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High Court of Solomon Islands |
HIGH COURT OF SOLOMON ISLANDS
Civil Case Number 194-03
JOSEPH AMA
(REPRESENTING ISAIAH MALU, MARTHA BUSI, HIMSELF
AND MEMBERS OF THE VIHUVUNAGI TRIBE)
V.
FRANCIS SESI, JAMES BAKO, DRUMMOND ROROI,
AND THE ATTORNEY-GENERAL (REPRESENTING THE GAO/BUGOTU LOCAL COURT AND ISABEL CUSTOMARY LAND APPEAL COURT)
Hearing: 26 September 2005
Judgement: 15th February 2006
D. Tigulu for the Plaintiffs
Francis Sesi in person
James Bako no appearance
Drummond Roroi no appearance
M. Hauri’i for the Fourth Defendants
Palmer CJ.: This is an action by Joseph Ama ("Ama") on behalf of his Vihuvunagi tribe to rectify a fraud alleged to have been perpetrated by Kikolo Thavinago in the Gao/Bugoto Local Court Case No. 7/77 ("LC 7/77"). The parties in that case were Isaiah Malu v. Kikolo Thavinago. The hearing took place at Poro Village, Gao District, Isabel Province on or about 17th June 1977. According to the record of proceedings of that Court, the members consisted of S. Tango as the President, D. Tafuselo and F. Zaku as members and Drummond Roroi ("Roroi") as the Court Clerk.
Ama alleges in his claim that that court case was a sham, a fraud from the outset and that the judgement should be brought up to this court by Writ of Certiorari and quashed.
He does not deny that a court hearing was convened at that time. He alleges however that no proper summons was ever served regarding any notice of hearing of that case; it was fixed at very short notice. He alleges that Isaiah Malu ("Malu") who is his uncle[1] and his mother Martha Busi ("Martha") happened to be present at Poro village to attend to a different land case[2] when they were informed about the hearing. Malu says they went to Poro to be witnesses for Martin Gigiha in a land dispute case between Martin Gigiha and Francis Sesi. They heard about the land dispute on the evening of the 16th June 1977 when it was announced that a land dispute case was to be heard between Kikolo Thavinago ("Thavinago") and him. He says he had no time to prepare for that case. Despite protesting the case proceeded resulting in him having to do the best he could in the circumstances. Following the hearing, no decision was ever made. No survey or visit was ever made of the site as well. He says he returned to Nagolau on 17th July 1977 but could not be provided with a copy of any decision. Despite the absence of a decision, Martha did try to make attempts to lodge an appeal to the Customary Land Appeal Court.
The Local Court President John Bogese and the Court Clerk George Otoia of the District Central Magistrate’s Court did make attempts to obtain copy of the decision in 1979 but to no avail.
They say that no decision was ever published that they were aware of until it was brought to their attention in another civil suit in Civil Case No. 305-02[3] in February 2003, which resulted in Ama’s claim being struck out on the basis of the existence of that Local Court decision in favour of Thavinago over the Garanga/Lageba land.
Both Francis Sesi and James Bako have been included as Defendants as they represent the same interests which Thavinago won in that case. Roroi is sued in his capacity as the Local Court Clerk in that case and for the part he played in the fraud alleged.
Since discovery of that judgement, Ama had undertaken extensive investigation and inquiry into it and commenced this action in August 2003 by way of Originating Summons but which at the direction of this court been converted to writ action.
There are two critical parts to claim of the Plaintiff. The first relates to a jurisdictional issue challenging the composition of the Local Court which heard the case and fraud.
On the issue of jurisdiction, it is alleged that the third member, Daniel Tafuselo ("Tafuselo") was never present at the hearing and did not sit as one of the members of that Local Court; a valid local court therefore could not have been comprised. For a valid local court to be constituted it requires a minimum of three members plus the Local Court Clerk.
On the issue of fraud, the particulars pleaded can be summarised as follows.
Was a judgement delivered in LC 7/77 and when?
There is no evidence to indicate the date when judgement was delivered apart from the claim of Sesi that judgment was delivered on 18th June 1977. The court records and judgment which normally should indicate when judgment was delivered did not contain any such records. Instead they merely state that the appeal period was from date of court proceeding. This is quite unusual and irregular. First, Roroi should know as a trained clerk how to record judgements especially when it comes to questions of appeal. The law states that the right of appeal runs from date of decision or order[4]. Secondly, giving notice of and having judgment delivered in public is central to what independence, transparency and fairness of the judiciary is all about. Court processes and hearings are public events, open to the public from beginning to end unless specific reasons are given why some court processes may be held in camera. The time and date of a judgment, giving notice and delivering judgement in public are important matters.
Although the records seem to imply that judgment was delivered after the hearing, Roroi in his affidavit of 20 September 2004, did not support or confirm Sesi’s claims. Rather, Roroi says that after the decision was prepared, agreed to and signed, he made copies available for distribution and gave them to the Area Constable, Joseph Atkin ("Atkin") to serve on the parties. "I then made copies available for distribution. The envelopes were then handed to the area constable referred to above for service."[5] Nowhere in his affidavit did he say that the decision was delivered the next day 18th June 1977 before copies were distributed. The gist of his evidence is that no judgment was ever delivered in open court; it was distributed by the Area Constable. Not only was the approach in delivering judgment wrong but it shows the confused manner in which that case was dealt with. His evidence and that of Sesi do not correspond. Even Atkin did not say what happened to those so-called decisions! Did he deliver them, if so, when, where and to whom? None of the Plaintiff’s side ever remembers receiving or mentioning anything about receiving any such decision from Atkin. If the judgement was delivered on the 18th June 1977 why did it take so long to be published? Even Sesi did not state when he received a copy of that judgement. He said judgment was delivered on the 18th June but did not say when he received a copy of that judgment. Was it also on the same day?
George Otoia, the Court Clerk of the Central District Magistrates Court based in Honiara in the period 1977 to 1980 recalls writing at least two letters in 1979 to Roroi requiring him to forward copies of the records of proceedings and judgement to him. In his second letter written on 18 June 1979 he went as far as threatening to send the Police to investigate him in an attempt to get him to send copies. In the meantime, after waiting for so long for copy of the judgement, Martha lodged a notice of intention to appeal to the Customary Land Appeal Court (Central) and a court file opened. It was never processed and listed for hearing it seems because no court records ever reached the Central District Magistrates Court for the appeal papers to be prepared. Again if what Sesi says is correct, how come no records could be located and why even George Otoia could not obtain any copies of such decision?
Another witness John Bogese ("Bogese") relied on by the Plaintiff was a former Local Court President for the East Isabel Local Court. He replaced Silas Tango who was the President of the Gao/Bugotu Local Court that heard LC 7/77. Silas Tango passed away shortly after that court hearing in July 1977 it seems. Bogese was not appointed President until June 1978 as his replacement. Bogese also raised concerns about the irregularities in the way the hearing over the Garanga/Lageba land had been conducted, in his letter of 5 March 1979 addressed to the District Magistrate Central. He pointed out in his letter that in an earlier case in March 1977 between Rebecca Fugo (mother of Kikolo Thavinago) and Isaiah Malu it was claimed that Malu had won that case and yet no decision had ever been produced. Reference to that earlier case was made in the hearing in June 1977 between Malu and Thavinago because the parties and the dispute were the same but it appears it was ignored. Bogese also confirms that by March 1979 he was not aware of any decision having been released. Again it is strange that even the Court President of that local court in 1979 could not locate any decision of LC 7/77 if indeed a decision had been given on the 18th June 1977.
The issue of publication of that decision was further compounded by the express denial of Tafuselo that he took part in the hearing or decision making of that case. His evidence is supported by Margaret Toroali who confirms that he was not present at the court hearing. She says she was present at Poro village at that time and was aware of the plan by Thavinago to open a case in respect of Lageba/Garanga land. She says she was the one who provided the court fee at that time of $10.00. Sesi disputes this saying he had paid for the court fees two weeks earlier and that Tafuselo was present as one of the justices in that court hearing. It is somewhat unfortunate none of those deponents were required to be cross-examined on their affidavit evidence.
The crucial question however remains how a copy of the records of proceedings and judgement ever got published, when and where. It remains a mystery which no one has been able to satisfactorily account for; not even Roroi or Sesi.
I am satisfied on the evidence before me that the Plaintiff has shown to the required standard that no decision in LC 7/77 was delivered in open court as recorded in the judgement; an essential requirement for purposes of appeal. Secondly, as a result of that failure, the Plaintiff has been prejudiced regarding exercise of his right of appeal. Thirdly, although a decision did eventually surface, it did not come to the attention of Malu and Martha until February 2003; some 23 years later. Neither Roroi or Atkin nor any of the Defendants have produced evidence to support the claim that the decision was delivered on 18th June 1977 and or that it was ever brought to their attention on or about that time. The Defendants have neither disclosed in their evidence when they obtained possession of copy of such judgment, where and from whom. Fourthly, the delay in the delivery of that judgement is inordinate and inexcusable. When one looks at the contents of the judgement, it contains nothing more than a finding and an order that read as follows:
"Judgement: The Court found Not Liable.
Decision: Ordered K. Thavinago and his original clan to owned the land being disputed. I. Malu the defendant to ask K. Thavinago for a development if he wish to. Also ordered I. Malu to appeal within 3 months from the date of the Court proceeding."
For such a decision to be delayed, in the minimum, of two years and maximum, 23 years, to be unacceptable. It has worked nothing but confusion, frustration and injustice.
The evidence in support of the allegations of the Plaintiff in this case is overwhelming. The evidence of the Defendants on the other hand has been inconsistent, vague and ambiguous and simply unreliable. I am satisfied the Plaintiff has proven to the required standard, that the judgement was never delivered in public or on the 18th June 1977; that no notice was given of date of the judgement and that they were never served with a copy of the decision as alleged by Roroi hence prejudicing their rights of appeal provided for by law.
Ama disputes the accuracy of the records which states that he was the first person to speak. He says it was the plaintiff (Thavinago) and his witnesses in that case who spoke first before he presented his case. The records however showed him speaking first which is irregular. It is always the plaintiff who goes first before the defendant. Such inconsistencies and irregularity which has not been satisfactorily explained does not assist the Defendants case, especially where the publication and issue of copies of that judgment has never been properly accounted for by Roroi.
Ama also denies that Rachel Rarovi, also known as Rachel Rasi ("Rachel") ever giving evidence. His claim has overwhelming support from others who were present or had personal knowledge of her whereabouts at that time and have sworn affidavit evidence to that effect. These include affidavits from Martha (her daughter) and Malu, who confirm she was sick at that time and did not attend the hearing. I am particularly impressed with the evidence of Malu[6] which has been quite specific and detailed regarding the events at that time. For instance, he makes mention of the date (16th June 1977), names of persons who travelled with him at that time to Poro, the time they left Nagolau village and time they arrived at Poro village. He mentions the house they slept in that night etc. He points out that he kept detailed records of the hearing itself, copies of his records which he retains to date. He recorded statements of Thavinago and the names of persons who appeared as his witnesses. He has never been challenged about the details of his evidence or required to be cross examined.
Bogese who was present at Nagolau village also supports their claim that Rachel did not go to Poro village due to illness. He has sworn an affidavit to that effect. Apart from Roroi, Sesi says that Rachel was present but did not go so far to say if she also gave evidence. He did say though that Martha was present and gave evidence on behalf of Malu. This must be contrasted with the direct denial of Martha and other Plaintiff witnesses. None of the Defendants have required any of the Plaintiff’s witnesses to be cross-examined either. In Rachel’s case, either she was present and gave evidence or she was sick and did not attend the hearing at all. There are clear contradictory versions in this matter. If she was not present and Roroi had recorded her as being present, then that is clearly fraudulent. In assessing which version to believe, I bear in mind that the records were never released until extensive time had lapsed. That is not consistent with integrity, transparency and honesty. No satisfactory explanation either has been provided for the delay. Through such inordinate and inexcusable delay the risk of errors, mistakes and false entries being made is accentuated so much so that I cannot be sure so that I am certain that those records accurately reflected what took place that day. There is real doubt in mind that those records were accurate and had not been tampered with.
The Defendants’ case is weakened by the fact that the records of court proceedings were never brought to light it seems until February 2003. No one has ever indicated if they saw those records anytime before that time. Even the Defendants have not disclosed when they obtained those records. Sesi has not disclosed when he saw or obtained those records. Roroi has not provided any explanation why those records took so long to be produced and when he actually had those records eventually produced and filed with the Central District Magistrate’s Court as required by the Court Clerk.
The Plaintiff’s evidence throughout has been consistent, detailed and specific compared to that of the Defendants which continues to be vague, ambiguous and inconsistent. I accept the Plaintiff’s version on this matter that Rachel was not present and that Martha did not give evidence as well.
Malu also says there were others, Isaac Tevu and Muriel Fugo that were present and spoke on behalf of Thavinago but were omitted from the records. He says that Isaac Bukaha ("Bukaha") who spoke on his side was also omitted from the records. Roroi however says that Bukaha spoke in the Kolare Jagi land dispute. If that were the case, then I would have expected a copy of that decision to be produced. Martha points out that she had gone to Poro village to be a witness in that land dispute case between Riko, Gigia and Ronua v. Kikolo Thavinago and Francis Sesi over Nagolau, Kolare and Jagi land dispute when this case was called for hearing. No copy of any record of that decision however has ever been produced. Martha points out that that land dispute case should be No. 6/77. She says she spoke in that case as a witness but not in this case. Her evidence throughout on this has been consistent and clear. Had a copy of that decision been disclosed it would have helped to dispel doubts. No one however seems to have seen a copy of such decision.
That was not the only case that was mentioned and bears no records of any decision ever having been made. The other dispute referred to was a dispute in March 1977 between the same parties Isaiah Malu and Martha Busi of the one part and Marshall Hiro and Rebecca Fugo on the other side. Malu claims that that land dispute was won by him but no decision had ever been released. He says that Thavinago would have been bound by that decision as he was Rebecca Fugo’s eldest son. He pointed out that he questioned why there was another hearing in June in respect of the same land when he had already won the land dispute in March 1977 but no satisfactory explanation was given. There doesn’t appear to have been any copy of that decision released either.
In assessing who to believe in these allegations, again the scales tip against the Defendants in terms of the accuracy of the records and the number of clear specific omissions that have been raised. The way and manner in which the records had been done and produced, the delay and mysterious manner in which they had surfaced with no explanations greatly weaken the Defendant’s case.
Again I find in favour of the Plaintiff in this case in terms of the veracity and accuracy of the records kept by the Court Clerk. I accept his version regarding the omissions and clear errors made in that judgment.
3. Misrepresenting evidence of witnesses who spoke at the hearing.
This ground has already been covered above where it is clear that not only have certain names been included and "evidence" recorded which they never gave in that hearing. It is for the Plaintiff to prove this to the required standard so that I am sure and having considered the affidavit material before me, I am more than satisfied they have discharged that onus. This is fraud in its clearest form, perpetrated by an inexcusable and inordinate delay in the release of what appears on the records to have been a short hearing and a very simple and basic judgment and decision, which would not have warranted such delay.
The judgement merely comprises one sentence "The Court found Not Liable." A delay of not less than two years, maximum twenty three years, to have such judgment written up and released is unacceptable and inexcusable.
4. Falsely recording the name of Daniel Tafuselo as one of the Justices who sat in that case when he never did.
Tafuselo’s denial that he ever participated as a member of the Local Court that heard and determined that case again casts very real and serious doubts about the accuracy of the court records. This is a very serious and specific denial by one of the justices themselves who was recorded as being a member in that court case. If what he says is true then this is also clear evidence of fraud. Apart from Sesi and Roroi who both assert that Tafuselo was present, other witnesses of the Plaintiff all say he was not present. Margaret Toroali, who was 34 years old at that time (now 61 years), supports Tafuselo’s denial that he was not present at Poro at that time. Martha who was also present at that court hearing too does not mention Tafuselo’s name as one of the members of the Local Court. Again no request was ever made to have Tafuselo cross examined in court about his claims and so his denial has virtually gone unchallenged.
Again I find myself agreeing with the Plaintiff’s claims of the basic reason that there is real doubt in my mind about the accuracy of Roroi’s records in view of the inconsistencies in the publication of the decision and the inordinate delay in the publication of the decision. I am more than convinced that the inclusion of his name as one of the presiding members of the Local Court was false and fraudulent.
Fraud
The law on fraud in this jurisdiction has been well settled[7]; fraud is proved "when it is shown that a false representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false".
The facts in this case speak for themselves. Ama has shown and demonstrated in his pleadings and evidence that the records of the LC 7/77 and the judgment which mysteriously surfaced in 2003 simply cannot be allowed to stand. Up until June 1979 in the earliest, no court records of the proceedings or any written judgment was available. Roroi has provided no explanation about those allegations. That would have been some two years after the purported court hearing. He has also provided no satisfactory explanation about that delay. His explanation that the decision was hand written and delivered by the area constable was not only irregular but inconsistent with what Sesi asserts in his affidavit. Such inconsistency is significant. It is clear that something is not right about how such decision was ever released. Roroi is a trained clerk and should know how decisions are to be published. Roroi has said nothing about any decision delivered on 18 June 1977. Even the area constable Joseph Atkin says nothing about delivery of such decision either on the 18th June 1977 or of having served it on anyone.
The Plaintiff has shown that the decision and records were fraught with errors, omissions and inconsistencies, even false entries and recordings so fundamental to the validity and legitimacy of its existence that that decision simply cannot be allowed to remain on the record.
I am more than satisfied, convinced that the Plaintiff has proven fraud regarding the way and manner in which that judgement has been drawn up and published. The classic statement by Lord Denning in Lazarus Estates Ltd v. Beasley[8] applies on all fours to this case:
"No Court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a Court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. This Court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved it vitiates judgments, contracts and all transactions whatsoever."
Composition of the Local Court
Having found in favour of the Plaintiff regarding the question whether Tafuselo was present or not, the second ground under which this judgement cannot be allowed to stand must also be answered in the affirmative. The law requires that three members comprise a valid local court to hear any land dispute case. It has never been suggested there may have been other members present. According to the court records, only three names were mentioned one of which belongs to Tafuselo. If he was not present, then no properly constituted local court could have been comprised and no valid judgment could ever issued. The court hearing therefore would have been a sham from the beginning. On that ground as well, the judgment should also be vitiated.
It has been a long road to justice for the Plaintiff. I am satisfied justice can still be done even after twenty nine years. The orders sought are granted as follows:
The Court.
[1] Isaiah Malu is the brother of Martha Busi (Ama’s mother)
[2] Nagolau, Kolare and Jagi Land Dispute
[3] Joseph Ama v. Isaiah Malu and Others CC 305-02
[4] section 256(1) of the Land and Titles Act [Cap. 133]
[5] see para. 10 of affidavit of Drummond Roroi filed 20 September 2004
[6] see his affidavit filed 13th August 2003
[7] See Derry v. Peek (1889) 14 App. Cases 337 at page 374 adopted by this Court in Henry Ha’aina v. Robert Taloaniwaiau HCSI-CC
331-01, see also Barclays Bank Ltd v. Cole [1966] 3 All. R. R. 948 quoted in R. v. Customary Land Appeal Court (Western) ex parte
Simi Pitakaka 69 at 73.
[8] [1956] All ER 341
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