Puluhenua v Dorawewe [2011] SBHC 94; HCSI-CC 505 of 2010 (15 September 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS.
(Faukona, J).

Civil Case No. 505 of 2010.

BETWEEN:

MICHAEL PULUHENUA (Deceased)
and MARTIN SUKANIA
Appellants

AND:

ROBINSON DORAWEWE and JOSHUA RAROI
Respondents

Date of Hearing: 6th September 2011.
Date of Decision: 15th September 2011.

Mr D. Marahare for the Appellants.
Mr J. Zama for the Respondents.

JUDGMENT ON APPEAL FROM CLAC (MALAITA) ON ROTA LAND.

Faukona, J: This is an appeal against the determination by the Malaita Customary Land Appeal Court (MCLAC) filed on 10th December 2010. The appeal is in respect of Rota land being customary land located on the South eastern tip of the island of Small Malaita. On 10th September 2010 the MCLAC gave its decision in favour of the Respondents. The Appellants now appeal to this Court. The boundaries attributed to the land are sketchy, for reasons that the lower Courts had not defined the demarcations of the land with clear description. Even the maps which attach to lower Court proceedings do not sufficiently expressed what the actual boundaries are. Nevertheless I noted from the evidence of Mathew Mamani that the disputed area is between haunipoho to tawane.

2. An appeal to this Court is provided for under Section 256(3) of the Land and Titles Act. That section though guarantee, at the same time restrict that an appeal from CLAC to the High Court is limited on the ground that the CLAC decision or order is erroneous in point of law, or failure to comply with any procedural requirement of any written law.

3. Being conscious not to encroach beyond the grounds of law the Appellants filed four grounds of appeal. And they are formulated base on the question of breach of the principles of natural justice and the principle of law against biasness.

Ground 1

4. Ground 1 is contested on the basis of breach of the rule of natural justice. The law on the principle is quite clear. "The rules of natural justice are minimum standards of fair decision making imposed on decision makers who are under a duty to act judicially. All that is demanded of a decision maker is that his decision be made with due regard for the affected parties interest and accordingly be reached without bias and after giving the party a chance to put his case. The rules of natural justice are formulated against bias and the right to a fair hearing[1].

5. Having said that, when a rule of natural justice applies to a specific circumstance in a proceeding, then what are the components of right to be heard? Among many, one which is favourable to this case is right to afford opportunity to be heard and state ones case, entails also the right to give 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, of course once a party has been shown to have been given due notice, then failure to state his case at the time required under the notice will usually result in a matter considering in his absence – see Pita V Qoloni[2]

6. In the case of Liiou'ou V Saruhohola[3] His Lordship Lungole – Awich J applied the principle enunciated in Pita's case above which uphold other foreign authority cases.

7. In this case the appellants argue that they were not served with a reasonable notice of hearing and were not afforded reasonable opportunity to prepare and state their case. Paragraph 8 of Mr Mamani sworn statement filed on 10 December 2010 stated that they have less than two weeks to prepare and put together their arguments and submissions. Mr Zama for the respondents submits that there was ample time given. The service message over Solomon Islands Broadcasting Corporation was read two weeks on 19th August 2010 before the preliminary sitting of MCLAC on 30th August 2010. At the end of the hearing the appellants furnished a well architecture typed submissions.

8. I noted with some sympathy that the appeal to MCLAC took some what ten years before it was finally heard. One reason perhaps, because of the ethnic turmoil that rampage this country at the beginning of the last decade. Whilst it is viewed as quite a lengthy pending period, it also allowed sufficient time for the parties to plan and strategize their evidence. Undoubtedly the relevant documents and appeal itself would have been in possession of the parties well in advance before the hearing date. And that could have assisted the parties plan their case.

9. There is no dispute that service was effected by way of service message through Solomon Islands Broadcasting Corporation, a mode of service which was not disputed. The question is, is twelve days or two weeks sufficient time to prepare a case. Mr Marahare argues by referring to the case of Pita v Qoloni[4] which has similar factual features as this case. However that case has to be distinguished from this case. In Pita's case a service message was said to have been sent in July 1996 for Western Customary Land Appeal Court schedule sitting on 22nd July 1996. The service message was read and broad casted over Solomon Islands Broadcasting Corporation on 18th July 1996. Following the service message the Respondent turned up but not the Appellant. The Western Customary Land Appeal Court proceeded on 22nd July 1996 without the Appellant, and gave its decision on 26th July 1996 quashing the local Court decision.

10. In Pita's case the service message was read three days before the sitting of Western Customary Land Appeal Court. The parties were from Choiseul. The Appellant said he did not hear the service message nor did he receive any notice of the July hearing. In this case the Appellants heard the service message broadcasted over the Solomon Islands Broadcasting Corporation on 19th August 2010. Following the service message the Appellants travelled to Auki and attended the preliminary hearing on 30th August 2010 and actual hearing on 3rd September 2010. Mr Zama submits at the end of the hearing the Appellants submitted a well-documented trial submission in typed and written form. From those facts it is most proper to adjudge that the Appellants were not prejudiced in any way. Twelve or fourteen days are sufficient time to prepare and that had been reflected by the attendance and well-structured typed submissions by the Appellants. Enough time was afforded to the Appellants to prepare their case. I find there is no evidence provided to prove this point, therefore must be dismissed accordingly.

Grounds 2 - 4

11. These grounds accommodate both breached of the principles of natural justice and rules against bias. One component of natural justice is the rule against bias.

12. The principle of rule against bias is premised on the Latin maxim of "nemo judex in causa sua potest" which mean safe guard against legal bias. See Liiou'ou V Saruhohola[5]. Legal bias manifested in two forms. One is the actual bias and secondly is the real likelihood of bias. So often there is mass misunderstanding of the two principles. However it is a requirement based upon two fundamental principles of "no person should be a judge in his own case, and "justice must not only be done but seen to be done".

13. It appears from evidence that biasness alleged was based on the principle of real likelihood of bias. Real likelihood of bias is present whenever a judge has (1) personnel interest in a case before him, or (2) expresses hostility towards one of the parties, or a group which the party belongs. For a finding of a real likely hood of bias to be made the interest or hostility alleged must be specific, and the party alleging must prove the existence of real likelihood of bias. If the burden of proof is successfully discharged, the judge is disqualified and a retrial of the case by another is ordered.

14. In determining the existence of real likelihood of bias the common law Courts have developed three (3) tests with varying of objectivity.

(1) The reasonable suspicion test.

(2) The real likelihood of bias test.

(3) The reasonable man test.

15. A party alleging bias has obligation to proof under one of the tests which apply to his case. Again, at this stage, Counsel has to be cautious or a wrong test will apply to a different set of facts not familiar to his case. However, the allegations in this case are argued on the bases of likelihood of bias, so the test to be applied is real likelihood of bias test.

16. Real likelihood of bias is a subjective test. Where this particular test is applied it is not easy whether by that standard there should be a disqualification. With the high standard required, there ought to be something more than relationship is required. There must be something positively said or done, in regards to the case between the judge and a party during the proceedings, to prove the real likelihood.

17. In the case of Metropolitan Properties Co. (FGC) Ltd V Lannon & others[6] Lord Denning states;

"...in considering whether there was a real likelihood of bias, the Court does not look at the mind of the justice himself or at the mind of the Chairman of the tribunal, or whoever it may be who sits in a judicial Capacity. It does not look to see there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The Court looks at the impression of which would be given to the other people. Even if he was impartial as he could be nevertheless, if right minded persons would think that, in the circumstances there was a real likelihood of bias on his part, then he should not sit"

18. The case of R V Rand[7] Blackburn J refer to the test as;

"Any indirect pecuniary interest, whether small, does disqualify a person from acting as a judge. Where there is a real likelihood that a judge would, from relationship, is bias in favour of one of the parties, would wrong in him to act".

19. In the material text, "Principles of Australia Administrative law, 4th Edition 1971, the authors stated on page 151 paragraph 2;

"Even where interest cannot be shown it is always open to the complainant to show that the decision of the Court or administrative body was vitiated by actual bias towards him, as where personal hostility has been shown, or where there is family relationship with a party, or where there is likelihood of bias because of some other relationship of servant and master. But in such cases as there it seemed to be established by modern cases that there must be shown to be a real likelihood of bias"

20. The test of real likelihood of bias is applied in this jurisdiction in the cases of Maenu V Lamani[8] and Liiou'ou V Saruhohola[9].

21 In applying the test to the allegation that Malaita Customary Land Appeal Court members are related to the Respondents. In particular, that the President's daughter Florence got married to Valentine Dora who is a close relative of the Respondents. I have checked the genealogical table Exhibit MM6 attached to sworn statement of Mr Mamani filed on 18 April 2011.

22. I find it is close, separated by two and three generations apart. The question is, if the marriage was celebrated well before MCLAC sitting on 3rd September 2010, then it is expected that the Appellants would have well versed with. And when they were invited to make objection at the initial stage of the proceedings, they would have objected to. They were given the chance and they objected to one of the members from the Southern region that eventually was ruled out by the court. The appellants were afforded a chance; they failed to object to the President presiding. Why wait until this Court. First opportunity was accorded and yet failed to utilize the chance. It's a horrific excuse to say it was only after the hearing that they knew about it. That is not good enough. It is expected people in nearby villages close to the land knew each other well. It's not a country but a small area. In the case of Talasasa v Paia[10] the court said on page 10 paragraph 2;

"In any event it was open to the Appellant to object to the named members on good grounds at the hearing rather than rely upon the general objection to the court he had earlier made. He did not do so. As Renn Davis C.J said, in Kuku v. Luna (C.L.A.C 2/1979) in similar circumstances, to take such objection on appeal is too late on the day".

23. In the case of Maenu V Lamani[11] the Court found that there was a strong link from Justice Daka through to Jimmy Ratu through to the Respondent by inter marriage and previous Court dealings. The Court also satisfied the way Jimmy Ratu conducted himself at kauri/lolo tambu site portrayed to the Court clearly amount to an attempt to influence the mind of the Court, especially through Justice Daka, his brother in law. Those actions demonstrated a familiarity which right minded people would give the impression that there was a real likelihood of bias.

24. In this case there was nothing demonstrated by the Respondents towards the President, by conduct, behaviour or influence during the proceedings which tantamount to real likelihood of bias. In fact there is no evidence at all to proof any real likelihood of bias. The Appellants were given a chance to object. Unfortunately they let their privilege slipped off. They had chosen to do so. I am satisfied there is no evidence to prove this allegation. Bias did not in fact exist nor did the appearance of it, therefore must be dismissed.

25. The second allegation relates to the issue that the Secretary of MCLAC Mr Davis Vurusu is a close relative of Rose who is married to Banabas Upwe from Sa'a village. I read Mrs Rose Upwe's sworn statement which she affirms that she is from Marovo in the Western Province and Mr Vurusu is from Choiseul. There is no evidence at all to prove this relationship; or is it because they have the same colour of skin indicates they are relatives. They are totally different people, different ethnical background and different languages. This allegation lacks prove and cannot be entertained. It must therefore be dismissed accordingly.

26. Ground 4 has been dealt with together with ground 2 (a) above which is general without any specification. However it is significant to add that the evidence reveal that one of the members comprised of the MCLAC composition was objected at the initial hearing stage. That indicated that the parties were given opportunity to make objections to the composition of the Malaita Customary Land Appeal Court- see page 16 of the appeal record book. To deny now in this appeal is unaccepted. See the case of Talasasa v Paia[12] above. That ground must fail as well and dismissed accordingly.

27. Ground 3 alleged that Malaita Customary Land Appeal Court erred in law for not advising parties on the situations in grounds 2 (a) to (e) before or at the commencement of hearing. In normal practice the President will introduce members, comprising the CLAC composition, their names and where they come from, and then invited parties to make objections – see page 16 of the appeal book. It is the rights of the parties to object any member of the panel. The Court cannot go beyond and examine their genealogy or relationship, whether by marriage or interest link to anyone connected to the land in issue. It is up to the parties who dwell, live, inhabit and cultivate the land to know who dwells, or names of people who occupy the land or who live within the vicinity of the land. That knowledge is expected of the parties and not a business of Court to do so. This allegation does not uphold any bias at all. It is a matter of procedure. As such it must be dismissed.

28. Another issue apart from the grounds raise is adducing new evidence. Again it is a procedural aspect and has nothing to do with any biasness. In practice at the beginning of the proceedings the Court in its introductory note will state that no new evidence is required in Customary Lands Appeal Court proceeding, except in certain circumstances. This simply means that, no new witness is required unless that new evidence will prove a particular point, then that should be allowed.

29. In regards to producing of genealogical table and maps, it's a requirement by the Court. If a party fail to produce those documents in the local Court, they have to produce them at the commencement of Customary Land Appeal Court proceedings. There is nothing new. It is an acceptable practical procedure which had been adopted since the inception of Customary Land Appeal Court. This point of procedure must fail and dismissed as well.

30. In the circumstances, there truly appears no evidence at all to sustain each and every ground of appeal to prompt this court to interfere with the MCLAC decision. Therefore the appeal must be dismissed in its entirety.

Orders of the Court.

1. Appeal is dismissed

2. Cost of the appeal is to be paid to the Respondent.

The Court.

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^[1] Constitutional and administrative law de Smith by street and Brazier 4^th Edition 1981, page 569, para.2.
^[2] [1997] smltc 116; HCSI-CLAC 6 of 1996 (21/12/1997).
^[3] [1999]SBHC 83; HC-LAC 017 of 1996 (30/8/1999).
^[4] Ibid.
^[5] Ibid
^[6] [1968] EWCA Civ 5; [1968] 3 All E.R 304 at page 310 para A.
^[7] [1866] L.R 1 Q.3 230
^[8] [1992] SBHC; HC-LAC 002 of 1992 (1 January 1992).
^[9] Ibid
^[10] (1980) SBHC 2 (1980-1981) SILR 93 (13 October 1980).
^[11] Ibid
^[12] Ibid