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High Court of Solomon Islands |
HIGH COURT OF SOLOMON ISLANDS
Civil Case Number 133 of 2002
SHAKESPEAR KAROVO, OTEPILE AJO AND OTHERS
V.
MILTON SIBISOPERE, DAVID QIUNA AND OTHERS
High Court of Solomon Islands
(Palmer J.)
Date of Hearing: 24th March 2003
Date of Judgment: 5th May 2003
Pacific Lawyers for the Applicants/Respondents
D. Hou for the Respondents/Appellants
PALMER J.: This is a land dispute case between the Applicants (hereinafter referred to as “the Respondents” for convenience) and the Respondents (hereinafter referred to as “the Appellants”) concerning the ownership of Sipo Land in Vella La Vella Island, Western Province. Litigation over the land can be traced back to 19th December 1995 when the Vella La Vella Local Court heard and gave its decision on the ownership of the land. That decision was appealed against to the Western Customary Land Appeal Court (“WCLAC”), to this Court in LAC. No. 12 of 1996, which sent the matter back to the WCLAC and now back to this court again. When the matter came before this court in LAC. No. 12 of 1996, the High Court had ordered that the dispute be re-heard by a differently constituted WCLAC. It is that decision of the WCLAC dated 27th February 2002 that is now the subject of this appeal before this Court. Mr. Moti for the Respondents has aptly described the litigation route this case had taken through the Chiefs, the Local Courts and the Customary Land Appeal Courts (hereinafter referred to as “the Land Courts”) as “a merry–go-round of hearings and appeals”. It has taken up to at least eight years now to settle.
The Notice of Appeal was filed by the Appellants, at the High Court Registry in Honiara on 24th May 2002 and a copy faxed to the Secretary to the WCLAC at Gizo, Western Province. This was received on the same day by the Secretary and duly processed as a valid Notice of Appeal. The time limit, being three months, for lodging an appeal under section 256(3) of the Land and Titles Act [Cap. 133] (hereinafter referred to as “the Act”) would have lapsed on 27th May 2002. The appeal had been lodged well before that dead line had expired.
Notice of Appeal
The Notice of Appeal contains nine grounds. These are set out for convenience below:
“AND FURTHER TAKE NOTICE THAT THE grounds of Appeal are that the Customary Land Appeal Court of the Western District erred in law and/or procedure as follows:-
Notice of Motion of the Respondents
The Notice of Motion of the Respondents was filed on 3rd October 2002 seeking orders pursuant to Order 60A rule 2(2) of the High Court (Civil Procedure) Rules 1964 (“the Rules”) and/or the inherent jurisdiction of the Court, for the said Notice of Appeal to be struck out and the appeal dismissed on a number of grounds. These are set out in full below:
“1. the Notice of Appeal was filed in the High Court Registry and not with the Clerk to the WCLAC or the Principal Magistrate (Western), in breach of Order 60A, rule 2(1) of the Rules;
2. paragraphs (1) – (9) inclusive of the Notice of Appeal:
(a) vague, indecipherable and incomprehensible; and/or
(b) are general in terms; and/or
(c) do not disclose reasonable grounds of appeal on the bases permitted by Section 256(3) of the Land and Titles Act [Cap 133] (“the Act”) in that they are not properly founded on the ground:
- (i) that either the decision of the WCLAC is erroneous in point of law; or
- (ii) of failure by the WCLAC to comply with any procedural requirement of any written law;
and, therefore, impermissible;
3. to the extent that they expressly or impliedly question the decision of the High Court in Land Appeal Case No. 12 of 1996 (delivered on December 11, 1997), paragraphs 1, 2, 3, 5, 6 and 7 (inclusive) of the Notice of Appeal:
(a) are not justiciable by virtue of the prohibitive terms and preclusive effect of Section 256(4) of the Act;
(b) are disguised as an appeal from that decision, contrary to the stipulations of Sections 256 (4) and 257 (3) and (4) of the Act;
4. paragraphs 1, 2 and 3 of the Notice of Appeal are not valid grounds of appeal under Section 256 (3) of the Act but arguably potential bases for judicial review, subject to compliance with the requirements of Order 61 of the Rules;
5. paragraph 4 of the Notice of Appeal is contrary to:
(a) the principles governing the reception of evidence in matters and events occurring between the dates of the original and appellate hearings;
(b) the prevailing practice and procedure which, in the absence of written rules, is determined and regulated by the WCLAC within the limits of its jurisdictional competence;
(c) the transcript of proceedings of the WCLAC recorded by the Secretary/Magistrate and authenticated by the Appellants and Respondents;
6. paragraphs 6 and 7 of the Notice of Appeal are designed to bring the system of administration of justice into disrepute;
7. paragraphs 8 and 9 of the Notice of Appeal pertain to factual, evidentiary or discretionary matters, which are properly within the jurisdictional competence of the WCLAC and precluded from appeal under Section 256(3) of the Act;
8. the relief sought by the Appellants in the form of paragraph (i) of the proposed Orders cannot be made by the High Court in exercise of its jurisdiction under Section 256 of the Act;”
1. Non-compliance with Order 60A rule 2(1) of the Rules
The first objection taken by the Respondents against the Notice of Appeal of the Appellants was that it failed to comply with the requirements of Order 60A rule 2(1) of the Rules. The Notice of Appeal had been filed with the High Court Registry instead of with the Clerk to the WCLAC as required by the Rules. The Clerk to the WCLAC who is also the Principal Magistrate of the Western District Magistrates’ Court had confirmed receipt of the faxed copy of the Notice of Appeal on 24th May 2002.
Grounds of non-compliance
The complaints of the Respondents on non-compliance with Order 60A rule 2(1) of the Rules are as follows:
“(a) why the covering letter (Exhibit A to the WCLAC Clerk’s affidavit sworn on November 23, 2002) from Mr. Hou dated “23rd May 2002”:
(i) is addressed in the first instance to the Registrar of High Court and not the Clerk of the WCLAC;
(ii) states that “by copy the Secretary to the WCLAC is served with” the Notice of Appeal;
(iii) encloses the Notice of Appeal dated “24th May 2002”;
(iv) attaches the Notice of Appeal with the date (“/05/02) and time (“11.55 am”) entered and the High Court’s stamp already affixed thereon (Exhibit B to the WCLAC Clerk’s affidavit);
(b) why the Notice of Appeal was “faxed” and not filed in the ordinary way;
(c) as to whether or not the Notice of Appeal was “accompanied by a sufficient number of copies for service on all such parties” directly affected by the appeal: Order 60A, rule 2(1);
(d) why there is no explanation of the reason(s) why it was necessary to short-circuit the prescribed procedure for instituting appeals;
(e) why service of the Notice of Appeal was effected on the Respondents in disregard of Order 60A, rule 4.”
The issue for determination
The issue, which arises for determination from the complaint of the Respondents, is whether an appeal filed in time at the High Court Registry with the relevant fee paid, is contrary to Order 60A rule 2(1) of the Rules. Rule 2(1) of Order 60A requires all appeals filed under section 256(1) of the Act to be filed with the Clerk to the CLAC.
This court however had dealt with this very same issue in Dick and Dennie v. North New Georgia Timber Corporation and Others[1]. In that case his Lordship Kabui J. condemned the practice as irregular but did not go so far as to hold that it was fatal to the validity of the appeal. At pages 4-5 his Lordship said:
“Order 69 of the High Court Rules says that non-compliance with any of the High Court Rules or any rule of practice in force is not fatal to any proceedings, unless the Court says so. However, such proceedings may be set aside in full or in part as irregular, or amended, or otherwise dealt with in such manner and upon such terms as the Court thinks fit. I do not think that non-compliance with Order 69 of the High Court Rules can kill an appeal that reaches the High Court by direct route together with the appeal fee.
...any departure from that procedure is not fatal to an appeal if that appeal is directly filed in the High Court and the appeal fee paid therein within 3 months as specified in section 256(3) above.”
His Lordship directed that the appeal be re-routed through the Clerk (Secretary) to the WCLAC.
Application to this case
It is my respectful view that what Kabui J. said in Dick and Dennie v. North New Georgia Timber Corporation and Others (supra) is on all fours with this case. The facts are similar. The Notice of Appeal was filed on time on 24th May 2002 at the High Court Registry with a copy faxed to the Clerk to WCLAC and received on the same day. Despite various non-compliances complained of by the Respondents, I am not satisfied any of them are fatal to the validity of the Notice of Appeal as filed.
Submissions of the Respondents
The statutory right of appeal from the CLAC to the High Court is provided for by s. 256(3) of the Act:
“Any person aggrieved by any order or decision of a customary land appeal court may within three months from the date of such order or decision, appeal therefrom to the High Court on the ground that such decision or order is erroneous in point of law (which for this purpose shall not include a point of customary law) or on the ground of failure to comply with any procedural requirement of any written law.”
Section 256(3) provides that in order for any ground of appeal to be valid, it has to show that the order or decision of the CLAC is erroneous in point of law and/or fails to comply with any procedural requirement of any written law. If an appeal ground fails to raise an error of law or breach of any procedural requirement of any written law then it may be struck out. Rule 2(2) of Order 60A of the Rules, further provides:
“No ground which is vague or general in terms or which discloses no reasonable ground of appeal claiming that the decision is erroneous in law or that there was a failure to comply with the procedural requirement of a written law shall be permitted, and any ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the Registrar or the Court of his or its own motion or on application by the respondent.” (Emphasis added)
The power to strike out an appeal ground therefore may be exercised if an appeal is:
(a) vague;
(b) general in terms; or
(c) discloses no reasonable ground of appeal.
Apart from that statutory power to strike out an appeal, the Respondents also rely on the inherent jurisdiction of this court as a superior court of record with unlimited original jurisdiction exercising appellate jurisdiction and powers to strike out an appeal that is incompetent: Aviagents Ltd v. Balstravest Investments Ltd[2]; as well to strike out any notice of appeal on the ground that it is frivolous, vexatious or an abuse of the process of the court: Burgess v. Stafford Hotel Ltd[3].
Grounds 1, 2 and 3 of the Notice of Appeal
Grounds 1, 2 and 3 of the Notice of Appeal read:
The Respondents object to these three grounds of appeal as vague, indecipherable, incomprehensible, general and inelegant. They submit that the grounds are ill defined and impermissible. Learned Counsel Mr. Moti for the Respondents cites in support the definitions given in Oxford Advanced Learner’s Dictionary[4] in respect of the expressions “vague” and “general”.
The Respondents submit that the Appellant’s complaint, that the WCLAC “wrongly took into account irrelevant considerations”, is a classic illustration of a ground of appeal, which is “vague or general in terms”.
Mr. Hou for the Appellants on the other hand submits that the appeal grounds were adequate and sufficient to raise a legal inference or to afford the ground for relief arising from an error in law and or any failure to comply with any procedural requirement of any written law. Learned Counsel submits that the facts pleaded were sufficient to support the contentions put forward. Counsel relied on the comments of Lord Denning in Karsales (Harrow) Ltd v. Wallis[5] that it would be sufficient where the material facts had been pleaded irrespective of whether they had been inaccurately or incompletely pleaded.
Unfortunately, the comments of Lord Denning in Karsales (Harrow) Ltd v. Wallis (supra) are distinguishable on their facts. In Karsales (Harrow) Ltd v. Wallis (supra) at the very least the material facts had been pleaded, that is, sufficient particulars had been provided; not so in this case! To say, that the WCLAC “wrongly took into account irrelevant considerations” without more, is indeed vague or general in terms. The Appellants are required to provide sufficient particulars of the irrelevant considerations relied on in the ground of appeal. What were the irrelevant considerations wrongly taken into account by the WCLAC and which gave rise to an error of law or procedure?
But even if it might be argued that the irrelevant considerations referred to were the obiter dicta comments of Muria CJ in LAC No. 12 of 1996, when the context of his Lordship’s judgment is taken into account, it is clear they cannot by any standards be regarded as irrelevant considerations. To the contrary, they were material considerations, which the WCLAC was obliged to take cognizance of. This ground therefore must fail for not meeting the requirements of a reasonable ground of appeal.
The second objection taken by the Respondents to ground 1 of the Notice of Appeal is in respect of the allegation that the WCLAC wrongly gave undue weight to the said obiter dicta of Muria CJ in LAC 12 of 1996 at page 3 paragraph 2, and wrongly using that as the basis for holding that there was no proof of ground 1 of the appeal (this was the appeal before the WCLAC).
Ground 1 of the appeal grounds of the Appellants before the WCLAC read as follows:
“The appellant appeals against the decision on the grounds that the decision is contrary to the resolution of the court”.
The Appellants had filed in support of this ground the affidavits of the two local court justices who were members of the Vella La Vella Local Court which sat to determine the dispute between the parties. Those two local court justices had deposed in their affidavits that they were not part of the decision making process which awarded the decision in favour of the Respondents, and denied signing the said Local Court’s decision of 19th December 1995. They say that as a result of that affidavit evidence the decision of the Local Court was unreliable and wrong and should not have been accepted by the WCLAC.
In his submissions before the WCLAC however, Mr. Sibisopere, who was the spokesman for the Respondents pointed out that the signatures in both documents (that is the Local Court judgment and affidavits) were similar. He also pointed out that the status of those affidavit evidence had been the subject of a decision of his Lordship Muria CJ in LAC No. 12 of 1996, judgment delivered on 11th December 1997. Muria CJ had condemned the actions of the two local court justices as improper and disrespectful to the integrity of the court and had directed that such practice should be stopped.
In its judgment, the WCLAC said:
“By yielding, and to our amazement, the two signatures on both documents are comparatively similar in style and form. Whatever motivated the 2 justices to have done what they did will remain a mystery. The Local court president was not intended to called by the court, and the fact that the local court clerk responsible for keeping records of the court proceedings had demised. The reason for not doing so, was absorbent of valuable time of the court, and the fact that the High Court had ruled that this practice must ceased therefrom.”
It then concluded as follows:
“What else more can be contemplated from this court. The High Court had said it all. Therefore decided that this ground carries no prove, (sic) hence, must dismiss it accordingly.”
Mr. Moti submits that the assertion of the Appellants (that the WCLAC wrongly gave undue weight to the obiter dicta of Muria CJ in LAC No. 12 of 1996 at page 3 paragraph 2), failed to answer the description of a “reasonable” ground of appeal. Learned Counsel points out that there is no issue of law or of any procedural requirement of any written law in Solomon Islands, which expressly or impliedly prohibits the WCLAC from relying on the “obiter dicta” of the Chief Justice of the High Court. Rather the principle of “stare decisis” dictates adherence to the approach commendably followed by the WCLAC.
The appeal ground, that the WCLAC wrongly gave undue weight to the said obiter dicta of Muria CJ in LAC 12 of 1996 at page 3 paragraph 2 and wrongly using that as the basis for holding that there was no proof of ground 1 of the appeal (this was the appeal before the WCLAC) in my respectful view is misconceived. It seems to arise from a misunderstanding or a misconstruction of the “obiter dicta” of Muria CJ as being inconclusive and indecisive. Unfortunately that is not the case. His Lordship had conclusively dealt with the status of the affidavits of those two local court justices by pointing out clearly that they should not be relied on! To that extent the WCLAC was bound to take that ruling or decision into account, which it did. It could not be said therefore that the WCLAC committed an error of law by wrongly giving too much weight to it. In fact they were obliged to take it into account and to make their decision in accordance with that finding, which they did. No reasonable ground of appeal therefore arises from that assertion.
In a similar case Nanette Tutua and Shane Tutua v. Simeon Nano & The Marovo Local Court[6], the Local Court Justices had denied the accuracy of their judgment alleging that the Local Court Clerk had made the decision of the local court without their concurrence. This Court also condemned the practice as wrong, prejudicial and an embarrassment to the administration of justice in the country but held in that case that it would not be proper in the circumstances to allow the decision of the Local Court to remain. The purported decision of the local court had been clearly tarnished by the affidavits of all three members of the local court (note the composition of the local courts is three members). The difference with this case is that only two members of the local court had deposed that they were not part of the decision making process which was not accepted by his Lordship in his judgment:
“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.” (at page 7 of Muria CJ’s judgment in LAC. No. 12 of 1996)
Having ruled that those two affidavits should not be accepted, plain common sense but more importantly the requirements of justice demand that no reliance or weight whatsoever should be placed on them. If the Appellants were not happy with the findings of Muria CJ in LAC No. 12 of 1996, they should have appealed that decision. The ground of appeal on this particular issue therefore has no basis in law.
But even if there may be some basis for allowing such complaint to be considered, it is pertinent to bear in mind that when it comes to the question of the relative weight to be attached to a particular matter, these are usually confined to matters of evidence, which are always questions of fact, and not law. To that extent, the WCLAC was entitled to attach such weight as it considered appropriate, whether it be little or much without committing any error of law.
The third objection raised against grounds 1, 2 and 3 of the Notice of Appeal was that it was erroneous to say that the obiter dicta of the Chief Justice was an irrelevant consideration and thereby given undue weight. Rather it was a matter, which the WCLAC was bound to consider.
Learned Counsel Moti is correct in his submissions. I have already canvassed this issue in this judgment. It is wrong to classify his Lordship’s statements as “obiter dicta”. His findings or ruling on those two affidavits formed one of the main reasons for overturning the decision of the WCLAC and remitting it back to be heard de novo. To that extent, it was erroneous and improper to describe his Lordship’s “obiter dicta” as an irrelevant consideration, which the WCLAC wrongly took into account and gave undue weight to. How could the WCLAC wrongly take into account a relevant consideration and give undue weight to it? Clearly it was a relevant consideration, which the WCLAC was obliged to consider and in so doing, the weight it attaches is a matter within its discretion alone to determine. To that extent, it also fails to meet the description of a reasonable ground of appeal.
The fourth objection raised was that to the extent that the Appellants expressly or impliedly question this Court’s earlier decision in LAC No. 12 of 1996, are disguised as an appeal from that decision contrary to the stipulations of sections 256(4) and 257(3) and (4) of the Act. Mr. Moti submits that the attempt to involve this court in the re-agitation of matters, which it had already conclusively determined – on the pretext and pretence of the alleged misattribution of relative weight given by the WCLAC to Muria CJ’s decision – offends constitutional principle. Learned Counsel points out that any appeal ground that invites the court to review, interpret and clarify Muria CJ’s earlier decision in the context of these proceedings between the same parties concerning exactly the same issues subverts established constitutional principles. Mr. Moti submits this is frivolous, vexatious and an abuse of the process of the court.
Mr. Hou on the other hand submits that what was actually being challenged in those grounds of appeal was the alleged “error” in the “obiter dicta” statement of Muria CJ relied on by the WCLAC.
Unfortunately, to describe the “obiter dicta” of Muria CJ as an alleged “error” or to assert that it was wrong for the WCLAC to rely on that “obiter dicta” on the basis of giving undue weight to it is but tantamount to questioning the earlier determination of this Court in LAC No. 12 of 1996 before this court, which is impermissible. His Lordship had ruled that the affidavits of those two local court justices were not to be relied on. If, as correctly submitted by Mr. Moti, the Appellant had not agreed with that ruling or considered it to be erroneous, they should have appealed. In failing to appeal that decision, it is not open to them now to question it by way of appeal in this matter. The parties are bound by his Lordship’s ruling and cannot now complain.
The fifth objection raised by the Respondents seeks to reiterate the fact that the appeal ground (being that “The Appellant appeals against the decision on the grounds that the decision is contrary to the resolution of the court”) which had been the subject of the appeal before the WCLAC had been considered sufficiently and covered extensively in the judgment of Muria CJ in LAC 12 of 1996 and thereby finally and conclusively determined by the High Court. The WCLAC therefore was correct in rejecting the Appellant’s pleas for re-agitation of that issue.
I have already canvassed this issue in this judgment pointing out that the actions of the WCLAC cannot be described as wrong when all they had done was to make a decision consistent with the earlier finding of this Court in LAC No. 12 of 1996 and which they were bound to comply with in any event. Their actions could not have amounted to any error of law or procedure.
Breaches of natural justice and rights to a fair hearing
In appeal grounds 2 and 3 of the Notice of Appeal, the Appellant raised issues alleging breaches of the rules of natural justice, section 10(8) of the Constitution and rights to a fair hearing. Mr. Moti however points out that such breaches could have been remedied under section 18 of the Constitution and Order 61 of the Rules. Learned Counsel also points out the distinction between errors and irregularities in the “decision-making process” amenable to “judicial review” under this Court’s “supervisory jurisdiction” and errors of law apparent on the face of the “decision”, which are capable of correction by this court in exercise of its “appellate jurisdiction”. Mr. Moti points out that insofar as those issues relate to the “decision-making process” of the WCLAC, the appropriate course of action would be by way of judicial review and not by appeal. Learned Counsel cited a number of cases: John Sina v. John Mark Matupiko[7], John Sina v. John Mark Matupiko[8] and Benjamin Bosokuru v. Jeriel Maefa’asia[9], in support of his submissions.
The Appellant faces a difficult task in trying to show that by wrongly taking into account or giving undue weight to the “obiter dicta” of Muria CJ, that this was unfair, prejudicial and biased, and amounted to a contravention of the rules of natural justice. I need not re-canvass the points earlier raised which also applies to this submission, that this hardly answers to a reasonable ground of appeal, as well as being vague and general in terms.
The same can be said in respect of the allegations of breaches to section 10(8) of the Constitution. Asserting that wrongly taking into account or giving undue weight to the obiter dicta of Muria CJ amounts to being unfair, prejudicial and biased and a breach of section 10(8) of the Constitution, can hardly be described as amounting to any reasonable ground of appeal, apart from its vagueness and generality.
Grounds 6 and 7 of the Notice of Appeal
The Respondents object to these grounds also as vague and general apart from the fact that the complaint about the “Plaintiffs witnesses” not being allowed to give evidence is unintelligible. They say that the WCLAC was bound by the earlier decision of the High Court and thereby precluded from hearing anything, which any of the local court justices might have to say about the authenticity of their decision. There is neither principle of law nor any procedural requirement of any written law authorizing the WCLAC to hear such testimony from local court justices. The appropriate forum for vindication and punishment of such judicial conduct does not lie with the WCLAC whose jurisdiction is appellate and commensurate with the powers of a local court (section 255(4) of the Act). The WCLAC does not have supervisory powers. The proper course of action to take would have been by way of prerogative writ of certiorari to quash the decision of the local court.
Appeal Ground 6 assumes that there are legal or procedural requirements, which require the WCLAC to permit the two local court justices to give evidence. Unfortunately the Appellants cannot point to any such requirement, which authorizes the WCLAC to hear their testimony, and in failing to do so thereby committed an error of law.
Secondly, the decision whether to require the two local court justices or the President of the Local Court to give evidence is a procedural matter solely within the discretion of the WCLAC to decide upon. The CLAC does not have any regulations, which govern its proceedings. It regulates its own proceedings, which includes the calling of witnesses. Davis C.J. adverted to this in Samuel Kuku v. Naisi Luna[10]. I quote:
“No regulations have been made governing the proceedings of the Customary Land Appeal Courts. Section 231A(4) [Section 255(4) of the Act] alone provides that a Customary Land Appeal Court shall have and may exercise all the powers of a Local Court. In these circumstances in my view a Customary Land Appeal Court has at present untrammelled jurisdiction to regulate its own procedure in hearing appeals and it is entirely within the discretion of the court to allow the parties before it to call witnesses. No objection was raised by the Appellant to the calling by the Respondent of two witnesses in the Customary Land Appeal Court. I find no merit in this ground of appeal and it is accordingly rejected.”
It is entirely within the discretion of the court to allow the parties before it to call witnesses or to decline any such applications. In this particular instance, it seems that an application was made by the Appellants for those two witnesses or the Local Court President to be called. The WCLAC however refused; a decision entirely within its discretion to make. Unless it can be shown that the exercise of this discretion was unlawful or unprocedural, this court will not interfere. Further, it is unusual for the party producing the affidavit evidence to make application for its deponents to give evidence. That would have been a matter for the opposing party to do for purposes of cross-examining the deponents to those affidavits and where necessary to adduce evidence in rebuttal. The WCLAC was perfectly entitled to decline to allow those two witnesses to be called as the High Court had already ruled on the status of their affidavit evidence. The effect of that ruling meant that the judgment of the Local Court was left intact which meant in turn that it was not necessary to call the President to give evidence decision. This appeal ground therefore must be dismissed for failing to answer the requirement for a reasonable ground of appeal.
Appeal ground 7 is in two parts. The first part alleges that the WCLAC committed an error of law when it held that the signatures of the two local court justices were similar to the signatures on the handwritten Local Court judgment. The second part alleges that it was wrong to admit and receive the said handwritten Local court judgment in evidence. Unfortunately, I fail to see how the comparison made by the WCLAC can ever amount to an error of law. It was an observation, which the WCLAC was not only entitled to make in the circumstances, but to attach such weight they consider in their discretion to be appropriate. Secondly, that observation did not comprise the main reason for the rejection of the evidence of those two witnesses. The main reason for the rejection of their affidavit evidence was based on the decision of the High Court in LAC No. 12 of 1996. The observations of the WCLAC therefore would not have had any effect on the ultimate decision of the WCLAC to reject the affidavit evidence of those two local court justices and for that matter could not have amounted to any error of law or procedure.
As to the second part of Ground 7, that the WCLAC wrongly admitted and received the said handwritten Local Court judgment, there is nothing wrong in law or procedure about the WCLAC taking judicial notice of a Local Court judgment. Accordingly, this appeal ground is misconceived and must also be dismissed as not disclosing any reasonable ground of appeal.
Grounds 4 and 5
The Respondents also object to these two grounds of appeal for vagueness and generality. They say they are tautologous and riddled with confusion.
The Appellants on the other hand submit that the decision of the WCLAC to allow witnesses to be called before it should have been confined to that directed by the High Court. They rely on the statements of Daly CJ in Temasuu v. Taupongi[11] in which his Lordship said:
“...The CLAC does not rehear the case in full but considers the record and submissions upon it. It can hear new evidence if it wishes but an application should be made to call such evidence and that application should show good reason why the evidence was not called in the Local Court.”
They submit that it would be wrong to deliberately keep a witness for an appeal. The evidence, which the Respondents wish to be called should have been confined only to the production of handwritten notes made by Sibisopere before the Vella La Vella Local Court. Any other evidence adduced should have been excluded.
The Appellants complaint can be summed up as follows. They say that Sibisopere should not have been permitted to give fresh, new and additional sworn evidence. By failing to stop him, the WCLAC committed an error of law. His evidence they say should have been confined only to matters omitted by the Local Court record.
That the CLAC controls its own procedures (see Samuel Kuku v. Naisi Luna[12]), including the rights of parties to call witnesses before the CLAC, is without dispute. The comments of Daly CJ in Temasuu v. Taupongi (ibid) do provide some useful guidelines on the manner of calling witnesses. They are however general comments, which should be applied on a case-by-case basis.
In the context of this case, it is not in dispute that Sibisopere was permitted to adduce evidence with regards to the Local Court records. Sibisopere had argued successfully in the High Court in LAC No.12 1996, that the records of the Vella La Vella Court as kept by the Local Court Clerk were incomplete and therefore he should be permitted to adduce evidence of his hand written notes to supplement those records. The High Court had ruled in his favour and directed that evidence of his notes be made available to the WCLAC for its consideration. It was primarily for that purpose that he had been permitted to adduce evidence before the WCLAC.
The first point to note about the complaint of the Appellants is that they should have objected during the hearing before the WCLAC when they noticed that Sibisopere was adducing fresh, new and additional evidence. By not objecting, they must be deemed to have waived their rights. Also on the same token the fact that the WCLAC did not stop him from adducing such evidence does not necessarily mean that an error of law or procedure had been committed!
Secondly, even if they had not objected during the time when Sibisopere was giving his evidence, they still had opportunity to do so before the WCLAC retired to consider its decision, for those offensive parts of his evidence be excluded. Again they did not do that.
Thirdly, even if assuming that they had objected to the offensive bits of Sibisopere’s evidence and the WCLAC had over-ruled, they could still have applied to the court to call evidence in rebuttal. Again they did not do that.
Fourthly, this complaint must also be dismissed on the grounds of vagueness. The ground of appeal refers to “fresh, new and additional evidence” but did not provide particulars and how it amounted to an error of law or procedure. What was the “fresh, new and additional evidence” objected to by the Appellants and in what way did it amount to an error of law or procedure? The mere act of adducing “fresh, new and additional evidence” does not necessarily mean that an error of law or of procedure had been committed. That “fresh, new and additional evidence” may have been completely irrelevant to the proceedings before the court and for that matter may have not made one iota of difference whether it was considered by the WCLAC or not! It may even have been completely ignored by the WCLAC in decision-making. On the other hand, if it had been relevant to the issues before the WCLAC during the appeal hearing, then the Appellants should have spelled out how it amounted to an error of law? If it was prejudicial or unfair to their claims, why didn’t they object in the first place; why didn’t they ask the WCLAC to stop Mr. Sibisopere from adducing such evidence, or why didn’t they ask to be given opportunity to adduce evidence in rebuttal?
Finally, apart from vagueness this ground of appeal must also be dismissed as failing to amount to any reasonable ground of appeal. Whether the WCLAC permitted the Respondents to adduce fresh, new and additional evidence or not and whether it took that additional evidence into account or not is a matter entirely within its discretion; a fortiori in the circumstances of this case where there had been no objection from the Appellants.
Ground 5
Ground 5 of the appeal is in two parts: (1) that the phrase used by Muria CJ in LAC 12 of 1996 at page 4 paragraph 1: “...with no objection from the Respondents” was ambiguous; and (2) in permitting the hand written notes of Sibisopere to be used without direction, the WCLAC erred and misdirected itself as to the correct and intended meaning of that phrase.
With respect Ground 5 is a classic example complained of by the Respondents where a final decision of this court in LAC No. 12 of 1996 is being questioned under the guise of an appeal. If the Appellants were dissatisfied with that phrase (“with no objection from the Respondents”) as ambiguous, they should have filed an appeal to the Court of Appeal. They had not done that and therefore cannot now be permitted to question it under the guise of this appeal. Any appeal ground that seeks to ask this court to review, interpret or clarify an earlier decision between the same parties concerning exactly the same issues subverts constitutional principles (see section 77(2) of the Constitution and Rao v. Director of Public Prosecutions[13] cited by Counsel Moti in his written submissions).
Secondly, any suggestions that the uncontrolled direction and use of the hand written notes of Sibisopere caused a misdirection and resulted in an error of law, also fails to meet the requirements of a reasonable ground of appeal, apart from the fact it is also vague and general. The observations of his Lordship Muria CJ in his judgment in LAC No. 12 of 1996, page 4, paragraph 1, that the hand written notes of Sibisopere were allowed to be used without objection from the Appellants (Respondents in that case), were not ambiguous. It was as a result of his Lordship’s ruling that those hand written notes were permitted to be used as evidence, to supplement the court records of the Vella La Vella Local Court as taken down by the Clerk. The time to object to the use of those notes was during the hearing before the WCLAC, and insofar as they relate to allegations of misdirection, particulars should have been provided as to the manner in which such misdirection amounted to an error of law or procedure. To simply say that the phrase “...with no objection from the Respondents” was supposed to mean nothing more than that the record of the Local Court was incomplete, is anything but expressing the obvious. It was an obvious fact, which the High Court had found in LAC No. 12 of 1996, that the Vella La Vella Local Court records were incomplete hence the order permitting Mr. Sibisopere to adduce evidence of his notes to supplement the local court records. How could the WCLAC have misdirected itself about the correct and intended meaning of the phrase “with no objection from the Respondents”? Respectfully I fail to find anything erroneous in law or any written procedural requirement, which the WCLAC had fallen foul of over that phrase. I am satisfied this ground must also be struck out for the reasons given above.
Ground 8
The Respondents attack this ground on the same basis of “vagueness” and “generality” as expounded in the previous grounds. They say there is no written or unwritten requirement of law or procedure governing the consideration and attribution of “weight” to the “submissions” of parties to any litigation. This ground pertains to factual, evidentiary or discretionary matters, which are properly within the jurisdictional competence of the WCLAC and thereby precluded from appeal under section 256(3) of the Act.
The Appellants on the other hand submit that failing to give due weight or insufficient weight is an issue of law, which properly ought to be investigated by the Court during the hearing of the appeal. They rely on what Lord Denning M.R. said in Ward v. James[14]:
“The Court of Appeal will interfere with the exercise by a judge of his discretion, e.g. over mode of trial. If he has given no weight, or has given insufficient weight, to the considerations that ought to have weighed with him.”
It is trite law that failing to give due weight to a relevant consideration [see Ward v. James (supra)], or drawing an inference which cannot reasonably be drawn (Instrumatic Ltd v. Supabras Ltd[15]), raises issues of law. Ground 8 nevertheless must fail on the grounds of “vagueness” and “generality” as submitted by the Respondents. A mere reference to “submissions” of the appellants without more is too vague and general. What “submissions” of the Appellant did the WCLAC fail to take into account or failed to give due weight to? The statement of Lord Denning in Ward v. James (supra) relied on by the Appellants is distinguishable. His Lordship’s comments referred to “considerations that ought to have weighed with him”. The reference to “considerations” in my respectful view relate to considerations that are identifiable, not considerations in general, which is the case here. For instance, if the WCLAC failed to take into account a relevant consideration, or took into account an irrelevant consideration then that “consideration” should be sufficiently particularized, otherwise the reference to “consideration” is meaningless.
In this instance, where the complaint is that the WCLAC failed to take into account or failed to give due weight to the “submissions” of the appellants, it is incumbent upon the Appellants to identify the “submissions” with sufficient particularity so that the Respondents know what case they have to meet in the appeal. It is important to bear in mind that to assert that the WCLAC failed to take into account the “submissions” of the appellants or to give due weight to their “submissions” is not the same as the more common situation where the WCLAC may have indeed considered (taken into account) the submissions of the Appellants but either rejected them or attached little weight to them. The former gives rise to legal consequences but not the latter. In my respectful view, simply referring to the “submissions” of the appellants without more is inadequate, vague and general and cannot by any standards be acceptable.
Ground 9
This ground must also be dismissed for the same reasons given under Ground 8. It is tautologous, vague and general. It is but another way of saying that the WCLAC failed to take into account or give due weight to the evidence of the Appellants and thereby committed an error of law by making a decision which no reasonable tribunal would have made.
The use of the word “evidence” without more in my respectful view also suffers the same defects of vagueness and generality. The word “evidence” is a generic word. Unless it is particularized it remains vague and general. Merely asserting that a judgment is against the weight of evidence in my respectful view is insufficient. The appeal ground must specify what particular evidence has not been taken into account, which has given rise to the error of law complained of.
Conclusion
In the circumstances, all the grounds of appeal of the Appellants must be dismissed with costs.
Orders of the Court:
The Court
[1] Unreported, HCSI CC No. 313 of 1995, 24/6/02 per Kabui J.
[2] [1966] 1 All ER 450 at 452 – 453
[3] [1990] 3 All ER 222
[4] AS Hornby (ed) 5th edition, OUP, 1995.
[5] [1956] EWCA Civ 4; [1956] 2 All ER 866 at 869 para. E
[6] HCSI CC No. 65 of 2002, 26th April 2002
[7] unreported, HCSI CC No. 82 of 2001, 6/9/01
[8] unreported, HCSI CC No. 82 of 2001, 6/11/01
[9] unreported, HCSI CC No. 310 of 2002, 7/2/03
[10] unreported, HCSI LAC No. 2 of 1979, 28/04/08
[11] [1983] SILR 103 at 105
[12] unreported, HCSI LAC No. 2 of 1979, 28/04/08 per Davis CJ)
[13] [1987] LRC (Const) 400, 409 – 410
[14] [1965] 1 All E.R. 563
[15] [1969] 1 WLR 519
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