R v Customary Land Appeal Court (Western) ex parte Pitakaka [1985] SBHC 27; [1985-1986] SILR 69 (5 June 1985)

1985-1986 SILR 69

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 64 of 1984

R

v

CUSTOMARY LAND APPEAL COURT (WESTERN) ex parte SIMI PITAKAKA

High Court of Solomon Islands
(Wood C.J.)
Civil Case No. 64 of 1984

29 May 1985 at Honiara
Judgment 5 June 1985

Certiorari - s.84 (1) of Constitution - supervisory jurisdiction of High Court - definition of “fraud” - effects of fraud

Facts:

The applicant applied for an order of certiorari to quash a decision of the Customary Land Appeal Court (Western) on the ground that the respondents had obtained that decision by fraud. The respondents had submitted to the CLAC that they wished to call a new witness not called in Local Court because at the title of the Local Court hearing the new witness had to take his father to the hospital and the father later died so the son now had to tell what his father would have told had he still been alive. The CLAC accepted the submission and allowed the witness to be called. In fact, the father was alive. The respondents did not deny that be was alive, but alleged that the Court record was in error in that they had really told the Court the father had retired, not that he had died.

Held:

1. S.84(1) of the Constitution which provides that the High Court shall have jurisdiction to supervise any proceedings before any lower courts and may make such orders as may be appropriate to ensure that justice is administered gives the High Court the power to hear and determine this matter.

2. The respondent informed the Court that the father of the witness was dead knowing that that statement was false. As a result the witness was allowed to give evidence and perjure himself as he also stated that his father was dead.

3. Accordingly, the statements of the respondent and the witness fell within the definition of “fraud”, that is, a false representation made knowingly or without belief in its truth, or recklessly, careless whether it be true or false, and once fraud is proved it vitiates all transactions whatsoever. (Barclay’s Bank Ltd v. Cole (1966) 3 All E.R. 948 followed for definition of “fraud”). (Lazarus Estates Ltd v. Beasley (1956) 1 All E.R. 341 followed for effects of fraud).

4. The High Court may quash a decision of a lower court or tribunal whenever such tribunal has been materially mislead by fraudulent assertions.

Accordingly, the decision of the CLAC (Eastern) was quashed and a rehearing of the appeal from the Local Court before a differently constituted CLAC was ordered.

5. Obiter - It would have been highly illegal had the clerk to the CLAC altered the Court record in response to the respondent’s request 6 - 7 months after the hearing of the case.

Cases considered:

Lazarus Estates Ltd v. Beasley (1956) 1 All E.R. 341
Barclay’s Bank Ltd v Cole (1966)

Kenneth Brown in support
Andrew Nori in opposition

Wood CJ: This is an application for an order of certiorari to quash the decision of the Customary Land Appeal Court (Western) dated September 16, 1983 relating to Vunenakibi Land Choiseul. Leave to apply was granted on October 15, 1984 by Sir John White ACJ.

The grounds for the relief sought were that the decision of the Customary Land Appeal Court (Western) was made in favour of Phillip Pitavato and Franklin Pitakaka (hereinafter referred to as the respondents) as a result of fraud in the Customary Land Appeal Court by the respondents.

The relevant part of page 1 of the Customary Land Appeal Court record of the proceedings, commencing on September 13, 1983, reads as follows:-

“Reasons as to why the new witness was not called in Local Court in South Choiseul for Appellant.

The new witness was not called during Local Court hearing because the witness’ father was very sick at that time and so he had to take his father to Gizo Hospital and was admitted to Gizo Hospital and later died. The son was not called at that time because although his father was living that time he would not be able to talk. Now that his father is dead we would like to call him as our new witness to tell us what his father shall have told the court had he been alive.”

The Customary Land Appeal Court accepted this submission and allowed the witness to be called. In fact the father of the witnesses Wesley Pitasopa was alive and is still alive to this day. His name is Abednigo Pitasopa. The respondents do not dispute this fact but allege that the extract of the proceedings in the Customary Land Appeal Court is not correct and that when Franklin Pitakaka addressed the Court he told the Court that Abednigo had “retired” not that he had died.

This matter first came before this Court by way of an appeal filed on December 16, 1983 which was withdrawn on March 27, 1984 when it came on for hearing before Daly C.J. However on April 2, 1984 the applicant applied for an order from this Court to set aside the decision of the Customary Land Appeal Court on the ground of fraud. An order was refused by Mr Registrar Freeman on April 12, 1984 but an application for leave to apply by way of Notice of Motion for an order of certiorari was filed on August 10, 1984 which as stated above was granted on October 15, 1984.

S.84 (1) of the Constitution provides as follows:-

“The High Court shall have jurisdiction to supervise any Civil or Criminal proceedings before any subordinate court and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of ensuring that justice is administered by any such Court.”

This section gives this Court the power to hear and determine the matter before it.

On March 29, 1984 Franklin Pitakaka wrote a letter to the Magistrate at Gizo who was then Mr David Firisua who had sat as Clerk to the Customary Land Appeal Court on September 13, 1983. In that letter he stated, inter alia, the following:-

“My application to call Wesley Pitasopa a new witness give evidence under the capacity he assigned on as stated Manager or Supervisor taking over from his father after the retirement of his father. In your record it says “later Pitisopa died” this is not correct, I believed it must be your Administration error, either mistyped or maybe your misprint. According to my evidence and Wesley’s evidence it should read “later Pitisopa retired.” Wesley Pitasopa takes over from his father after the retirement of his father. Wesley’s father Pitasopa still alive until today but he is old and retired from the Church.”

In a reply to this letter dated April 18, 1984 Mr Firisua stated:-

“The error incurred in the CLAC proceedings was a misprint and alterations have been made on the record. It is an administrative error so the need for further consultation with the President etc. is not essential.”

I do not think I need say very much about Mr Firisua’s letter but in fact no alteration was made to the original record or the typed copies. Any such alteration would in the circumstances have been highly irregular and illegal. The Court was functus officio and had been for 6 or 7 months. I doubt if Mr Firisua could have been in a position to remember even what was said on September 13, 1983 other than from the Court record itself. It is perhaps surprising that neither Counsel called him to give evidence on this aspect of the case. Mr Franklin Pitakaka was not an impressive witness. He was unable to answer Mr Brown’s questions satisfactorily when cross-examined as to why he only asked Mr Firisua to amend the words “later died” when the record also refers to “father is dead” and “had he been alive” in the same passage. It is also strange that he should write to the Magistrate on March 29, 1984 two days after the applicant had withdrawn his appeal because he had become aware of the fraud and only four days before further proceedings were commenced based on the allegation of fraud. Mr Franklin Pitakaka’s evidence is further weakened by the evidence of Mr Wesley Pitisopa to be found at page 10 of the typed record where he ways, “My father died and then I was chosen to replace my father.”

I am accordingly satisfied that the record is correct and I am not persuaded otherwise by the evidence of Mr Franklin Pitakaka or the letter of Mr Firisua. I am satisfied that on September 13, 1983 Mr Franklin Pitakaka addressed the Customary Land Appeal Court at Gizo and informed them that Abednigo Pitasopa was dead well knowing this was not true and that as a result the Court allowed the witness Wesley Pitasopa to give evidence on his behalf.

I am not able to say what effect, if any, this had on the decision of the Customary Land Appeal Court but the fact remains that Franklin Pitakaka made a statement to the Court which he knew to be false and that his witness Wesley Pitasopa perjured himself in his evidence in which he also said his father was dead.

In Lazarus Estates Ltd v. Beasley [1956] 1 All E.R. 341 Denning LJ said at p. 345:-

“No Court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a Court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The Court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved it vitiates judgments, contracts and all transactions whatsoever.”

“Fraud” has been defined by Lord Denning in the case of Barclays Bank Ltd v. Cole [1966] 3 All E.R. 948 as follows:-

““Fraud” in ordinary speech means the using of false representations to obtain an unjust advantage: see the definition in the Shorter Oxford English Dictionary. Likewise in law “fraud” is proved when it is shown that a false representation has been made knowingly or without belief in its truth, or recklessly, careless whether it be true or false.”

It is quite obvious that the statements made by Franklin Pitakaka and Wesley Pitasopa fall with Lord Denning’s definition of fraud. In my judgment it is open to this Court to quash the decision of a lower court or tribunal whenever such court or tribunal has been materially misled by fraudulent assertions. I am satisfied that is the case in the present instance. An order to quash the decision of the Customary Land Appeal Court (Western) dated September 16, 1983 will issue and the appeal from the Local Court is to be re-heard before a differently constituted Customary Land Appeal Court.