Unufana'adalo v Walesua [1996] SBHC 61; HCSI-LAC 4 of 1995 (1 November 1996)

HIGH COURT OF SOLOMON ISLANDS

LAND APPEAL CASE No. 4 of 1995

JOHN UNUFANA'ADALO

-v-

RENALDO WALESUA
AND ALPHIUS SAMOSIA

Before: Muria. C.J.
Hearing: 24 April 1996 at Auki
Judgement: 1 November 1996

Counsel: P. Lavery for Appellant;
B. Titiulu for Respondents

MURIA CJ: This is an appeal against the decision of the Customary Land Appeal Court (Malaita) on Bina/Talifu Land. The grounds of appeal relied on by the appellant are:

(a) There was a real likelihood and/or reasonable suspicion of bias due to President 'of CLAC(M) talking with one of the Justices, Michael Daka after hearing.

(b) There was real likelihood of bias implied toward the Respondent since the Respondent had submitted their costs to the Court before the announcement of the decision.

True, as a general principle of law, justice must not only be done but must be seen to be done. As such where there is a real likelihood of bias on the part of the court, justice cannot really be said to be done or seen to be done. A decision of the Court in such situation must surely fall.

The test here must be one of a "real likelihood of bias" according to a right minded person. This must be something more than a mere suspicion of bias on the part of the Court. Mere suspicion will not suffice. This test has been applied in Talasasa -v- Paia and Another (1980-1981) SILR 93 where it is stated at page 106 after referring to the allegation of bias because the respondent in that case was the President of the Western Customary Land Appeal Court:

"As far as the former is concerned the locus classicus is Metropolitan Properties -v- Lennon & Others [1968] EWCA Civ 5; [1968] 3 All ER 304 in which Lord Denning said at page 310:

"The Court looks at the impression which would be given to other people. Even if he 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, there must appear to be a real likelihood of bias. Surmise or conjecture is not enough."

Thus I must apply this test to the present case. As far as the general point of a person who is a president or member of a Customary Land Appeal Court being a party before that Court is concerned (when taking, of course, no part as president or member), I do not consider that a right-thinking person in Solomon Islands would consider there was a "real likelihood of bias."

It will be observed that this Court in that case made it clear that a right-thinking person would not consider there was a real likelihood of bias where a president or a member of a Customary Land Appeal Court took no part as such in a particular case before that Court.

In the present case, the complaint of the appellant is that the President of the Customary Land Appeal Court, Joseph Kaia, who did not sit with the Court at the hearing of the case was seen talking to one of the justices after hearing outside the Court.

The President did not sit with the Court following objection from the appellant on the basis that at the Local Court, he, Joseph Kaia, was a witness for the respondents. The President accepted the objection and disqualified himself from sitting with the Court at the hearing of the appeal. Yet, despite that uncontradicted action taken by the President, the appellant insisted that there was still a real likelihood of bias on the part of the Customary Land Appeal Court.

The implication contained in the appellant's complaint in this appeal is that even though the President did not sit with the Court, his conversation outside the Court house with one of the Justices who sat with the Court after the hearing influenced the decision of the Court in favour of the respondents. While there might be suspicion raised in the appellant's mind when he saw the President talking with one of the Justices outside the Court house, after the hearing, it could hardly be said that there was a "real likelihood" of bias in this case on the part of the Court. Had the President insisted on sitting and did sit at the hearing or that the respondent had been associating with a member of the Court shortly before and after the hearing then one can argue that a reasonable by-stander seeing that happening could feel a sense of grievance that there is a possibility of a real likelihood of bias on the part of the Court. That was not the position in this case.

It would be a disaster to our system of justice to allow mere suspicion or conjecture by an aggrieved party to a litigation to thwart the disciplined and reasoned decision of an impartial court. The complaint by the appellant in this case, is an attempt to do just that. This ground cannot be sustained.

The second complaint raised in the first ground of appeal is concerned with the alleged submission by the respondents of their list of expenses and costs before the announcement of the decision on 7th April 1994 as raising real likelihood of bias and/or reasonable suspicion of bias on the part of the Court. This assertion comes from the appellant himself and finds no support from the materials before this Court. On the other hand both respondents gave evidence that they handed their list of expenses on 5th April 1994 after objection against the President was made at the commencement of the hearing before the Customary Land Appeal Court. There is suggestion in Rinaldo Walesua's evidence that the list of expenses that he gave to the court on 5th April was in respect of expenses ordered by the court in a previous case, CLAC/83/C/1 in which he was a party against one Toloau That may well be so But it is for the appellant to establish his case and to exclude the possibility raised in the respondent's evidence. On the other hand there is evidence from the record (see page 15 of the Appeal Record) that after the judgement was given at 10 a.m. on 7th April 1994, the respondents, (appellants in the CLAC) applied for costs in the sum of $670.00. The Court adjourned to consider costs and upon resuming it awarded costs in the sum of $150.00 only. That evidence supports the respondents' case that they gave their list of expenses on this case to the Court after the decision was given at 10 a.m. on the 7th April 1994. The onus is on the appellant to establish his grounds of appeal. I am afraid that onus has not been discharged in respect of this ground of appeal.

The second ground of appeal complains that the Customary Land Appeal Court erred in law to rely on the question of res judicata. Mr Lavery argued that the Customary Land Appeal Court heavily relied on this principle and as such it erred in law. With respect I do not accept this argument if it is intended to establish that this Customary Land Appeal Court heavily relied on the CLAC/83/Cl case as the major basis upon which the appeal was allowed by the Customary Land Appeal Court in the matter.

I have read the record and having heard counsel I feel the res judicata argument in this case misconceived. The judgment of the Customary Land Appeal Court must be read as a whole and when that is done the reference of res judicata made by the Customary Land Appeal Court was in respect of the CLAC/83/Cl decision which conclusively decided that Walesua and Samosia are primary owners of the land in question (Bina-Talifu Land). It had not been shown to the Customary Land Appeal Court to the contrary by the appellant in this case. The Customary Land Appeal Court in this case were therefore entitled to rely upon the decision in CLAC/83/Cl which they felt they could not change but followed it. What the Customary Land Appeal Court did was simply to follow its previous decision that the respondents were the primary owners of the same land.

The Customary Land Appeal Court commented on the failure of the present appellant (respondent in CLAC) to give evidence in the Local Court. The Customary Land Appeal Court considered it would be helpful if Unufana'adalo had given evidence.

Clement Baegen who was spokesman for the present appellant gave evidence in the Local Court but never mentioned that the appellant give him a portion of Talifu Land. But as the appellant had not given evidence in the Local Court to support his claim of ownership of the land, Clement Baegeni's evidence is of no value to the appellant.

Mr Lavery argued that the Customary Land Appeal Court was wrong to have barred out the appellant by res judicata by the decision in CLAC/83/C1. Again this argument is misconceived when one reads the Customary Land Appeal Court decision carefully. The appellant was not barred out by res judicata and the Customary Land Appeal Court did not say so. To repeat what I have already said: the CLAC/83/Cl had conclusively decided that the present respondents were the primary owners of Talifu land and Toloau had secondary rights in the same land. The present appellant produced no evidence at all in his dispute against the respondents which could show to the Court he had rights in the land.

In those circumstances there is nothing that I can see erroneous when the Customary Land Appeal Court said that it held itself bound by what it decided in CLAC/83/C1. I reject ground two.

The third ground of appeal complains against the document headed, "GROUNDS OF APPEAL" which the respondents (appellants in the CLAC) filed in the Customary Land Appeal Court against the decision of Local Court. The complaint now is that the said document did not constitute genuine grounds of appeal at all, but only references to parts of the Local Court record. As such, argued Mr Lavery, the appellant was not able to prepare his case properly. Further by proceeding on the basis of the said document, the Customary Land Appeal Court acted contrary to law and in the breach of the rules of natural justice.

This ground can be disposed of very briefly. The proper time to raise such objection to the grounds of appeal against a decision of the Local Court is before the Customary Land Appeal Court. It was not done in this case. It is now too late to rely on such a complaint.

However, even if it can be argued that it was a procedural error on the part of the Customary Land Appeal Court (and I do not think it was) to accept the document referred as containing genuine grounds of appeal, the appellant would face a great task of convincing this Court that the contents of the document head "GROUNDS OF APPEAL" were not sufficient to found points of complaints by the appellants (now respondents) against the decision of the Local Court. In fact my reading of the points raised in the said document clearly showed that the appellants in the Customary Land Appeal Court referred to the various part of the Local Court judgment upon which they based their appeal. In fact in the Customary Land Appeal Court the appeal proceeded on the basis of the points raised in the "GROUNDS OF APPEAL', and the respondent (now the appellant) clearly presented his case also in response to the points raised in that GROUNDS OF APPEAL. For the appellant now to turn around and complain as he now did in his third ground of appeal is, to say the least, devoid of merit. This ground also must be rejected.

The fourth ground of appeal alleges that the Clerk to the Customary Land Appeal Court insisted that the respondent (now appellant) restricted his argument appeal points which did not exist. This, it was argued, was a breach of the rules of natural justice. Interestingly, the appellant did not see fit to give evidence or to speak in the Local Court or in the Customary Land Appeal Court. He relied on his spokesman, Clement Baegeni all along to do his case for him. I am surprised that he can confidently come to this court and strenuously complain about breaches of the rules of natural justice.

Again, before this court, the appellant relied on Clement Baegeni who said in court that he was just given the grounds of appeal to the Customary Land Appeal Court and that he wanted to ask questions regarding those questions but the Clerk did not allow him. Apart from what he now says, there is absolutely nothing else to support such an allegation. To the contrary, the appellant (in reality, Clement Baegeni) was asked by the President of the Customary Land Appeal Court, Daniel Baetalua, to state his reply to the appeal points and he did so give his reply. Perhaps Clement Baegeni had not done enough to convince the Court on behalf of the appellant. But he (the appellant) can hardly complain about that or any breach of fairness, if he simply did nothing himself as it was has case but simply hope for a good 'harvest' to be secured for him by Clement Baegeni. Unfortunately Clement Baegeni could not do so and so the appellant must accept the result.

There is no merit in further dwelling in this ground of appeal and so ground four is also rejected.

Ground five alleges that the Customary Land Appeal Court erred in law by placing reliance on Land Case No. 15/81 (Local Court) between Clement Baegeni and Elijah Toloau. With respect, there is not much in this ground. There is nothing to stop the Customary Land Appeal Court in this case from taking judicial notice of the Land Case No. 15/81 as it was also a case in connection with the same land, Talifu Land. I do not see it as the Customary Land Appeal Court relying on that case to dispose of the appeal before it. Rather, the Customary Land Appeal Court was pointing it out plainly to Clement Baegeni as spokesman for the now-appellant before the Local Court, he never mentioned being given a portion of Talifu Land by the appellant's ancestors. Yet during the survey he said that he was so given.

The Customary Land Appeal Court taking note of the Land Case No. 15181 clearly came to the conclusion that Clement Baegeni's evidence could not be accepted. I see nothing wrong in that. The fact that the case was withdrawn makes no difference. This ground is equally rejected.

All the grounds having been rejected, the appeal must consequently be dismissed. The appellant must pay the respondents' costs of this appeal.

GJB MURIA
CHIEF JUSTICE