Teika v Maui [1985] SBHC 13; [1985-1986] SILR 91 (2 August 1985)

1985-1986 SILR 91

IN THE HIGH COURT OF SOLOMON ISLANDS

Land Appeal Case No.2 of 1985

TEIKA

v

MAUI

High Court of Solomon Islands
(Wood C.J.)
Land Appeal Case No.2 of 1985
Re Pauta Land

1 August 1985 at Honiara
Judgment: 2 August 1985

Customary Land Appeal - procedure - objection to members - witnesses - out of court statements - full and fair hearing.

Facts:

The appellant appealed from a decision of the Central Islands Customary Land Appeal Court on the grounds that the Court did not accept his objection to one of the members, that the Court did not allow his witnesses to speak and that after the case some Court members admitted that the decision was not right. In addition, the appellant, as he was not represented, was allowed to amend his grounds to state a fourth ground that he was not permitted by the Clerk to state his case fully and fairly.

Held:

1. By s.231B(3) of the Land and Titles Act, the High Court’s power to interfere with a decision of a CLAC is strictly limited to points of law other than customary law and to failure to comply with procedure.

2. By the Clerk telling the appellant to “shut up”, the appellant was not allowed to state his case fully and fairly and justice was not seen to be done.

Accordingly, the decision was quashed and the case remitted to the Central Islands CLAC for a hearing de novo.

No cases considered:

The Appellant in person
The Respondent in person

Wood CJ: This is an appeal from a decision of the Customary Land Appeal Court Central Islands Province (“CLAC”) given on October 16, 1984 which upheld the decision of the Local Court at Tigoa West Rennell on October 29, 1981.

The appellant had three grounds of appeal against the procedure of the CLAC as follows:-

1. Before the Court I was asked if I had any dislike of the Court members. I told them I did not like E. Taki because he was one of the family of the respondent and he is also involved himself. The Court did not accept my objection.

2. The Court did not allow my witnesses to speak on my behalf.

3. After the Court case the President and one of the members came to me and apologised saying that the decision was not right and that they did not discuss the decision with the other members of the Court.

In his address to me the appellant also alleged that during the hearing the clerk to the CLAC told him to “shut up” when he started to speak and also that after he had asked the respondent only one question he was again told to “shut up” by the clerk. He was so shocked and frightened by this behaviour that he could speak no more.

The powers of this Court to interfere with a decision of the CLAC are strictly limited by s.231B(3) of the Land and Titles Act Cap. 93 which read as follows:-

“(3) Any person aggrieved by any order or decision of a customary land appeal court may within three months from the date of such order or decision, appeal therefrom to the High Court on the ground that such decision or order is erroneous in point of law (which expression for this purpose shall not include a point of customary law) or on the ground of failure to comply with any procedural requirement of any written law.”

The grounds of appeal in this case are all procedural.

The record of the CLAC proceedings reads as follows insofar as is relevant to the appellant’s first ground of appeal:-

“Appellant object to Eni Taki

Appellant sworn

Taki is related to me, but the reason I do not want him on the Court is that he is a man from this end of the island.

Taki I find no difficulty in sitting

Court (less Taki)

We prefer to have a man on the Court with local knowledge and there is no valid objection to Taki. This one is rejected and Taki will sit.”

A court is not bound to uphold a party’s objection to any member of the court sitting in a particular case. What it must do when an objection is received is to investigate the matter and decide whether or not there are grounds to disqualify the member from sitting. It is clear from the record that the Court correctly dealt with the objection made by the appellant and decided that there were no good grounds to disqualify Mr Taki. I see no reason to disturb that finding and ground 1of this Appeal fails

As far as the second ground of appeal is concerned the CLAC record is silent. There is no suggestion at all that the appellant at any stage asked leave of the Court to call any witnesses.

At this stage I would like to observe that I was impressed by the demeanour, behaviour and obvious honesty of both parties to this appeal. I think they both believe in the rightness of their case. However the onus is on the appellant to show me that the procedure in the CLAC was wrong and unless he can do so I cannot uphold his appeal. The respondent did not hear him ask for leave to call witnesses and as the record is also silent I am unable to find that he did. Ground 2 of this appeal also fails.

Ground 3 falls into the same category and in addition was a matter out of court and after the CLAC had announced its decision. There is nothing to support the appellant’s allegations on this ground although I have no reason to think it is not true. Ground 3 must therefore also fail.

However I find I cannot let the matter rest there. Although strictly speaking it was not a ground of appeal as the parties are not represented I will allow the appellant to amend his grounds of appeal to permit of a fourth ground that he was not permitted by the Clerk of the Court to present his case fully and fairly. The appellant referred to his treatment by the Clerk of the Court in telling him to “shut up” which appears to have been condoned by the Court. Not surprisingly, as the Clerk was keeping the record, there is no mention of this on the record but it has been confirmed and corroborated by the respondent who is to be commended for his honesty.

I have not looked at the merits of this case as to customary law as I am not entitled to do so in terms of s.231B (3) of the Land and Titles Act Cap. 93 in consequence it may well be that the decision of the CLAC was correct. I do not know. It is trite law that justice must not only be done but must manifestly be seen to be done. I cannot say that in this case as the appellant was told to “shut up” when he wished to speak that I can say that justice has been seen to be done.

I cannot emphasize too much that courts must always exercise extreme patience. It is not always easy to do so but it must be done. Litigants must always be allowed to speak and be heard in full. Gentle reminders as to the relevancy of what they are saying is one thing but they must never be told to “shut up”.

I would accordingly quash the decision of the CLAC in this case and remit the matter to the CLAC (Central Islands) for a hearing de novo of the appeal from the Local Court.

I make no order as to costs.