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HIGH COURT OF SOLOMON
ISLANDS
Land Appeal Case No. 17 of 1996
EMILIO LIIOU'OU
v
JOHN SARUHOHOLA
High Court of Solomon Islands
Before : Lungole-Awich, J
Land Appeal Case No: 17 of 1996
<
Date of Hearin/8/99
Date of Judgment: 30/8/99
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A Nori for thellant
P Lavery for the Respondent
(LUNGOLE-AWICH, J):
Background of the Appeal. The appellant, Emilio
Liiou�ou claimed that customary land known as Pwau Liwe, in South Malaita,
belonged to him and
his tribe by discovery and first settlement by his
ancestors and subsequent succession down to himself and his tribesmen. The
respondent, Johnson Saruhohola, also claimed Pwau Liwe land for himself and
his tribe by the same ways. It is common
ground that two unrelated tribes
cannot own the same customary land, although one tribe may grant permission
for a non-related
tribe to live on the land and cultivate food crops. The
respondent was the plaintiff at the local Council of Chiefs and at
the
Malaita Local Court for the area. His case was that he was the owner of Pwau
Liwe land and that the appellant's tribe
only settled there with permission,
but in the recent past had �stolen� the land while the respondent was away,
�working for a white man in the
Western Province.�
From the context of the case, the respondent used the expression, had
stolen, to mean that the appellant had acted
inconsistently with the claim
to customary ownership interest of the respondent.
The respondent took the dispute
to the Council of C of the local area. According to the statutory form
L LC Civil 3,
dated "10-12 July 1991" filed at the Malaita Customary Land
Appeal Court, the chiefs heard evidence such as succession
down according to
genealogy, relevant in deciding ownership of customary land. Their decision
was that Johnson Saruhohola
owned Pwau Liwe land, Emilio Liiou�ou did not.
Under s.12 of the Local Courts Act, Cap. 19 in the Laws of Solomon Islands,
Chiefs' decision may not be accepted by the parties, in which case the
decision
does not bind them, and so the dispute remains unresolved. The
dispute may then be referred to the Local Court as a court case
whereat it
is in fact dealt with as if it is a new case - see s.13 of the Act. That is
what happened in this case. Emilio
Liiouou did not accept the decision of
the chiefs so Johnson Saruhohola took the case to the Local Court. He won
the
case; the decision of the Local Court dated 4.12.1995, was that Johnson
Saruhohola and not Emilio Liiou�ou, owned Pwau Liwe
land. The decision of a
Local Court is binding unless overturned on appeal. In this case, Emilio
Liiou�ou appealed to
the Malaita Customary Land Appeal Court, the MCLAC. In
its judgment dated 24th August 1996, the MCLAC dismissed
Liiou�ou�s appeal and awarded costs against him. Liiou�ou has appealed to
the High Court.
This is the judgment of the High Court in the appeal.
The Appeal to the Court
and Grounds
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Appeal from Customary Land
Appeal Court to the High Court is entertainevery limited grounds:- see see
ss.256 and 257
of the Land and Titles Act, Cap. 133 of the Laws. Appeal is
available on point of law other than customary law, which really means on
point of statute
law if statute applies in the particular case, for example
when the customary land has since been registered under the Land and Titles
Act. Provisions in the Local Court Act and the Land and Titles Act may also
be points of appeal. Appeal is also available on question of written law of
procedure. Our Court has interpreted
that to include appeal on the ground of
error in not applying the rules of natural justice - see for instance the
case
of Talasasa -v- Paia and Another [1980] SILR 93 in which the law
in the English case of Metropolitan Properties Co (FGC) Ltd -v- Lennon
and Others [1968] EWCA Civ 5; [1968] 3 All ER 304 was adopted and the case of Bade and
Soso -v- Sautuana [1985/86] SILR 56 in which the law as stated in R
-v- Altrincham Justices, Ex Parte Pennington and Another [1975] 2 All ER
78 and other English cases were adopted.
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Appt stated three grounds
of appeal, namely:
�1. &nbbsp;&  CLhe CLAC eLAC eLAC erred in
admitting and relying on the letter written to it by the Local Court Vice
Presidenthonoi, when such a letter cannot and should not have been
admitted and treatedeated as e as evidence;
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2. &nTsp; LAe Crre ein
n not investigating into the Appellant�s allegation of unfair and biased
practice on the
part of the Local Court justices.n>
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3. TAe CL
�s cr icist and and attitude towards the Appellant�s form of appeal had prejudiced
its ability to give
a fair and just determination o Appe�s
ppealpan>
Grounds 1 and 2 are related;
they relate to the same ground of bias that the Local Court President,
Anthony Ramoi was
seen by the appellant, talking to the respondent/plaintiff
in the absence of the Clerk of Court and the other court justices.
The
letter referred to in ground 1 was in answer to the allegation of bias in
ground 2.
Investigating Complaint of Bias
About ground 2, I do not think
that when considering testion of bias, the Court iurt is required to
investigate beyond
the material presented to it, rather it is the parties to
support or discredit the allegation of bias by pointing out the evidence
of
bias or discrediting it. In this case the MCLAC considered the allegation of
bias together with the letter of the
Local Court Vice President, against
whom the allegation was made. Those were the materials made available to
court, I
do not think that the MCLAC was required to do more than that.
Customary Land Appeal Courts and Local Courts are not expected
to follow the
finer unwritten rules of evidence and procedure in the adopted Common Law.
The Rule Against Bias (Natural
Justice)
Sussex Justices, Ex Parte
McCarthy
[1923] EWHC KB 1; [1924] 1 KB
256 stated the rule in a most memorable way. The case was an application to
quash a criminal conviction on a charge of driving
in a manner dangerous to
the public. As required, a Clerk who was a solicitor sat with the presiding
local justices and
retired with them when the justices considered their
verdict. They reached their verdict convicting the defendant/applicant
without the need to ask for technical advice from the Clerk. The applicant
asked that the judgment be quashed because
the Clerk was a member of a firm
of solicitors engaged in civil claims for damages, based on collision, the
subject of
the dangerous driving charge. In quashing the conviction Lord
Hewart CJ stated at page 259, the following passage which included
the most
memorable phrase now well known even to non lawyers; the passage is:
�But while that is so, a
long line of cases shows th is not merely of some impo importance but is of
fundamental importance
that justice should not only be done, but should
manifestly and undoubtedly be seen to be done. The question therefore is not
whether in this case the deputy clerk made any observation or offered any
criticism which he might not properly have
made or offered; the question is
whether he was so related to the case in its civil aspect as to be unfit to
act as clerk
to the justices in the criminal matter. The answer to that
question depends not upon what actually was done but upon what might
appear
to be done. Nothing is to be done which creates even a suspicion that there
has been an improper interference
with the course of justice.�
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Another illustrative English
case is Dimes -v- Grand Junction Canal [1852] EngR 789; [1852] 3 H.L.C 759,
a case in which the rule against bias was said to have been breached
when the Chief Justice presided in a case in which a company
in which he had
substantial shares was a party, although there was no supposition whatsoever
that he acted or decided
the case with bias.
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Affording Opportunity to be
Heard and to Know the Case (Natural Jus
The other component of the rule
of natural justice requires that in deciding disputes the court must ensure
that both
or all parties are heard. The rule includes affording parties
opportunity to know the case against them. It is expressed in
Latin as,
audi alteram partem. The English cases of Local Government Board �v-
Arlidge [1915] AC 120 and Ridge -v- Baldwin [1961] 2 All ER 523,
a case from Malaysia (Asia), Kanda -v- Government of the Federation of
Malay [1962] UKPC 2; [1962] AC 322 and a case from Gambia (Africa), Attorney General
of Gambia -v- N'Jie [1961] 2 All ER 504 all illustrate the rule. In this
jurisdiction, a customary land appeal case in which the rule requiring that
parties
be afforded opportunity to be heard was applied is John Pita -v-
Isaac Qoloni and Leslie Pitisopa, CLAC No.6 of 1996. In the case, my
learned brother, Muria CJ said that reasonable notice of the date of hearing
of the
case had not been given and so the appellant had not been afforded
reasonable opportunity to state his case. The notice was
simply an
announcement on the radio. The rule requiring affording opportunity is not
in issue in this appeal.
Was there an Appearance of Bias
or Even Bias?
On the facts of this the
allegation which, if I take to be evidence, was that the respondent was in
the guest house
when the president of the Local Court was in. There was no
evidence of how the respondent got there. Was he invited by the
Court
President or did he go there uninvited as did the appellant? It is to be
noted that appellant also went to the
guest house and the president allowed
him in and asked both appellant and respondent some questions about the
case. That
questioning outside court proceeding may have been improper, but
nothing was given to Court to suggest that it was done in
a way that gave
the impression of bias. There in fact has been no evidence as to whether the
president and the respondent
actually were in discussion at all in the guest
house. Unfortunately it often happens in this jurisdiction that parties try
to get near or even into common chat with unsuspecting justices. Sometimes
judges even discover that they have shared
guest houses with parties. In
many villages there is just the one guest house for all visitors. Moreover,
if the appellant
perceived bias, he had, right at the commencement of the
Local Court proceeding, opportunity to object to Justice Ramoi presiding
in
the case. The Local Court in fact specifically commenced its proceeding with
asking parties for any objection to any
of the justices sitting. That is now
the standard practice of the Local Courts and Customary Land Appeal Courts.
It was
instead the respondent who objected to one of the justices, although
the respondent later withdrew the objection. Absence of
objection to
presiding justice at trial was an important consideration in the decision of
Ward CJ in the case of Talasasa -v- Paia, cited earlier. In my view
when a party alleges bias, he must produce sufficient evidence to support
it, but once sufficiently
supported, bias will operate to vitiate the
decision of the Court, however free from bias the judgment may appear to be
and however well intentioned the judge may have acted on the occasion, the
subject of the complaint of bias - see Dimes -v- Grand Junction Canal
[1852] EngR 789; 1852] 3 H.L.C. 759 cited earlier. Taking all the facts together,
I do not think there was sufficient evidence of appearance of bias in this
case.
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Actual bias would, of course,
similarly vitiate the trial. From the record, actual bias has not been
exhibited. Both appeal
grounds 1 and 2 about bias are dismissed.
Criticism of the Presentation
of the A Points to MCLAC
The ground of appeal that the
MCLAC's criticism of the presentation of the appeints prejudiced its
d decision is unsupported
by the record. The Court was entitled to point out
to the appellant, and indeed would be appellants, that they were required
to
present their appeal in the way that the Court could easily understand. In
fact it was in their interest that the
court understood their appeal. I have
read the lengthy appeal points which had many deletions and long handwritten
additions.
The appeal points included submissions. It must have taken a very
long time for the MCLAC to identify which points were left
for it to
consider; it certainly took me a long time. I have not found in the record
that the criticism of the MCLAC
influenced its final decision. Ground 3 is
also dismissed.
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Order Dismissing Appeal
The result of the appeal is
that it is dismissed. Appe is to pay the costs of thef the appeal.
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Delivered this Monday the 30
day of August 1999
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Sam Lungole-Awich
Judge
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