Pitakia v Grahm [2003] SBHC 130; HC-CC 091 of 2003 (23 September 2003)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 91 of 2003

WIILIE PITAKIA

–V-

GRAHAM RUPAKANA AND OTHERS

High Court of Solomon Islands
(Muria, CJ)

Date of Hearing: 12^th September 2003
Date of Judgment: 23^rd September 2003

D. Tigulu. for the Applicant
P. Watts for the 1^st Defendants/1^st Respondents
M B Samuel for the 2^nd Defendants/2^nd Respondents

MURIA, CJ; The applicant comes to this Court seeking an order of certiorari to quash the decision of the Babatana Council of Chiefs dated 29^th October 2002, and that the matter be referred to a differently constituted Babatana Council of Chiefs. The sole ground for the application is that breach of natural justice in that the applicant was given and or denied a fair opportunity to be heard. In support of his application the applicant relied on his affidavit filed on 25^th April 2003, and that of Ralph Pitakia filed on 5^th May 2003.

Brief Background

The brief background to this case is that following an interest by the first respondent to invite a logging operator onto Borovai Land in South Choiseul, a hearing by the Babatana Council of Chiefs to determine the customary rights and interest in the said land was arranged to be held at Malangono on 25^th September 2002 which was two weeks after the applicant received the notice of hearing. Malangono is a four hours journey by outboard motor canoe, and it is the first respondent’s place. A request by letter was given by the applicant requesting the matter be postponed to December 2002. The Chairman of the Council of Chiefs, in response, re-scheduled the hearing to 23^rd October 2002 rather than December 2002. The applicant again wrote to the second respondent pointing out the difficulty he faced in consulting his tribal members some of whom were in Honiara, and getting them to attend the hearing. The applicant repeated his request for the hearing to be in December 2002. On 14^th October 2002 the second respondent replied stating that the hearing would be on 23^rd October 2002 and could not be changed. The hearing proceeded in the absence of the applicant on 23^rd October 2002. The Chiefs’ decision in favour of the first respondent was not received by the applicant until April 2003. In addition, the “Accepted Settlement” Form had also been issued on the same date of the decision (29^th October 2002). In paragraph 9 (b) (Declaration of Acceptance) it showed that the applicant, in absence, accepted the Chiefs’ decision, something which the applicant strongly denied ever doing.

Chiefs’ decision amendable to challenge

The Chiefs’ authority to hear and determine disputes over customary land stems from section 12 of the Local Courts Act (Cap. 19) under which the parties must first bring their disputes to the Chiefs before proceeding to the Local Court. The Council of Chiefs in this case exercised a public function and of a judicial type and as such their decision is reviewable. The remedy of certiorari is open to the applicant to pursue against second respondent’s decision. This Court has stated in the case of Eric Havea and Gordon Leua –v- Paripao House of Chiefs and Eric Kuta^[1].

“Traditionally, certiorari can only lie against a body which was obliged to act judicially or quasi-judicially. However, it has now been made clear that this ancient remedy or certiorari must be adaptable to meet the changing conditions of our time. Decisions of tribunals or bodies established by acts of government and are of public, as opposed to private, character and which although not obliged to act judicially, are required to act fairly are reviewable by certiorari. This is the modern approach. The only constant limit is that the body concerned must be performing a public duty. See Reg. –v- Criminal Injuries Compensation Board, Ex. p. Lain [1967] 2 Q.B. 864; Reg. Take-over Panel, Ex. p. Datafin Plc [1986] EWCA Civ 8; [1987] 2 WLR 699.

The Paripao House of Chiefs in this case had constituted itself for the purpose of enquiring into the dispute over the land in question between the applicants’ line and second respondent’s line. This is in line with the Local Courts Act which provides, inter alia, that no Local Court shall have jurisdiction to hear and determine any customary land dispute unless that dispute is first dealt with by the Chiefs Section 12 (1), (Cap. 19, Revised Edition of the Laws). One is therefore disposed to see that the authority of the Chiefs (or a body of them) stems, not only from an act of government but also from an Act of Parliament. The manner in which the Chiefs constitute themselves into a body and the procedure employed at the hearing of disputes before them are, however, not formalized by statute. Nevertheless the Chiefs are a recognized authority for the purpose of determining the rights of the disputing parties to a customary land dispute. The Chiefs have, by the nature of their authority, exercise at least some judicial-type duty. The remedy we are concerned with here would therefore lie against their decision.”

Clearly, a decision by the Chiefs made pursuant to the exercise of their power under the Local Courts Act is amenable to challenge under the review powers of this Court.

Was there a breach of the rule of natural justice?

The question as to whether there was a breach of the rule of natural justice is a question of law to be determined on the facts as disclosed to the Court. In the present case, the evidence disclosed on the affidavits are largely not in dispute. The notice of hearing for 25^th September 2002 was served on the applicant two weeks before that date. In response, the applicant sought an extension of time which the second respondent agreed, though not to December 2002, but only to 23^rd October 2002. The applicant wrote to the second respondent insisting that the case be heard in December 2002 instead of 23^rd October 2002. The second respondent refused to further delay the hearing to December 2002. Consequently the second respondent heard the case on 23^rd October 2002 and delivered its decision on 29^th October 2002.

The rule “audi alteram partem”, in essence means that a party must have a reasonable notice of the case brought against him, and he must be given the opportunity to put his case, and to answer any arguments against him. The right stemming from this rule is usually paraphrased as the ‘right to be heard?’ But it is more than that. It encompasses also the right to be given reasonable notice of and an opportunity to be heard in a case brought against a person. The case of John Pita –v- Isaac Qoloni and Leslie Pitisopa^[2] expresses this rule in the following words:-

“The right to be given the opportunity to state one’s case entails also the right to be given reasonable notice of the case a party has to meet thus the opportunity to present one’s case can only become real if reasonable notice of the opportunity is given to the party concerned.”.

The rule “audi alteram partem” however does not mean that a person must be heard orally, nor does the maxim mean that a person has the right to have his case dealt with in particular manner. The rule allows a person to be given notice of the hearing which he may choose to attend and heard orally or be represented or even have his case presented in writing to the tribunal. In the present case, notice of the hearing had been given to the applicant. At first, the period within which the applicant was given the opportunity to attend the hearing was only two weeks. Upon his request, the second respondent gave the applicant one month’s notice for the hearing on 23^rd October 2002. That, in the circumstances, was reasonable notice of the hearing and an ample opportunity given to the applicant to present his case. The rule relied on by the applicant is not breached simply because his request for extension of time is turned down. In the circumstances, there was no breach of the rule of natural justice when the second respondent heard the case between the first respondent and applicant over Borovai Land on 23^rd October 2002.

The next branch of the applicant’s complaint is the non-availability of the second respondent’s decision until April 2003. The applicant’s argument is that, because he did not receive a copy of the decision until April 2003, his right to challenge it had been lost. In other words, he was deprived of the opportunity to challenge the decision either “by way of appeal or review” as he was only able to be given a copy of the decision some six months later. There are two parts to this argument. Firstly, on the procedure of challenging the chiefs’ decision on customary land matters, the Local Courts Act does not say that a party aggrieved of the Chiefs’ decision has to appeal to the Local Court within three months from the date of the Chiefs’ decision. The three months period mentioned in section 14 of the Act applies to a decision that is “wholly acceptable” to both parties, for a decision as such is ‘deemed to be a decision of the Local Court for the purpose of any law. That Law, of course, includes the law providing the right to appeal to CLAC against the Local Courts decision. Where a party does not agree to the Chiefs’ decision, the “Unaccepted Settlement” Form is filled in. The aggrieved party may then bring the case to the Local Court afresh. This is what sections 12 and 13 of the Local Courts Act provide and three months limitation period does not apply to that process.

The “Accepted Settlement” Form

I feel I need mention briefly the Court’s concern about the “Accepted Settlement” Form filled in by the first and second respondents in this case. The law requires that “the parties”, that is, both parties and two or more Chiefs who took part in making the decision signed the Form. In this case, the Form shows that the applicant’s first name with the added word “absent” in bracket were written in, in paragraph 9 (b) in the Form. The applicant did not sign. This is not surprising since the applicant was not present. Unless both parties agreed or if the other party was absent and evidence has shown that he agreed to the decision of the Chiefs, no “Accepted Settlement” Form should be witnessed by the Chiefs. The “Accepted Settlement” Form in this case should not have been witnessed by the Chiefs. It, having been signed by the first respondent and witnessed by the Chiefs contrary to the provisions of section 14 of the Local Courts Act, it has no effect.

In the present case, the applicant clearly was not happy with the Chiefs decision and so when he learned of the decision in April 2003, it was still open to him to do what sections 12 and 13 of the Act requires of him to do. The opportunity to challenge that decision had not been lost nor had he been deprived of it. It is a fallacy to equate the process of challenging a Chiefs’ decision with that of the Local Court in land cases when such a decision is not acceptable to a party. Legal practitioners advising their clients ought to have take cognizance of these provisions of the law and advise their clients properly.

It must be pointed out that certiorari is a discretionary remedy and as such the Court has discretion not to grant it where a party, as expected, would best exhaust the reliefs provided by statutes. It was open to the applicant to take the matter to the Local Court as permitted by law upon learning of the Chiefs’ decision. He had not done that. As such it would not be right to grant him certiorari also.

In the circumstance, the application for the order of certiorari is refused. It follows also that the costs of this application must be paid by the applicant.

Order accordingly.

(Sir John Muria)
CHIEF JUSTICE

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^[1] Eric Havea and Gordon Leua –v- Paripao House of Chiefs and Eric Kuta (22^nd June 1999) High Court, CC196/1999.

^[2] John Pita –v- Isaac Qoloni and Leslie Pitisopa (21/12/1997) LAC No. 6 of 1996