Ahikau v Kausimae [2019] SBHC 59; HCSI-CC 489 of 2010 (2 August 2019)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Ahikau v Kausimae
Citation:
Date of decision:	2 August 2019
Parties:	Sir (Late) David Kausimae, Philip Waihunu, Paul Kausimae, Mercy Onahero, Felix Paomae, Romoro
Date of hearing:
Court file number(s):	CC 489 of 2010
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Maina; PJ
On appeal from:	Malaita Customary land Appeal Court
Order:	The appeal is allowed Decision of the CLAC (M) dated 12 November 1990 is hereby quashed Case is remitted to the CLAC (M) to be heard by new constituted CLAC Costs of this appeal to be borne by the parties
Representation:	Mr. M. Ipo for the Appellants Mr. d Marahare for the Respondent
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles Act, s256(3)
Cases cited:	Maenu’u v Lamani [1992] SBHC 87, Metropolitan Properties Co. (F.G.C) Ltd v Lannon and Others [1968] 3, R v Barnsley County Borough Licensing Justice [1960] 2

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 489 of 2010

CHRIS HARISIHARAI AHIKAU, PETER MANEHANISIWA
Appellants

V

SIR (Late) DAVID KAUSIMAE, PHILIP WAIHUNU, PAUL KAUSIMAE, MERCY ONAHERO, FELIX PAOMAE, ROMORO
(Representing Haunihuroasi sub tribe or Clan)

Date of Judgment: 2 August 2019

Mr. M. Ipo for the Appellants
Mr. d Marahare for the Respondent

RULING ON AN APPEAL

Maina PJ
Introduction

The Appellants appealed against the Judgment of the Malaita Customary Land Appeal Court (CLAC) dated September 13^th, 2010 on the ground of bias in the appeal with the right of ownership of Haunihuroasi land.

The Appellants seek for an Order to quash the decision of the CLAC (M) and the case to be remitted to the CLAC (M) for a re-hearing before a different constituted justices and or other orders the court deem fit in the circumstances with costs.

Facts not dispute

The ground of the appeal to CLAC relate to the right of ownership of Haunihuroasi customary land. However in the process of hearing and making the decision by the CLAC, one of the justices, Philip Otoahu who was disqualified to preside over the dispute continued to associate and accommodate with other presided justices at the place and duration at hearing of the said land case. The above fact contains matter now before this court and directly raises the issue.

The Issues

Whether Justice Philip Otoahu who was disqualified to preside in this case but continued to associate and accommodate with the justices who were presiding in the land case during the hearing of the case would amount or create suspicion of bias?

The Law

The Land and Titles Act in section 256(3), provide for an appeal from CLAC to this Court with or 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.

Counsel for the Respondent submits the appeal to the CLAC were on customary matters and were decided by them according to their powers under the law or jurisdiction, therefore this appeal should be struck out. However this appeal relate to the process by acts or relationship of a disqualified justice and justices presiding in the case. This matter as such is bias as alleged and it relate to the law.

This issue of bias has continuously been dealt with by the court in this jurisdiction. In the case Maenu’u v Lamani [1992] SBHC 87; HCSI-LAC 2 of 1992 (22 December 1992) his Lordship Palmer, Judge as he was then, stated when he referred and adopted two (2) tests stated in the case of Metropolitan Properties Co. (F.G.C.) Ltd v Lannon & Others [1968] EWCA Civ 5; [1968] 3 All ER 304 when Lord Denning stated “Whether there is 'a real likelihood of bias”?, and L.J Edmund Davis stated that on a 'reasonable suspicion by right, thinking people on the circumstances that there may have been bias.

His Lordship Palmer stated that the test recognised by Lord Denning is based on 'a real likelihood of bias.' The bid in turn is founded on what right-minded or reasonable people would think in the circumstances. The court must satisfy that there was a real likelihood of bias, and not merely satisfy that was the sort of impression that might reasonably get abroad as stated by Devlin L.J. in the case of R v Barnsley County Borough Licensing Justice [1960] 2 All ER at pages 714, 715.

The second recognised test as stated by His Lordship Palmer is based on a 'reasonable suspicion by right, thinking people on the circumstances that there may have been bias when he quoted L.J Edmund Davis:

"Nor, in my judgment, will the public interest be served if, in the light of all the circumstances as they finally emerge it appears to right thinking people that there are solid grounds for suspecting that a member of the tribunal responsible' for the decision may (however unconsciously) have been biased."

The above tests to the facts applies in this jurisdiction. And it is not dispute or it is a fact that a member of Malaita CLAC who was disqualify to sit at the hearing of this Haunihuroasi customary land. However this disqualified justice continued to associate and accommodate with other presided justices at the place and duration at hearing of the said land case.

I am satisfied the association, accommodation or lived together at the place of hearing with the case’s presiding justices, of course would raise or present a 'reasonable suspicion by right, thinking people on the circumstances or amount to influence and affect the mind of the court. In other words, the right-thinking people would have a reasonable cause to suspect that there was bias and therefore this appeal be allowed.

ORDERS

1. The appeal is allowed,
2. The decision of the CLAC (M) dated 12 November 1990 is hereby quashed,
3. This case is remitted to the CLAC (M) to be heard by new constituted CLAC,
4. Costs of this appeal to be borne by the parties.

THE COURT
Justice Leonard R Maina
Puisne Judge