Manedetea v Kulagoe [1984] SBHC 9; [1984] SILR 20 (6 June 1984)

[1984] SILR 20

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 7

MANEDETEA

v

KULAGOE

High Court of Solomon Islands
(Freeman Commissioner of High Court)
Customary Land Appeal Case No.7 of 1983 Binu Land

Judgment 6th June 1984

Customary Land Appeal - bias through undue influence - test to be applied - effect of S. 231B (3) of the Land and Titles Act - S. 10(8) of the Constitution.

Facts:

The Appellant appealed against the decision of the Customary Land Appeal Court (Guadalcanal) on the ground of bias in that one of the members of the Court was seen drinking with the Respondent in a Car a few hours after the verbal decision had been given by the Court.

Held

1. an allegation of bias does not fall within the provision of S. 231B (3) of the Lands and Titles Act dealing with decisions “erroneous in point of law”

2. however it does by virtue of S.10 (8) of the Constitution requiring civil courts to be “independent and impartial” fall within the provision of S. 231 B(3) of the Act relating to “failure to comply with the procedural requirement of any written law”

3. that the test to apply on allegations of bias is “ would a reasonable bystander in ( the island in question) conclude, having observed the proceedings, that justice had been clearly done” (dicta of Daly C.J in Kamai -v- Aldo (Duruana Land No.2) CLAC No. 17 of 1982 (unreported) approved and followed.

4. On this test on the facts the decision of the court must be quashed and the case remitted to a differently constituted court to be reheard.

Cases referred to:

R. -v- Barnsley Licensing J.J. [1959] 2 All ER 635
Kamai -v- Aldo (Duruana Land No.2) C.L.A.C. 17 of 1982
R. -v- Sussex J.J. [1923] EWHC KB 1; [1924] 1 KB 256

A. H. Nori for the Appellant
G.J.B. Muria for the Respondent

Freeman Commissioner: On 13 May at 9 in the morning the Customary Land Appeal Court for Guadalcanal (‘the CLAC’) gave judgment on an appeal by Kulagoe and a cross - appeal by Manedetea. The CLAC awarded the first right over Binu land to Kulagoe. Manedetea appealed on the ground of bias through undue influence of the CLAC by Kulagoe “taking certain of the justices out for drinks and entertainment prior to the giving of the decision”. This has finally resolved itself into a complaint that Kulagoe and Laugana (one of the CLAC members) were seen together drinking beer in a car a few hours after the spoken decision was given (though it may have been before the written one came out). Strictly speaking, leave should have been sought to amend the notice of appeal to reflect this change. It would certainly have been given, since it was agreed that counsel for Kulagoe had received advance warning of it. That being so, there could be no objection to counsel for Manedetea relying on the facts I have set out. As it turned out, counsel for Kulagoe was prepared to admit them.

It is well known that S. 231B (3) of the Land and Titles Act only gives a right of appeal to this court “on the ground that (the CLAC’s) decision or order is erroneous in point of law or on the ground of failure to comply with any procedural requirement of any written law.” Counsel for Manedetea argued that bias is a point of law. This might possibly be so, but whether bias can make a decision “erroneous in point of law” is quite another matter. In my judgment it cannot: those words mean “wrong in its answer to some question of law”. That answer (unlike the answer to a question of fact) must in the appeal court’s view be either right or wrong: the way it was reached cannot change it from one to the other.

It follows that there is only a right of appeal on the sort of ground relied on in this case if it can be said to amount to “failure to comply with any procedural requirement of any written law”. The only such provision that could be relied on here was S.10 (8) of the Solomon Islands Constitution: this requires all civil courts to be “independent and impartial”. That is the starting point when considering any appeal on this ground.

The admitted facts, if left unexplained, would raise a clear inference (in the case of a lay member of the CLAC) that Laugana was in some way partial to Kulagoe. Laugana did not give oral evidence, and his affidavit was directed to the misleading particulars of appeal previously given; but counsel for Kulagoe did given an explanation for what happened. Kulagoe and Laugana were simply sharing a taxi from the court to the rest - house, where Laugana at least was going to pick up his belongings. I am content to accept this, nor did counsel for Manedetea suggest I should not. This would dispose of any argument that the CLAC was not impartial.

There remains the question of whether the CLAC was independent. Counsel for Kulagoe went on to submit that the test to be applied was that laid down in R v Barnsley Licensing JJ [1959] 2 All ER 635 (England and Wales). In other words, was there a real likelihood of bias? Counsel for Manedetea argued that this decision was dictated by the terms of the United Kingdom Licensing Act 1948 S.48. By S.48 (4) a licensing justice was disqualified where he had a financial or similar interest; by S. 48(5) “No act done by any justice disqualified by this section shall be invalid by reason only of that disqualification ...” This view of the Barnsley case is clearly right: see the majority judgment (given by Lord Parker CJ) at p. 638 F. “All the subsection does is to oust the rule of law enunciated in R. v. Rand (“that any direct pecuniary interest ... does disqualify a person from acting as a judge ...”) and to require ...“a real likelihood of bias.”

So the decision in the Barnsley case is confined to the effect of the United Kingdom Licensing Act. The test which counsel for Manedetea asks me to apply here is that stated by Daly CJ in Kamai v. Aldo (Duruana Land No.2) CLAC No. 17 of 1982 (unreported).

“... would a reasonable bystander in (the island in question) conclude, having observed these proceedings that justice had been clearly done?”

In that case, as here, it was conceded that there was no evidence of actual undue influence on the court members. So that is a decision of considerable persuasive authority on the meaning of an independent court under S. 10(8) of the Constitution. As a test of bias in the legal sense, it has a long and highly respectable history, which goes back to the celebrated saying of Lord Hewart CJ of England in R. v. Sussex JJ [1923] EWHC KB 1; [1924] 1 KB 256: -

“Justice must not, only be done but manifestly be seen to be done”.

I am satisfied it is the right test to apply in considering any appeal on this ground.

However there are a great many appeals of this kind; it is clear from past judgments of this court that the vast majority) are not inspired by genuine grievance but by the understandable reluctance of appellants to give up any chance of getting the land they are sure is theirs. (There is a genuine grievance in this case, as can be seen from the admitted facts). So the large number of appeals ought not to be taken as any reflection on the conscientious and devoted work of the vast majority of CLAC members. The reasonable local bystander would realize this. He would not see an injustice in any apparent connexion between a court member and a party (whether by kin, friendship or any other association) unless that connexion were so close, or so suspicious - looking, that it clearly pointed to some undue influence on the court.

Was there such an obvious appearance of undue influence here? Counsel for Manedetea is content to let the facts speak for themselves; counsel for Kulagoe points out that only one member of the CLAC was concerned in the incident, which happened several hours after judgment. The judgment itself was a reserved one, given (for some reason which does not appear from the record) nearly two months after the hearing. So he says that what happened could not have been thought to have any possible effect on the CLAC’s decision. This may be so; but what I have to consider is whether what happened after judgment would in the eyes of the reasonable bystander have clearly pointed to some undue influence on the CLAC before it gave that judgment. I do not for a moment think that a member and a party sharing a taxi back to the rest house would have raised this kind of suspicion. Nor do I think any reasonable suspicion would have been aroused by them being seen drinking beer together after a week or so from judgment. However, when the two things were combined only a few hours after judgment (and the rest – house is very close to the court) I am sorry to say that the reasonable bystander would have thought Laugana was celebrating Kulagoe’s victory with him.

Although only Laugana was involved, it might well have been suspected that he had used his influence on the other members to make sure of that result. I must make it quite clear that I do not find that Laugana had in fact done anything of the sort. Unless the Clerk to the CLAC takes another view, he will no doubt be prepared to give him a strong talk on the importance of behaving in a way which is above suspicion, and afterwards regard him as a member in perfectly good standing.

However, even though I do not find Laugana had used undue influence on the CLAC, what he did gave an obvious appearance of it. So I must quash the decision of the CLAC on Kulagoe’s appeal and Manedetea’s cross - appeal, and send both cases back to be tried again by a court made up of different members.