Liiou'ou v Saruhohola [1999] SBHC 83; HC-LAC 017 of 1996 (30 August 1999)

p class="MsoNormal"rmal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> HIGH COURT OF SOLOMON ISLANDS

Land Appeal Case No. 17 of 1996

EMILIO LIIOU'OU

v

JOHN SARUHOHOLA

High Court of Solomon Islands

Before : Lungole-Awich, J

Land Appeal Case No: 17 of 1996

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Date of Hearin/8/99

Date of Judgment: 30/8/99

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A Nori for thellant

P Lavery for the Respondent

(LUNGOLE-AWICH, J): Background of the Appeal. The appellant, Emilio Liiou’ou claimed that customary land known as Pwau Liwe, in South Malaita, belonged to him and his tribe by discovery and first settlement by his ancestors and subsequent succession down to himself and his tribesmen. The respondent, Johnson Saruhohola, also claimed Pwau Liwe land for himself and his tribe by the same ways. It is common ground that two unrelated tribes cannot own the same customary land, although one tribe may grant permission for a non-related tribe to live on the land and cultivate food crops. The respondent was the plaintiff at the local Council of Chiefs and at the Malaita Local Court for the area. His case was that he was the owner of Pwau Liwe land and that the appellant's tribe only settled there with permission, but in the recent past had “stolen” the land while the respondent was away, “working for a white man in the Western Province.” From the context of the case, the respondent used the expression, had stolen, to mean that the appellant had acted inconsistently with the claim to customary ownership interest of the respondent.

The respondent took the dispute to the Council of C of the local area. According to the statutory form L LC Civil 3, dated "10-12 July 1991" filed at the Malaita Customary Land Appeal Court, the chiefs heard evidence such as succession down according to genealogy, relevant in deciding ownership of customary land. Their decision was that Johnson Saruhohola owned Pwau Liwe land, Emilio Liiou’ou did not. Under s.12 of the Local Courts Act, Cap. 19 in the Laws of Solomon Islands, Chiefs' decision may not be accepted by the parties, in which case the decision does not bind them, and so the dispute remains unresolved. The dispute may then be referred to the Local Court as a court case whereat it is in fact dealt with as if it is a new case - see s.13 of the Act. That is what happened in this case. Emilio Liiouou did not accept the decision of the chiefs so Johnson Saruhohola took the case to the Local Court. He won the case; the decision of the Local Court dated 4.12.1995, was that Johnson Saruhohola and not Emilio Liiou’ou, owned Pwau Liwe land. The decision of a Local Court is binding unless overturned on appeal. In this case, Emilio Liiou’ou appealed to the Malaita Customary Land Appeal Court, the MCLAC. In its judgment dated 24^th August 1996, the MCLAC dismissed Liiou’ou’s appeal and awarded costs against him. Liiou’ou has appealed to the High Court. This is the judgment of the High Court in the appeal.

The Appeal to the Court and Grounds

lass=lass="MsoNormal" style="margin-top: 1; margin-bottom: 1"> Appeal from Customary Land Appeal Court to the High Court is entertainevery limited grounds:- see see ss.256 and 257 of the Land and Titles Act, Cap. 133 of the Laws. Appeal is available on point of law other than customary law, which really means on point of statute law if statute applies in the particular case, for example when the customary land has since been registered under the Land and Titles Act. Provisions in the Local Court Act and the Land and Titles Act may also be points of appeal. Appeal is also available on question of written law of procedure. Our Court has interpreted that to include appeal on the ground of error in not applying the rules of natural justice - see for instance the case of Talasasa -v- Paia and Another [1980] SILR 93 in which the law in the English case of Metropolitan Properties Co (FGC) Ltd -v- Lennon and Others [1968] EWCA Civ 5; [1968] 3 All ER 304 was adopted and the case of Bade and Soso -v- Sautuana [1985/86] SILR 56 in which the law as stated in R -v- Altrincham Justices, Ex Parte Pennington and Another [1975] 2 All ER 78 and other English cases were adopted.

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Appt stated three grounds of appeal, namely:

“1. &nbbsp;&&nbsp CLhe CLAC eLAC eLAC erred in admitting and relying on the letter written to it by the Local Court Vice Presidenthonoi, when such a letter cannot and should not have been admitted and treatedeated as e as evidence;

lass=lass="MsoNormal" style="text-indent: -36.0pt; margin-left: 72.0pt; margin-top: 1; margin-bottom: 1"> 2. &nTsp; LAe Crre ein n not investigating into the Appellant’s allegation of unfair and biased practice on the part of the Local Court justices.n>

ass=lass="MsoNormal" style="text-indent: -36.0pt; margin-left: 72.0pt; margin-top: 1; margin-bottom: 1"> 3. TAe CL ’s cr icist and and attitude towards the Appellant’s form of appeal had prejudiced its ability to give a fair and just determination o Appe’s ppealpan>

Grounds 1 and 2 are related; they relate to the same ground of bias that the Local Court President, Anthony Ramoi was seen by the appellant, talking to the respondent/plaintiff in the absence of the Clerk of Court and the other court justices. The letter referred to in ground 1 was in answer to the allegation of bias in ground 2.

Investigating Complaint of Bias

About ground 2, I do not think that when considering testion of bias, the Court iurt is required to investigate beyond the material presented to it, rather it is the parties to support or discredit the allegation of bias by pointing out the evidence of bias or discrediting it. In this case the MCLAC considered the allegation of bias together with the letter of the Local Court Vice President, against whom the allegation was made. Those were the materials made available to court, I do not think that the MCLAC was required to do more than that. Customary Land Appeal Courts and Local Courts are not expected to follow the finer unwritten rules of evidence and procedure in the adopted Common Law.

The Rule Against Bias (Natural Justice)

Sussex Justices, Ex Parte McCarthy [1923] EWHC KB 1; [1924] 1 KB 256 stated the rule in a most memorable way. The case was an application to quash a criminal conviction on a charge of driving in a manner dangerous to the public. As required, a Clerk who was a solicitor sat with the presiding local justices and retired with them when the justices considered their verdict. They reached their verdict convicting the defendant/applicant without the need to ask for technical advice from the Clerk. The applicant asked that the judgment be quashed because the Clerk was a member of a firm of solicitors engaged in civil claims for damages, based on collision, the subject of the dangerous driving charge. In quashing the conviction Lord Hewart CJ stated at page 259, the following passage which included the most memorable phrase now well known even to non lawyers; the passage is:

“But while that is so, a long line of cases shows th is not merely of some impo importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. The question therefore is not whether in this case the deputy clerk made any observation or offered any criticism which he might not properly have made or offered; the question is whether he was so related to the case in its civil aspect as to be unfit to act as clerk to the justices in the criminal matter. The answer to that question depends not upon what actually was done but upon what might appear to be done. Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice.”

ass=lass="MsoNormal" style="margin-top: 1; margin-bottom: 1"> Another illustrative English case is Dimes -v- Grand Junction Canal [1852] EngR 789; [1852] 3 H.L.C 759, a case in which the rule against bias was said to have been breached when the Chief Justice presided in a case in which a company in which he had substantial shares was a party, although there was no supposition whatsoever that he acted or decided the case with bias.

class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> Affording Opportunity to be Heard and to Know the Case (Natural Jus

The other component of the rule of natural justice requires that in deciding disputes the court must ensure that both or all parties are heard. The rule includes affording parties opportunity to know the case against them. It is expressed in Latin as, audi alteram partem. The English cases of Local Government Board –v- Arlidge [1915] AC 120 and Ridge -v- Baldwin [1961] 2 All ER 523, a case from Malaysia (Asia), Kanda -v- Government of the Federation of Malay [1962] UKPC 2; [1962] AC 322 and a case from Gambia (Africa), Attorney General of Gambia -v- N'Jie [1961] 2 All ER 504 all illustrate the rule. In this jurisdiction, a customary land appeal case in which the rule requiring that parties be afforded opportunity to be heard was applied is John Pita -v- Isaac Qoloni and Leslie Pitisopa, CLAC No.6 of 1996. In the case, my learned brother, Muria CJ said that reasonable notice of the date of hearing of the case had not been given and so the appellant had not been afforded reasonable opportunity to state his case. The notice was simply an announcement on the radio. The rule requiring affording opportunity is not in issue in this appeal.

Was there an Appearance of Bias or Even Bias?

On the facts of this the allegation which, if I take to be evidence, was that the respondent was in the guest house when the president of the Local Court was in. There was no evidence of how the respondent got there. Was he invited by the Court President or did he go there uninvited as did the appellant? It is to be noted that appellant also went to the guest house and the president allowed him in and asked both appellant and respondent some questions about the case. That questioning outside court proceeding may have been improper, but nothing was given to Court to suggest that it was done in a way that gave the impression of bias. There in fact has been no evidence as to whether the president and the respondent actually were in discussion at all in the guest house. Unfortunately it often happens in this jurisdiction that parties try to get near or even into common chat with unsuspecting justices. Sometimes judges even discover that they have shared guest houses with parties. In many villages there is just the one guest house for all visitors. Moreover, if the appellant perceived bias, he had, right at the commencement of the Local Court proceeding, opportunity to object to Justice Ramoi presiding in the case. The Local Court in fact specifically commenced its proceeding with asking parties for any objection to any of the justices sitting. That is now the standard practice of the Local Courts and Customary Land Appeal Courts. It was instead the respondent who objected to one of the justices, although the respondent later withdrew the objection. Absence of objection to presiding justice at trial was an important consideration in the decision of Ward CJ in the case of Talasasa -v- Paia, cited earlier. In my view when a party alleges bias, he must produce sufficient evidence to support it, but once sufficiently supported, bias will operate to vitiate the decision of the Court, however free from bias the judgment may appear to be and however well intentioned the judge may have acted on the occasion, the subject of the complaint of bias - see Dimes -v- Grand Junction Canal [1852] EngR 789; 1852] 3 H.L.C. 759 cited earlier. Taking all the facts together, I do not think there was sufficient evidence of appearance of bias in this case.

class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> Actual bias would, of course, similarly vitiate the trial. From the record, actual bias has not been exhibited. Both appeal grounds 1 and 2 about bias are dismissed.

Criticism of the Presentation of the A Points to MCLAC

The ground of appeal that the MCLAC's criticism of the presentation of the appeints prejudiced its d decision is unsupported by the record. The Court was entitled to point out to the appellant, and indeed would be appellants, that they were required to present their appeal in the way that the Court could easily understand. In fact it was in their interest that the court understood their appeal. I have read the lengthy appeal points which had many deletions and long handwritten additions. The appeal points included submissions. It must have taken a very long time for the MCLAC to identify which points were left for it to consider; it certainly took me a long time. I have not found in the record that the criticism of the MCLAC influenced its final decision. Ground 3 is also dismissed.

class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> Order Dismissing Appeal

The result of the appeal is that it is dismissed. Appe is to pay the costs of thef the appeal.

lass="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> Delivered this Monday the 30 day of August 1999

lass="Mso="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> Sam Lungole-Awich

Judge