Maure v Sagevaka [2007] SBHC 115; HCSI CC 336 of 2004 HCFJ 134 of 2007 (27 September 2007)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 336 of 2004

DAVID MAURE

-v-

WILSON P. SAGEVAKA

Date of Hearing: 13 September 2007
Date of Judgment: 27 September 2007

S. Toitona for the Plaintiff
G.K. Suri for the Defendant

JUDGMENT on Land Appeals from the Isabel Customary Land Appeal Court

Brown, J:

1. By three appeal books, David Maure the unsuccessful respondent in the Isabel Customary Land Appeal Court (Appeal Cases 5, 2 & 1 of 2001) appeals against decisions given by the court dated 15 November 2001 affecting East, Central and West Barora Ita customary land at Isabel.

2. In the case of West Barora Ita, the respondent to the appeal is named Nelson Bako. In the other two cases, the respondent was named Wilson P Sagevaka.

3. The Land and Titles Act (Cap. 133) provide for appeals to and from the customary land appeal courts [CLAC]. By s. 256(3) a party aggrieved by an order of the CLAC may within 3 months, appeal to this court where the order is erroneous in point of law.

4. The points of law raise were these (i) that the written decision was not the decision of the court but a document by the Clerk to the CLAC which document does not reflect the common decision of the justices, (ii) that the decision of the 15 November 2001 was posted by the Clerk to the CLAC and received by the plaintiff on the 3 January 2002 [and a second on the 5 February 2002].

5. In so far as the 1st point is concerned the plaintiff tendered affidavits of three sitting members of the CLAC. The tenor of their affidavits was that the decision, the plaintiff says, was in his favour.

6. The 2nd point was raised in the statement of the Clerk, Mr Dwen Tigulu a Magistrate sitting with the other justices. Mr Toitona for the plaintiff points to p. 4 of his statement where Mr. Tigulu states.

"...In most instances I was the justice asking questions...". Mr. Toitona says on the strength of Mr. Tigulu’s statement he played an active part. This was a mistake for, on the authority of Awich J’s ratio in Frank Dia v Nathan Kera (unreported decision cc 30/98) "the practice in the Local Court.... Was for the Clerk to write under direction, the decision is the responsibility of the justices".

7. That aspect may be shortly dealt with for the weakness is, as Mr. Suri points out, the fact that in the CLAC hearing the Magistrate sits with the other justices and is a member of the Court. That point has no validity but it still leaves the issue of the written judgment itself; whether it was a proper reflection of the common decision of the justices or not.

8. By affidavit, George Carlton of Togasalo Village, Ysable Province, the vice president of the Ysable CLAC (who sat on the 3 appeals from the Local Court) said the documentary record of the decision of the 15 November 2001 "were not the true conclusions reached by us". He went on to say that the history of Barora Ita is "well known to us in Ysabel and it belongs to Makara/Rogovo Clan".

9. Mathias Ruamon, another member of the Ysabel CLAC who also sat, said in similar words what the Vice President had said.

10. Paul Kokomana, another member of the CLAC said the same. So of the 5 members, who sat, 3 said the decision did not reflect the common intent of the court. None of the three named members had apparently seen the written decision before it was published by posting it to the concerned parties.

11. This is not a case of functions officio; where the members have discharged their duty and hence their powers of office in respect to the particular determination in that tribunal has come to an end. The decision was not delivered on the day, 15 November; rather the decision was postponed to allow Mr. Tigulu the Magistrate, time to complete writing it. I should say there is evidence that the justices were loath to announce their decision on the 15th for fear of retribution by the unsuccessful parties, so the proposal to adjourn was clearly common to them all. I have had the decision of the Chief Justice, in Solomon Ports Authority v Tarofumana; Solomon Taiyo Ltd v Bera read as authority for finding an obvious breach of S. 10 (9) of the Constitution. The section is concluded in terms requiring such proceedings, including the announcement of the decision to be held in public. The use of the imperative, "shall", (in the absence of agreement otherwise) suggests there is little discretion, if at all. In this case there is nothing for me to base a finding that the parties agreed with the course adopted, rather the evidence suggest the court dictated that course.

12. While the propensity for violence is not merely theoretical, (for the Ma’alu Local Court, North Malaita scattered in disarray in circumstances similar, when delivering a land judgment) the Constitution should be followed to the letter, by (when risk is apprehended) adjourning to another day for delivering of judgment and ensuring by proper means sufficient security, (by police presence or otherwise) so as to uphold the dignity of the court. It should not be subject to threat or intimidation and cannot succumb in this fashion by posting decisions for the very good reason it is contrary to s. 10(9) and tends to denigrate the authority of the court. I suggest the justices may reasonable expect the assistance of the police if they fear a possible breach of the peace.

13. There is, then, plainly an error in law.

14. The other error is that which I dealt with, earlier, for the justices cannot be said to have agreed the terms of the decision when it has not been circulated before publication, for the concurrence and adoption by the justices. That needs be made plain when a written decision is delivered some time after (in public) the conclusion of the hearing. No criticism can be levelled at a court which takes time to consider and write its reasons, but public pronouncement is still expected. It practically should show that the justices have adopted the reasons by affixing their signature, for instance.

15. While the President, Mr. Alfred Koligekegua is named in LAC Nos. 1 & 5 of 2001 for and on behalf of the Court, in fact it appears Mr Tigulu, the Clerk has signed for the President. In certain circumstances that would be acceptable (where the President is unavailable for a time, for instance) but here, the assertion that 3 of the members did not see the reasons and decision before delivery, is made out.

16. The justices who now give evidence on the absence of veracity of the written decision have illustrated that absence by their actions in traversing the matters set out in the decision drafted by Mr. Tigulu, the Clerk to the court. Those denials, now, may reflect on their veracity long after the event of the hearing but should not, Mr. Suri says, affect the CLAC decision.

17. That argument tends to the issue whether the justices of the CLAC are functus, so as to make their comments, now, wholly irrelevant. An analogy may be seen perhaps in a juror in another jurisdiction, saying after the delivery of a verdict that he did not agree with the finding, when the foreman of the jury is asked and must answer, before verdict is the verdict of all the jurers.

18. That is not the case, here, for there is plain evidence the written decision was not seen by at least 3 of the members of the CLAC before it was delivered and they now clearly resile from it.

19. In those circumstances the decision cannot be said to be the decision of the CLAC. (If some members disagreed, they are able to dissent). It fails for that is has not been adopted by them all.

20. The appeal is upheld on both grounds.

21. The proper order of this court then is to bring up and quash the written decisions of the CLAC given on the 15 November 2001 affecting all three areas of Barora Ita. It matters not that the western area has a second respondent to the appeal, as a matter of law, none of the findings can stand.

22. The appeals are remitted back to the CLAC for decision on the material previously heard on the appeals. The written decision should reflect the determination of the justices evidenced by their signatures.

23. The costs of the proceedings shall be met by the Government.

THE COURT

Slip rule:

The Clerk of the previously constituted CLAC is no longer available. The remaining justices shall make up the CLAC with the addition of the appropriate Clerk.

For Clarity, the hearing shall not be a hearing de novo, but the decision shall be found on the material previously heard by the justices.