Maenuu v Lamani [1992] SBHC 1; HC-LAC 002 of 1992 (1 January 1992)

HIGH COURT OF SOLOMON ISLANDS

Land Appeal 2/1992

MAENUU

class=lass="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> v

class=lass="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> LAMANan>

class=lass="MsoNormal" style="margin-top: 1; margin-bottom: 1"> Land Appeal Case No. 2 of 1992.

Solomon Islands

Before: Palmer J.

Maenuu appealed against a decision made by the Malaita Customary Land Appeal Courlomon Islands, which hich had awarded to Lamani land claimed by Maenuu.

The main ground of appeal was thatof the members of the Appeal Court, Justice Daka, was marrimarried to the sister of Jimmy Ratu, who was the chief witness for Lamani, and on several occasions Ratu was seen whispering to Justice Daka, during the inspection of the land.

This appeal was upheld by the High Court, which held that reasonable people would believe that there was a real likelihood of bias, and also that there was a reasonable appearance of bias.

Palmer J.:

<

Thellant's argument is that the actions of late Jimmy Ratu at the Kauri/Lolo tambu site site and subsequent actions at the beach showed that there was bias as Jimmy Ratu and Justice Daka were closely linked through marriage and that Jimmy Ratu was a supporter of the Respondent (this is implicit from the stated allegation of the appellant, as he described the actions of Jimmy Ratu as amounting to being a principal witness of the Respondent.)

It is not disputed that is married to late Jimmy Ratu’s sister. It is not disputed that there was a cou court case in 1978-1980 between late Jimmy Ratu’s son and the Appellant in this case, and that the principal witness for Jimmy Ratu's son (Wicki), was late Lamani Ramo. It is not disputed too that there has been intermarriage between the Respondents family and close relatives of Jimmy Ratu.

<

The link between Justice Daka and the Respondent is not a direct one. They are not related to each other. The link which the Appellant seeks to put forward as sufficient to associate Justice Daka with the Respondent is through the knot of inter marriage.

I am satisfied he has identified and established the link of closeciation sufficiently.

It needs to be pointed out that the customary ties and obligations established throug extended family syst system, through intermarriages and events (such as Land disputes) that may have occurred even 10-20 years back should not be lightly brushed aside.

Within the traditions and customary norms and practices ofle in the rural areas, what what may be considered to be insignificant or remote through time or distance or relationship by a "westernised mind" may not necessarily be so by a "traditional custom mind".

The courts in my view need to be aware of this customary setting when applying legal principles.

The ccase which was referred to by the Appellant in this appeal which occurred sometime inme in the late 1970's or early eighties between the late Jimmy Ratu's son (Wicki) and this Appellant and the fact that the late Lamani Ramo was a key witness for that other party does have some significance. On its own however it is not sufficient to establish a close tie or relationship with Justice Daka.

However, when the association is linked through the marriage of Justice Do the sister of late Jimmy immy Ratu and that the late Jimmy Ratu was seen to be in collusion with the Respondent and that there had also been intermarriages between their families, I am satisfied as I have stated that their close association and togetherness has been established.

The important distinction to point out in the facts of this ca that had the late Jimmy Ramy Ratu not been involved in the proceedings in the manner described, then I would not have found that there was ‘a real likelihood of bias’, or that there was reasonable grounds for suspecting Justice Daka would be biased. It was the actions of late Jimmy Ratu at the tabu site and at the beach that provided the grounds for the suspicion or the circumstances under which there was a real likelihood of bias.

There are 2 recognised tests bias that have been propounded.

lass="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> The first test is whether there is ‘a real likelihood of bias’ i case of Metropolitan an Properties Co. (F.C.) Ltd v Lannon & Others [1968] EWCA Civ 5; [1968] 3 All E.R. 304 at Page 310, para A Lord Denning stated-

".... in considering whether there was a real likel of bias, the court doet does not look at the mind of the justice himself or at (lie mind of the Chairman of the tribunal, or whoever it may be who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if lie was as impartial as could be nevertheless, if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand. Nevertheless these must appear to be a real likelihood of bias. Surmise or conjecture is rot enough. There must be circumstances from which a reasonable man would think it likely or probable that the justice or chairman, as the case may be, would, or did favour one side unfairly at the expense of the other. The court will not enquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence; and confidence is destroyed when right-minded people go away thinking: 'The judge was biased’.”

lass="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> The test recognised by Lord Denning is on ‘a real likelihood of bias.’ Its application is in turn turn based on what right-minded or reasonable people would think in the circumstances.

An off-shoot of the 'real likelihood of bias', test is added by Dev.J. in the case of R v R v Barnsley County Borough Licensing Justice [1960] 2 All E.R. at pages 714, 715, he states:

"W e [the court] have to satisfy ourselves that there was a real likelihood of bias, and not merely satisfy ourselves that that was the sort of impression that might reasonably get abroad. Real likelihood depends on the impression which the court gets from the circumstances in which the justices were sitting. Do they give rise to a real likelihood that the justices might be biased?"

(Parenthesis and underlining mine)

Devlin L.J.'s view is that the real likelihoot should be weighed by the court.

The second recognised test is that based on a ‘reasonable’ suspicion by rthinking people on the circumstances that there may have been bias.

In Metropolitan Properties, Ltannon (supra) Edmund Davis. L.J stated:

“Nor, in my judgment, will the public ist be served if, in the lige light of all the circumstances as they finally emerge it appears to right thinking people that there are solid grounds for suspecting that a member of the tribunal responsible for the decision may (however unconsciously) have been biased.”

At page 314, para. E he also states:

“But I cannot bring myself to hold that a decision, may properly be allowed to stand even although there is reasonable suspicion of bias on the part of one or more members of the adjudicating body.”

Professor de Smith in Judicial Review of Administrative Action, 1959, p.150 states:

"In so far as the 'real likelihood' and 'reasonable suspicion' tests are inconsistent with each other, it is submitted that the former is to be preferred..."

In Halsbury's Laws of England 4th Edition para. 89_, the learned author recognecognises the 'reasonable suspicion' test too and says after stating the 'real likelihood' test:

"Alternatively, it may be sufficientstablish that a reasonable able person acquainted with the outward appearance of the situation would have reasonable grounds for suspecting, bias."

lass="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> In applying the above tests to the facts of his present case, I am conv that there is a 'real likelihood of bias'. Having found that there is a sufficiently strong link from Justice Daka through to late Jimmy Ratu through to the Respondent by intermarriage and previous court dealings, I am satisfied that the presence of late Jimmy Ratu at the Kauri/Lolo tabu site and the way he acted and portrayed and presented himself to the court clearly amounted to an attempt to influence and affect the mind of the court, and especially through Justice Daka, his brother in-law.

I also find as a fact that his (Jimmy Ratu) actions at to beach demonstrated iliarity which to rig right-minded people would give the impression that there was a real likelihood of bias. Such actions of liberty in the particular circumstances of this case can be quite significant to the custom traditional minded reasonable persons within the locality.

Applying the second test, the action of the late Jimmy Ratu togethth his connections via Just Justice Daka and the Respondent, I am satisfied right thinking people would have a reasonable cause to suspect that there was bias.

p class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> I have gone to great length to explain the customary and traditionall setting within which the the above legal principals are to be applied. Bearing these in mind, I am satisfied a reasonable man would find that there is a real possibility of bias occurring.

A reasonable man would also fi my view that there are solid grounds, for suspecting that that a member of the Customary Land Appeal Court (M) may (however unconsciously) have been biased, (to adapt the words used by Edmund Davies L J).

Justice should not only be d but be manifestly seen to be done. (R v Sussex Just Justices, Ex p. McCartny [1923] All E.R. Reprint 233 at p.234 per Lord Hewart C.J.). Justice Daka may have indeed ignored the actions of late Jimmy Ratu and be not influenced and have acted impartially, but at the end of the day, I do not think right-thinking people can say that justice had been manifestly seen to be dove.

The decision of the CLAC (m) ought to be quashed and remitted to a differentlstituted CLAC (m) with Justice Daka and George Wate excluded.

------------------------------------------------------