Sibisopere v Karovo [1997] SBHC 115; HCSI-LAC 12 of 1996 (11 December 1997)

IN THE HIGH COURT OF SOLOMON ISLANDS

Land Appeal Case No. 12 of 1996

MILTON SIBISOPERE, DAVID QIUNA & OTHERS

-v-

SHAKESPEAR KAROVO, OTEPILE AJO & OTHERS

High Court of Solomon Islands
(Muria, CJ.)
Land Appeal Case No. 12 of 1996

Hearing: 29 September 1996 at Gizo
Judgment: 11 December 1997

Julian R. Moti for the Appellants
Douglas Hou for the Respondents

MURIA CJ: This is an appeal by the appellants against the decision of the Customary Land Appeal Court (Western) over Sipo Land. There are two grounds to the appeal, namely:

1. The Western Customary Land Appeal Court erred in law in failing to allow the parties to adduce evidence to show whether or not the record of proceedings of the Vella La Vella Local Court exhaustive, complete and/or consistent with the actual conduct of those proceedings,

2. The Customary Land Appeal Court erred in law in finding that the parties had not by their conduct, silence or acquiescene waived compliance with the requirement of Section 10(9) of the Constitution.

In support of their appeal the appellants called Milton Sibisopere (one of the appellants) who gave evidence of what had happened at the hearing before the Local court and Customary Land Appeal Court. The respondents did not seek to call any evidence at the appeal but simply argued in support of the decision of the Customary Land Appeal Court.

The brief background to this case is that a dispute had arisen as to the ownership of Sipo Land. That dispute came before the Local Court on 7 November 1995. Evidence was given on behalf of both parties followed by a survey of the boundary of, tabu sites and properties on the land. Having satisfied itself of the evidence the Local Court made its decision on 19 December 1995 granting primary ownership of the land to the plaintiffs. The defendants appealed to the Customary Land Appeal Court (W) against the Local Court’s decision. There were eight (8) grounds said to be relied upon by the defendants (present respondents) at the Customary Land Appeal Court hearing. The Customary Land Appeal Court however considered it essential to consider only grounds one (1) and (2) first, as the outcome of the Court’s consideration of those two grounds would enable the Court to consider whether or not to consider the other grounds of appeal. The two grounds which the Customary Land Appeal Court dealt with were: firstly the decision of the Local Court was contrary to the resolution of the Court, and secondly, that if the decision of the Court was resolved by the Court then the Court did not properly substantiate its decision and in the process ignored evidence presented by appellants (present respondents) at the Local Court. So the Court could not have made a fair decision. Having considered the appeal before it, the Customary Land Appeal Court (W) decided that the decision of the Local Court be quashed and remitted to a differently constituted Local Court.

Against that background, I now turn to the grounds advanced in this present appeal. But before I do that I feel it is necessary to say something about the manner in which the Customary Land Appeal Court dealt with the appeal.

Tendering of Affidavit Evidence by Justices of the Local Court.

At the hearing before the Customary Land Appeal Court, two Local Court Justices who constituted the Local Court at the hearing before it of this dispute swore an affidavit in support of the present respondents at the Customary Land Appeal Court hearing. In their affidavit, the two Justices stated in effect that they were not part of the making of the decision in favour of the present appellant. They denied signing the Local Court’s decision on 19 December 1995. The two Justices also denied telling the parties the manner in which the decision of the Local Court would be delivered.

There are two basic principles which must be borne in mind on this aspect of the matter before the Court. Firstly, it is incumbent on all persons administering justice through the Courts that they maintain the respect for the system of administering justice and must not do anything which will destroy the trust which the people place on that system. The action taken by the two justices in swearing an affidavit to counter the decision of the Court on which they sat as members goes to weaken that trust and could bring dispute and embarrassment to the Court. Secondly the justices’ action may well lead an ordinary person watching the proceedings to conclude that the court was not impartial particularly for the two justices whose action may well be viewed as biased toward one of the parties in the case. Let me point out that this practice of Local Court Justices filing affidavits in support of a party to a dispute over which they adjudicated must cease.

The Grounds of Appeal

I return now to the grounds of appeal. The first ground complains that the Customary Land Appeal Court was wrong in law by failing to allow the parties to give evidence to show whether or not the record of the proceedings before the Local Court was exhaustive, complete and or consistent with those proceedings. At the Customary Land Appeal Court hearing the appellants (who were the respondents at the Customary Land Appeal Court (hearing) sought to tender as part of their case the document (hand written record of the proceedings of the Local Court as noted down by them during the course of the hearing) but the Customary Land Appeal Court did not allow that to be done. The Customary Land Appeal Court accepted the typed version of the record of Local Court proceedings as prepared by the Local Court Clerk. At the hearing of this appeal, the hand written notes of the record of the Local Court proceedings as taken down by the present appellant during the Local Court hearing was allowed to be used as evidence with no objection from the respondents.

The first ground of appeal challenges the completeness of the record of the proceedings before the Local Court. It is therefore essential that evidence be shown to establish what has been asserted. Mr. Sibisopere was called and gave evidence of what happened during the hearing before the Local Court. He kept the records of what happened each day of the hearing. He noted down in handwritten form the dates, who gave evidence on each day, what time the Court started each day or what time the court started again after lunch adjournment, the questions and answers in respect of each witness of both parties, what the court said at the end of the hearing, and the actual day the hearing in court ended that is, before the site visit by the court and the parties. When one compares the hand written notes kept by the appellants with the typed record prepared and kept by the Court Clerk the complaint by the appellants that the typed record as prepared by the Court Clerk was incomplete is clearly correct.

The Court will of course not lightly treat challenges to court records by allowing extraneous materials to be used to distort records of Court proceedings. However where there are matters of substance said or done in Court in the course of the hearing omitted from the record such matters if noted down by the parties present before the Court may be allowed to be considered for the purpose of ensuring that the record is correct. In this case, apart from showing that the hearing commenced on 7 November 1995, there was no record showing that the hearing lasted for so many days nor was there any record to show that there had been any breaks during the hearing nor was there any record to show what the appellants maintained the Court President to have said at the end of the hearing. The appellants had kept records of all these matters. Not only that the appellants kept records of the sequence in which the witnesses were called as shown in the Court Clerk’s typed record but the times and dates in which they gave evidence which matters the Court Clerk had not recorded. The only dates shown on the Court Clerk’s typed record are 7 November 1995 which was the date of hearing commenced and 18 December 1995 which was the adjournment date before the decision was given. This gives the reflection that Court record as kept by the Court Clerk is not complete.

It is very difficult to keep a full and complete record of the proceedings in the absence of Court recording machines. Not only that the Local Courts have this difficulty but all Courts in this country. Perhaps one day this difficulty may be resolved. But at this stage the courts do the best they can to keep records of their proceedings. Where however a matter of substantial importance to the proceedings is said in Court, either by the Court or the parties, that must be noted down. If the Court Clerk omitted that and the parties present had it written down, the parties or a party noting it, can ask the Court to include that in the record of the proceedings. Where that has not been done and it can be shown on appeal that the record is incomplete, the appellate court having been so satisfied may allow those matters noted down by the parties or party during the proceedings below to be considered as part of the record.

In the present case I am satisfied that the record kept by the Court Clerk was incomplete and the appellant should have been allowed to adduce evidence to show that so as to enable the Customary Land Appeal Court to consider the issues raised before it based on full and complete record of the Local Court proceedings.

Mr. Hou’s contention is that if the Customary Land Appeal Court allowed a party to call evidence to challenge the record of the Local Court proceedings, it would be opening a “flood gate” rendering future Local Court proceedings to be opened to attack. I do not think so. In fact, in my view, this will ensure that records of proceedings before the Local Courts are carefully kept and such a challenge on the Court records will not occur or at least will be minimised. Each case of course depends on its own circumstances.

In this case the Customary Land Appeal Court erred when it failed to allow the appellant to adduce evidence to show that the Local Court’s record of the proceedings was incomplete. The first ground of the appeal succeeds.

The second ground of appeal is not disputed by the respondent. However Mr. Hou submitted that even if the first ground in this appeal succeeds, the decision of the Customary Land Appeal Court could still be supported based on its determination of the appeal points 1 & 2 in the appeal before it. Counsel further submitted that the Customary Land Appeal Court’s decision on those two appeal points were fundamental to its decision. However in the event this Court upholds the appeal, Mr. Hou submitted that the appropriate course would be to send the matter back to the Local Court and not to the Customary Land Appeal Court.

The respondent does not dispute the second ground of this appeal, nevertheless as reliance was placed on the points 1 & 2 in the appeal before the Customary Land Appeal Court, I should say something on those two points. The first is concerned with the allegation that the decision of Local Court was contrary to the resolution of that Court. Reliance appeared to be placed by the Customary Land Appeal Court heavily on the affidavit of the Justices.

Leaving aside what I have already said about Justices of Local Courts swearing affidavits in support of one party on appeal in a case in which they sat as Justices in the first instance, I must point out that the decision of a Local Court is usually signed by the President. There may be occasions when all the three members of the Court sign judgments. But the Court having made the judgment, the signature of the President alone is sufficient to signify that the judgment is that of the Court. For the other two members of the Court to say that they were not part of the making of the decision in this case because they had not signed the judgment is not right and cannot be accepted.

Further, the Customary Land Appeal Court readily accepted the affidavit of the two Justices denying being a part to the making of the decision in the Local Court. That being so, the implication was that the President did it all by himself. No opportunity was ever given to the President to be head on the assertion by the two Justices, so that his position and that of the Local Court were clarified. The Customary Land Appeal Court simply accepted the two Justices’ affidavit and proceeded to deal with appellants’ appeal (now respondents) before it. The Customary Land Appeal Court should not have proceeded with the appeal before it in the manner it did.

The Constitutional Provisions

In the light of that conclusion I do not need to go into the constitutional issue raised in the second ground of appeal and which Mr. Moti eloquently argued before this Court. However I feel I should briefly just pointed out that section 18(3) of the Constitution enables a person presiding in “any subordinate Court” to seek the assistance of the High Court when an alleged breach of any of the provisions of sections 3 to 16 of the Constitution is raised before that subordinate court. This provision is couched in both mandatory and non-mandatory terms. It is mandatory if a party before the subordinate court requests the reference to be made to the High Court and it is non-mandatory if that subordinate Court is to refer the question of constitutional breach to the High Court. I urge subordinate courts to bear this provision in mind.

In the appeal before the Customary Land Appeal Court the question of non-compliance with section 10(9) of Constitution had been raised. Yet the Customary Land Appeal Court did not see it fit to proceed thereafter as required by section 18(3). This provision is in my view a direction to all subordinate Courts to the constitutional requirement that the function of interpreting the Constitution and in particular as to enforcement of the protective provisions (sections 3 to 16) lies to the High Court. It is therefore essential that subordinate Courts adhere to this provision. Had this been done in this case, the question of whether section 10(9) of the Constitution had been contravened or not would have been referred to this Court before the Customary Land Appeal Court proceeded to conclude the hearing of the appeal before it. It did not do so in this case and I feel that is also a fundamental error on the part of the Customary Land Appeal Court.

For all the reasons given and having regard to the evidence before the Court, the appeal must succeed. I therefore allow the appeal. The decision of the Customary Land Appeal Court is quashed.

The case is remitted to the Customary Land Appeal Court (Western) differently constituted to rehear the appeal from the Local Court.

(GJB MURIA)
CHIEF JUSTICE