) On any appeal to it under subsection (1), a customary land appeal court may substitute for the decision appealed against, such decision and may make such order, as to it may seem just.”

From those subsections it may be seen that there must be an order or decision of the Local Court and the CLAC may substitute its own decision for “the decision appealed against”, If the CLAC, however, find on a maintained ground of appeal that the local court has never properly exercised its jurisdiction then, in effect, they are saying there was no decision. That being so they cannot “substitute” their own decision the “decision appealed against” and must return the case to the Local Court for a proper hearing and decision. Although not founded on an analysis of the words of the statute, this was the same conclusion as this court reached in, Wauo and Anor v. Mafuara and Anor (CLAC Case No. 3/81 judgment given 15th May1981) In that case there was incontrovertible evidence that the President of the Local Court had a personal interest in the case before it. Despite this the CLAC decided “to proceed itself as a court of “First Instance” and a Court of Appeal, joining the two functions during the course of the hearing”. Of this course, I said at page 5: -

“The effect of hearing a case as a Court of First Instance and Appeal is to deprive a party of fair and impartial hearing before a Local Court. It is clear that cannot be a correct result.”

This case was followed by the Court in Dilangaimae v. Kwaisulia (CLAC No. 16/1981 judgment given 3rd Sept 1981). In both those cases the appellants stoutly maintained in all three courts their objection to the partiality said to be present in the local court. Those cases are authority for the proposition that if a party successfully maintains that a breach of the impartiality rule has occurred in the local court, then it is incumbent on the CLAC to remit the case for rehearing to the local court before a court differently constituted.

However there are important distinction between those cases and the present case. First, in the present case it is the party which was instrumental, albeit innocently, in creating the appearance of partiality and in whose favour, if at all, that partiality would have operated which is now seeking in the final court of appeal to rely upon the matter to its own advantage. Second, it is said that in this case, there was waiver in the court below of the breach of the impartiality rule by the party entitled to rely upon it, that is the Respondents, and therefore it was open to the CLAC to hear and dispose of the case whatever view they took of the point and therefore, the point cannot be revived by anyone in this court.

The second point is the subject of previous judicial consideration in other countries, although not with uniformity of result. The first distinction is, as far as I am aware, one that has not been considered by courts.

The point taken as to waiver is sometimes discussed on the basis of whether breach of the impartiality rule makes the proceedings of the tribunal concerned void or voidable. If void, there is no decision at all of the tribunal and the matter must go back for rehearing; if voidable then the point can be waived. In the English case of Wakefield Local Board of Health v. West Riding and Grimsby Railway Company (1865-1866) 1 L.R.Q.B. 81 a justice of the peace had an interest in proceedings before him. At the hearing objection was taken to him by a party but that objection was subsequently abandon and the justice heard and determined the matter. On appeal the same party sought to argue that, by virtue of the interest, the court below had no jurisdiction and that jurisdiction could not be conferred by consent. Cockburn C.J. said (p. 86): -

“I am therefore of the opinion that, although (the justice may have been interested so as to incapacitate him from acting, yet, as the parties were aware of the objection and waived it, he had jurisdiction to make the order; and nothing is clearer than that having waived the objection of interest, and taking the chance of a decision in their favour, the parties cannot otherwise raise it.”

It should be noted that this expression of principle is in relation to a case dealt with on appeal and that, in terms, it refers to a prohibition on “the parties” raising the matter on appeal once earlier waived. I take this to defer to both parties.

The late Professor de Smith in the 3rd Edition of his book Judicial Review of Administrative Action (I do not have the 4th Edition available to me) at page 242 when dealing with “Effect of Decision by Tribunal where Disqualifying Interest or Bias is Present” writes: -

“However, there is also no doubt that a party otherwise entitled to impugn a decision for breach of the rule may forfeit his right to do so by his own conduct in approbrating the proceedings.”

The case above referred to is cited in support.

On the other hand, in an article dealing with the statutory exclusion of judicial review in Australian, Canadian and New Zealand Law in Public Law Autumn 1982 Professor G.L. Peiris states: -

“Despite lingering doubts, the consensus of judicial opinion in the Commonwealth is that breach of natural justice vitiates jurisdiction. This applies ... to infraction of the rule against bias.”

I have not had the advantage of considering the Canadian and Australian authorities cited in support of this conclusion. However I note that it is a conclusion reached on the basis of cases where the courts are considering legislation seeking to take the considerable step of excluding judicial review of decisions. Nor is consideration given in the article to approbation of the proceedings with full knowledge of the breach; no doubt because in general the courts in considering applications for judicial review are given a discretion to entertain the application whether or not the original decision is said to be void. In such a case the conduct of the party applying is clearly a relevant factor in the exercise of the discretion (See R v. Williams exp Phillips (1914) 1 K.B.608).

In my judgment, this court should apply the words of Cockburn C.J. in the present situation when dealing with an appeal against an earlier decision. Appeals are necessarily under the control of the parties to the extent that it is a party who raises specific points upon which he seeks to impugn the earlier decision. If a party waives an appeal point which he has brought to the court that might otherwise be decided in his favour, a court must be entitled to proceed on that basis. Despite suggestions to the contrary, it is clear to my mind that the Respondents waived Point X in the CLAC and that they sought to raise it in this court, they should have, perverted from so doing. To adapt the words of Cockburn CJ be they took the chance of a decision in their favour by waiving the question of partiality and could not raise it subsequently.

Does it make any difference that the party now seeking to raise the matter is not the party which waived the point in the court below? I think not. Such is the reading I give to words of Cockburn C.J. The present Appellant was aware of point and argued that it did not affect the case. Further hold otherwise would be to enable a person who knowingly take advantage of a partial decision in a Local Court to remain silent in the CLAC but, on finding the decision goes against him in that court to complain in the High Court of something he has himself done and seek to have the proceedings commence again. This would be an extraordinary result. It would be a case in which a court would, no doubt, want to give close consideration to the equitable maxim that he who seeks a remedy from a court must come with clean hands. However as in this case there was in my judgment, a clear waiver of the point the only persons in whose favour it could be argued then it is not open to either party to rely upon it in this court.

As no other matters are raised on this appeal, the appeal is dismissed and the decision of the CLAC confirmed. The Respondents are entitled to costs in this court to be taxed if not agreed.