Tauri'i v Kerehote [1985] SBHC 19; [1985-1986] SILR 80 (1 July 1985)

1985-1986 SILR 80

IN THE HIGH COURT OF SOLOMON ISLANDS

Customary Land Appeal Case No. 4 of 1985.

TAURI’I

v

KEREHOTE

High Court of Solomon Islands
(Wood C.J.)
Customary Land Appeal Case No.4 of 1985
Re Mwanewawa Land

25 June 1985 at Honiara
Judgment 1 July 1985

Customary Land Appeal - bias - waiver of objection

Facts:

The appellant appealed from a decision of the Makira/Ulawa Customary Land Appeal Court on the ground of bias in that one of the justices sitting as a court member had an interest in the case as his mother and uncle were parties to a previous case over the same land in 1960 which had been decided in favour of the appellant. The appellant, however, failed to object to that justice sitting when invited to do so by the Court.

Held:

1. Although the justice may have been interested in the case and as such was not impartial in accordance with s.10(8) of the Constitution, the appellant, who was aware of the disqualification, waived his right to object by remaining silent then asked if he had any objections to any members of the Court. Having done so, he cannot later raise the objection after taking the chance of a decision in his favour. (Wakefield Local Board of Health v. West Riding and Grimsby Railway Company (1865 - 66) 1 LRQB 81 per Cockburn C.J. at p. 36 approved and followed).

Accordingly, the appeal was dismissed with costs.

2. Obiter - As there were five justices and a clerk sitting, the partiality of one of them was unlikely to have affected the result.

Cases considered

Metropolitan Properties Co. Ltd. v. Lannon and Others [1968] EWCA Civ 5; (1968) 3 All E.R. 304
Wakefield Local Board of Health v. West Riding and Grimsby Railway Company (1865 - 66) 1 LRQB 81
Kevisi v. Talasasa and Another (1983) SILR 87

Also considered:

de Smith, Judicial Review of Administrative Action (3rd edition)

John Muria for the Appellant
Kenneth Brown for the Respondent

Wood CJ: This is an appeal from the decision of the Makira/ Ulawa Customary Land Appeal Court (hereinafter referred to as “CLAC”) which in a judgment given on November 16, 1984 reversed the decision of the Arosi II Local Court given on November 25, 1983 that the land belonged to the appellant. The CLAC held that the land belonged to the respondent and his line.

The appellant’s grounds of appeal are as follows:-

1. The CLAC erred in law in hearing the case with a member of the Court namely HENRY AWAIHAKA who has an interest in the matter sitting as a court member hearing the case.

2. Consequently the decision of the said CLAC was made pursuant to a breach of the rules of natural justice.

There is therefore only one ground of appeal, as ground 2 naturally flows from ground 1, and that is one of bias.

The appellant Daniel Tauri’i gave evidence to the effect that there had been a previous case over this same land in 1960 which had been decided in his favour in the Local Court against Atobora and Kekerei. Atobora is the mother of Henry Awaihaka. Henry Awaihaka was a working adult in 1960 and would have known all about the case heard then. He would also have been directly affected as local custom in Makira follows the maternal line. On November 12, 1984 the President of the CLAC sat at Ubuna village with four justices and clerk/magistrate Rex Faukona. One of the justices was Henry Awaihaka. The appellant in his evidence stated that as he left home that day he thought that Henry Awaihaka would be a member of the CLAC and that he would object to him sitting. In the event when the occasion arose he forgot to do so. The appellant concedes the accuracy of the Court record which states:-

“President introduces members of the CLAC including the clerk to parties and invited them to make objections.

Appellant – No objections

Respondent - No objections”.

These facts are not in issue and the sole question before the Court is whether or not the appellant waived his rights when he failed to object to Henry Awaihaka sitting as a member of the CLAC. On behalf of the appellant Mr Muria relied on s.10(8) of the Constitution which provides as follows:-

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

His submission was that as one of the members of the CLAC clearly had an interest in Mwanewawa land that the CLAC hearing was not impartial and contravened the provisions of s.10(8) of the Constitution.

If the appellant had objected to the inclusion of Mr Awaihaka on the CLAC and he had been excluded that would have been an end of the matter. If the CLAC had decided to hear the appeal with Mr Awaihaka and rejected the appellant’s objection there is no doubt at all that on the facts before me I would have had to quash the CLAC’s judgment as a breach of natural justice following the dicta of Lord Denning MR at page 309 in the case of Metropolitan Properties Co. Ltd v. Lannon and Others [1968] EWCA Civ 5; (1968) 3 All E.R. 304.

In the English case of Wakefield Local Board of Health v. West Riding and Grimsby Railway Company (1865 - 66) 1 LRQB 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 abandoned 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 CJ said at page 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.”

Professor de Smith in his book Judicial Review of Administrative Action (3rd Edition) p. 242 cites the Wakefield case as authority for the proposition that:-

“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 approbating the proceedings ..... A party may waive his objections to adjudication by persons subject to these disqualifications. [interest or bias] Objection is generally deemed to have been waived if the party or his legal representative knew of the disqualification and acquiesced in the proceedings by failing to take objection at the earliest practicable opportunity.”

In Kevisi v. Talasasa and Another (1983) SILR 87 Daly CJ following the Wakefield case ruled that where the impartiality arose from the act of the party seeking to rely upon it and it might be inequitable to allow him to do so; and the objection of interest was waived before the CLAC the right to rely on it later was forfeited.

Mr Brown has clearly put the case before me when he said that it would be bizarre if the law were such that the appellant could remain silent before the CLAC knowing that he had the right to object to a member of it so that if he won the case he would still remain silent whereas if he lost he would have an indisputable ground of appeal. It would indeed be a case of “Heads I win tails you lose”.

I must however in fairness to the appellant say that there is no suggestion here that he deliberately refrained from making his objection to the CLAC. Far from it. But he did waive his right to object when he remained silent when he was asked if he had any objections to any member of the court. Having done so he cannot now come to this Court and say that the court was not impartial. I would also add that as there were five justices and a clerk sitting the partiality of one of them is unlikely to have affected the result.

This appeal is accordingly dismissed with costs.