1985-1986 SILR 55

IN THE HIGH COURT OF SOLOMON ISLANDS

Customary Land Appeal Case No.3 of 1985

RADE AND SOSO

v

SAUTUANA

High Court of Solomon Islands
(Wood C.J.)
Customary Land Appeal Case No.3 of 1985

9 May 1985 at Honiara
Judgment 10 May 1985

Customary Land Appeal - bias - justices to whom appellant had objected suspected of taking part in decision making of court.

Facts:

The appellants appealed against a decision of the Central Islands Customary Land Appeal Court on the ground that two justices objected to by the appellants before the hearing of the case had attended the hearing and had retired with the sitting members of the Court when they adjourned for judgment and thereby took part in the decision making process of the Court.

Held:

1. The appellants did not have to prove that the justices who retired with the sitting members actually took part in the decision making of the Court; the question was would a reasonable person aware of the events reasonably suspect that the two justices who were not members of the Court and who retired to the Rest House with the Court when they adjourned for judgment had taken part in the decision making process.

2. The combination of the facts that the two justices attended the hearing and retired with the bench of justices lead to a suspicion of injustice.

Accordingly, the decision of the Central Islands CLAC was set aside and the case was remitted to a differently constituted CLAC for rehearing.

3. Obiter - The Court recognised the difficulties members of CLAC’s have when touring and residing together in Rest Houses, but when members are objected to they should not attend the hearing of the case and should make alternative arrangements for accommodation until the decision is made.

Cases considered:

R. v. Altrincham Justices, ex parte Pennington and Another (1975)
 2 All E.R. 78
Leary v. National Union of Vehicle Builders (1970) 2 All E.R. 713
R. v. East Kerrier Justices ex parte Mundy
Faneta Sira v. Wairu CLAC 6 of 1978
Talasasa v. Paia (1980/81) SILR 93
Famaea v. Ramoni CLAC 6 of 1984
Irobasi v. Auhere CLAC 3 of 1984
Kamai v. Aldo CLAC 17 of 1982
Manedetea v. Kulagoe CLAC 7 of 1983

Kenneth Brown for the Appellants
Andrew Radclyffe for the Respondents

Wood CJ: This is an appeal from a decision dated November 13, 1984 of the Customary Land Appeal Court for the Central Islands sitting at Tulagi. That Court upheld the decision of the Gela Local Court given on July 23, 1984 awarding the land from Avule to Takadora to Stephen Sautuana and his line/family.

The notice of appeal reads as follows:-

“1. Two members of the Customary Land Appeal Court (Central Islands) to whom the Appellant had objected before the hearing of the case namely Christian Sale and Samuel Balea retired with the sitting members of the said Court after argument was concluded.

Particulars

(a) objection had been made by the Appellants to the said Christian Sale and Samuel Balea on the grounds that –

(i) Christian Sale had lost a previous land case to Charles Luvu (deceased) the brother of the Appellants.

(ii) Samuel Balea had lost a previous land case to the Appellant Edgar Rade. Further a child of Christian Sale is married to the Respondent and Harry Galaegu the father of the Respondent is a close personal friend of Samuel Balea.

2. That in consequence of the above a reasonable observer or bystander would reasonably assume that the said Christian Sale and Samuel Balea took part in the decision making process even though they were not members of the officially constituted court hearing the case judgment having been adjourned to 8.30 a.m. on 13/11/84.”

Ground 2 is the essence of this appeal Ground 1 being a mere statement of fact which is not in issue. Indeed neither the principles of the law involved nor the facts are in issue in this case but simply a matter of whether or not I should uphold the allegation or suggestion made in Ground 2.

The facts before me are that the Central Islands Customary Land Appeal Court sat at Tulagi for approximately a week. There were about eight justices and the clerk/magistrate who were all staying at the Rest House as is the normal practice. Justices Sale and Balea who had been objected to by the appellants some months earlier in July 1984 did not sit on this case but did attend the hearing in the body of the Court and when the justices rose on the afternoon of the November 12, 1984 Justices Sale and Balea accompanied them to the Rest House where they were all staying and remained there for the night. Judgment was given by the Court the following morning.

Mr Brown has submitted a list of six decisions relevant to the question of bias which I will append as a footnote to this judgment. His argument is that the facts before the Court are such that a right minded observer or bystander would think that there was a real likelihood of bias. The bias being that the two justices objected to were likely to have taken part in the decision making process of the Court.

In R. v. Altrincham Justices, ex parte Pennington and Another (1975) 2 All E.R. 78 at page 81 Lord Widgery CJ stated:-

“When an application is made to set aside a decision on the ground of bias, it is of course not necessary to prove that the judicial officer in question was biased. It is enough to show that there is a real likelihood of bias, or at all events that a reasonable person advised of the circumstances might reasonably suspect that the judicial officer was incapable of producing the impartiality and detachment to which I have referred.”

The question posed here is would a reasonable person aware of the events of November 12, 1984 at Tulagi reasonably suspect that the two justices who were not members of the Court and who retired to the Rest House with the Court when they adjourned for judgment had taken part in the decision-making process? The appellants do not have to prove that they did so but only the proposition stated in the last sentence.

Mr Radclyffe for the respondent has argued that as the justices were all there for the purpose of hearing a number of cases and all staying in the normal manner for shelter and food at the official Rest House that there is no real reason to suppose that they discussed this case or influenced the members of the Court in any way.

However in certain situations the Court will set aside a decision if justice has not manifestly been seen to be done and there have been many cases in England where this test has been applied to cases where a clerk to a tribunal has retired with the tribunal and given the impression of participating in its decision. These situations would appear to be closely analagous to the case before me. A fortiori where a person who is not a member of an adjudicating body does in fact take part in the adjudication that body will be acting without jurisdiction inasmuch as it is improperly constituted. Leary v. National Union of Vehicle Builders (1970) 2 All E.R. 713.

In R. v. East Kerrier Justices ex parte Mundy Lord Goddard CJ said:-

“... it is not right that the justices’ clerk should retire with the justices. It has been said over and over again that the decision must be the decision of the justices, not the decision of the justices and their clerks.”

And Devlin J. said in the same case:-

“We are not dealing with a case of actual injustice. We are dealing with an infringement of the rule that justice must not only be done, but must also manifestly appear to be done, and, accordingly we are dealing with matters of form.”

It seems to me on the facts of this case that a reasonable man would think it odd that two justices who had not sat on the bench of justices retired with those who had. I might have been persuaded otherwise by Mr Radclyffe except that in addition the two justices concerned also sat throughout the hearing with the parties. The combination of these two facts, attending the hearing and retiring with the justices, can only lead me to the conclusion that there is a suspicion of an injustice in this case.

I therefore order that the decision of the Central Islands Customary Land Appeal Court dated November 13, 1984 be set aside and order a rehearing before the said Customary Land Appeal Court, such Court to be constituted of different members to those who heard the original appeal.

I would only wish to add that I appreciate the difficulties members of the Customary Land Appeal Court have when touring and residing together at Rest Houses but simple alternative arrangements can be made in those circumstances. In the instant case the two justices need not have attended Court for the hearing and could no doubt have stayed over-night with their “onetalks”. To avoid any misunderstandings I would also note that my remarks concerning “Clerks” and “justices” in the English cases are not the same as the Customary Land Appeal Court justices and their clerks who are also members of the Court whereas in England they are not.

I make no order as to costs.