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Kasi v Sekevolomo [1998] SBHC 123; HCSI-LAC 10 of 1996 (29 September 1998)

IN THE HIGH COURT OF SOLOMON ISLANDS

Land Appeal Case No. 10 of 1996

BERNARD KASI

-v-

STEPHEN SEKEVOLOMO

HIGH COURT OF SOWMON ISLANDS
(PALMER J.)
Land Appeal Case No. 10 of 1996

Hearing: 5th August, 1998
Judgment: 29th September, 1998

Sol-Law for the Appellants
S. Watt for the Respondents

PALMER J.: The parties to this case had disputed the question of ownership of the boundaries of KOQOATOVO LAND and gone through the normal court processes through the Chiefs Committee hearings, the Local Court and the Customary Land Appeal Court (CLAC). I do not have the decision of the Chiefs Committee hearing, but in the Local Court the decision went in favour of the Respondent, Stephen Sekovolomo on behalf of his tribe, the Koqoatovo Tribe.

The matter went on appeal to the CLAC on a number of grounds. I will set out only appeal ground 9 because this is the same ground of appeal raised before this court.

“Mr. Jack provan was a close relative of e plaintiff and he should not have been chosen to be a member of the local court. Jack Proven accompanied the team to survey the area and confirmed to some members of the defendant’s side that he knew very well about the Land area.

When they returned home after the survey, the plaintiff’s mother asked him, “did you see our land”?

This confirmed that Jack Proven was on the side of the Plaintiff The other two members of the Local Court were regarded as too young to be a member of the Local Court and were rejected by the Chiefs.”

[A copy of this appeal ground is annexed to the affidavit of Stephen Sekavolomo filed 2nd September, 1995 and marked Exhibit “SS 1”].

When the matter came before the Customary Land Appeal Court, the transcript of evidence as contained in the record of proceedings showed that the Appellant did not make any submission in support of this ground. Rather, it was the Respondent who had said something about that point.

In its judgment, the CLAC made the following statements concerning this point:

“The Local Court records shows that no objection was raised against this member by the appellant. In doing so, the appellant has forfeited his right of objection and it is therefore not right for him to wait and raised the issue in appeal when the local court decisions was not in his favour.

Other matters raised in appeal point No. 9 are also without merit, Appeal point No. 9 is therefore dismissed and the decision of the Choiseul Local Court is upheld.”

The appeal was dismissed and the decision of the Local Court upheld.

The Appellant appeals against the said order of the CLAC on the grounds that it is either erroneous in law or that there was a failure to comply with the procedural requirement of a written law. The ground relied on in essence is bias as summed up in paragraph 1 of the Notice of Appeal. That ground alleges that because one of the Justices of the Local Court, Jack Provan was a close relative of the Respondent’s mother, Everlyn Riroseko, that his involvement in the proceedings of the Local Court prejudiced the entire proceedings against the Appellant.

In paragraphs 2 and 3 of the Notice of Appeal, the Appellant sought to rely on a conversation alleged to have taken place between the Respondent’s mother and the said Justice at a house at Koreqe Village in the presence of the Court members and parties when they sat down to partake in a meal prepared by the Villagers. Details of the conversation were recorded as follows:

“Respondent’s mother to Local Court Justice: ‘My son you too come with the court party?’

The Justice to Respondent’s mother: ‘Yes mother, I came with them and I saw the place we lived there before.’

Respondent’s mother to the justice: ‘That’s it, you saw our land’.”

In paragraph 3 it is alleged that the nature and manner in which the conversation was made clearly showed a close relationship between the Respondent’s mother and / or the Respondent with the said Justice and demonstrated that a relationship existed between them from childhood. Also that they were members of the same tribe.

The Appellant has filed four affidavits in support of his appeal. These are as follows:

1. Affidavit of Luke Gaveregolomo filed 17th August, 1998;

2. Affidavit of Paul Telovae filed 17th August, 1998;

3. Affidavit of Philip Kaurae filed 17th August, 1998;

4. Affidavit of David Raguvolomo filed 21st August, 1998.

The Appellant relies on the affidavit of Luke Gaveregolomo at paragraph 4; affidavit of Paul Telovae at paragraphs 6, 7 and 8; affidavit of Philip Kaurae at paragraphs 3, 4 and 5; and affidavit of David Raguvolomo at paragraphs 3, 4 and 5.

In essence the substance of the matters deposed to was that a conversation took place between the said Justice and Everlyn Riroseko at Koreqe Village, after which both persons entered a room in privacy and stayed there for about fifteen minutes or so before coming out again. That both persons were related to each other.

In contrast, the Defendant filed five affidavits denying in essence what was alleged; the contents of the conversation alleged and that both persons retired in private to a room alone.

ASSESSMENTS OF THE COURT:

The first point to consider is whether the allegation of bias was actually raised in the CLAC and if not, why? If it was raised before the CLAC, then the next question for this Court to consider is what in law is wrong about its order to dismiss that particular issue.

It is pertinent to note that it is the order of the CLAC that is being appealed against before this Court; that it is erroneous in law.

The evidence placed before this Court showed clearly that the issue was actually put before the CLAC to consider. As described in this judgment, it formed paragraph 9 of the Notice of Appeal of the Appellant.

When the matter came before the CLAC however, not one single comment or submission in support was recorded in the transcript of the record of proceedings of the said Court. No evidence in support was also called (that is, no records of any witnesses evidence). There is also no record of any submission or application made for any witnesses to be called or any submission to that effect and nothing in the records of the CLAC to show that a ruling had been made to the effect that no witnesses were to be called.

In the affidavits of Paul Telovae paragraphs 6 and 7 and Philip Kaurae paragraph 8, it was deposed that a request was made for witnesses to be called in support of ground 9 of the Notice of Appeal but refused. This however seems to be inconsistent with the fact that there is no record of any submission whatsoever having been made in support of that ground. It would seem more logical and reasonable in such circumstances for extensive submission to be made in support of the allegation. The fact that none whatsoever was made and none recorded would seem to point more to the view that the Appellant did not take that ground too seriously. At least it could have been made known in his submissions on this point that he had some witnesses to call in support of his allegations of bias. The total absence of any submission in support of the allegation must be viewed with great caution by this court. Why was this so? Is there a reasonable explanation for this silence?

Allegations of bias are very serious and the courts do not take them lightly. In fact the CLAC was well aware of this fact (see page 1 of the judgment):

“Allegation of bias are serious allegation but which are easy to make. As such those who make such allegation should adduce sufficient evidence to support such allegation.”

The onus is on the person alleging to prove on the balance of probabilities that such allegations have substance, are true and have a prejudicial impact on the case before the Court. That onus is to be discharged before the CLAC, not this Court. To allow the Appellant to re-litigate that issue before this court is an abuse of the court’s process. The issue before this Court is not whether bias had been established on the balance of probabilities, but whether the decision reached by the CLAC was wrong in law or that there had been a failure to comply with the procedural requirement of a written law.

One of the points sought it seems to be raised before this Court is that the Appellants had not been given opportunity by the CLAC to call evidence in support of the said allegation and that therefore it amounted to a denial of the rights of the Appellant to a fair hearing; that is to be given an opportunity to have his case fully argued and heard by the CLAC. To use the American expression, to have his day in court.

Unfortunately, the evidence submitted before this Court, does not convince me on the balance of probabilities that the Appellant had been denied such opportunity. To the contrary, the evidence is more consistent with the expression that the Appellant had had his day in court. The transcript of the record of proceedings showed that the Appellant did not make any submissions whatsoever in support of ground 9. The issues now sought to be canvassed before this court should have been raised before the CLAC for its consideration. That was never done. The crucial question must be asked why? This with respect is a relevant question because a satisfactory explanation must be given which amounts in law to an error being committed or that there had been a failure to comply with the procedural requirement of a written law which had given rise to that omission.

Respectfully no reason or submission had been tendered to demonstrate before me that an error had been committed or a procedural requirement overlooked as the cause for the Appellant’s silence on this particular matter.

The CLAC did not consider the issue of bias it seems under ground 9 because the circumstances pertaining to it were never brought in the first place to the attention of the said Court. Ground 9 of the Notice of Appeal never made clear that the issue of close relationship alleged was related to bias, and that it only became known after the proceedings had been commenced, hence no objection was raised at the start of proceedings. Had this been brought to the attention of the CLAC, they would have been obliged to consider that ground in detail. Unfortunately, the Appellant never sought to expound on his appeal ground. No satisfactory reason in law or in procedure had been provided. It is simply not open to the Appellant therefore to raise this same issue again before this Court in the circumstances. He had had his day in court, but more importantly no error in law or procedure had been shown that would warrant the intervention of this court. The order of the Court was a proper order in the circumstances.

But even if I am to consider the affidavit evidence adduced before me, I cannot be satisfied on the balance of probabilities that the alleged conversation took place, and that even if it did take place, that any such innuendos or conclusions can reasonably be made. The conversation took place in the open in the presence of others. A satisfactory explanation has been tendered. As to the suggestion that Everlyn and Mr. Provan entered a room alone, I find that to be most unlikely and on the evidence before me, I am not convinced, and I doubt if any reasonable tribunal would be convinced either of its truth on the balance of probabilities.

On the issue of the relationship between the Respondent and Mr. Provan and or Everlyn and Mr. Provan, if I am to consider the genealogy submitted as Exhibit “DRl” in the affidavit of David Raguvolomo, filed 21st August, 1998, the following pertinent points can be noted.

First and foremost, it is just not true that Everlyn is related to Jack Provan. The genealogy submitted is not the genealogy of Everlyn and Jack Provan. It is the genealogy of Pelesevaka and Jack Provan. The Respondent therefore is not related to Jack Provan through his mother, Everlyn but rather through his father, Pelesevaka, if that genealogy is true and accepted by the Respondent. The submission therefore that Everlyn is closely related to the said Justice and are members of the same tribe holds no water. But even if Everlyn and Provan were related to each other, I doubt if relations down the line in the fifth generation can be properly described as close relations.

Secondly, the fact that Everlyn and Provan are not related throws more doubt on the veracity of the conversation alleged to have occurred between Provan and Everlyn. They could not have been talking about “our land” or any land that they might have in common as there could not have been any in any event. They do not descend from the same ancestors and so do not have any land in common.

The issue of relationship therefore alleged, on the balance of probabilities, does not show that the said Justice and or the Respondent are closely related to each other such that it may be thought by right-minded persons that in the circumstances, there was a real likelihood of bias on the part of the said Justice. (Metropolitan Properties v Lennon & Others [1968] EWCA Civ 5; (1968) 3 All ER 304, as applied in Talasasa v Paia & Another (1980/81) SILR 93, at page 106). I find too that there is no real suggestion of bias in the circumstances.

4. The Appellant neither knew nor did he have any reason to suspect that the justice was related to the Respondent before and during the hearing of the land dispute until the conversation on 24 August 1996 between the Justice and the Respondent’s mother at Koreqe village. Both the appellant and the justice grew up, lived and worked away from their respect villages for long period of time.

This states nothing new and makes little difference in this appeal. Whilst it is not in dispute that what is alleged came to the knowledge of the Appellant during the hearing of the case, the Appellant nevertheless had all the time in the world to raise or present those matters before the CLAC on appeal, if not in evidence, in submissions. This was never taken advantage of. This is not the case where the Appellant did not have adequate opportunity to present his objection on appeal. He had but perhaps did not do it properly. Unfortunately that is not a ground that would permit him to have another bite or go on that point. He had had his chance, the CLAC considered it and ruled against him based on what had been presented before it (which was, respectfully very little). Unless any error of law or a failure to comply with the procedural requirement of any written law is shown, the Appellant cannot be permitted to have another go before this Court. None had been shown.

5. The Justice failed to disqualify himself on the ground that he was related to one of the parties in the proceedings. The Justice in sitting in these proceedings and participating in the decision prejudice the Appellant’s case.

This is a matter respectfully which should have been canvassed before the CLAC on appeal, not before this court. No satisfactory reason or impediment in law has been provided that would satisfy me that the Appellant should be permitted to raise this issue afresh before me. But even if I am to consider it, the evidence as adduced does not satisfy me on the balance of probabilities that the said Justice is related to one of the parties in the proceedings and if related, not so closely related to even raise any eyebrows. I am not satisfied that his membership of the CLAC would have prejudiced in any way the court proceedings. The real likelihood of bias with respect is so minimal to be of any significance in my respectful view.

6. The learned Justices of the Western Customary Land appeal Court failed to fairly consider the Appellant’s ground of appeal in the court below.

I find this ground ironical. How can the Appellant expect the CLAC to fairly consider his ground of appeal when in the first place he did not bother to present all the relevant facts to the CLAC. There was nothing wrong with the findings of the CLAC. It was a valid finding based on what was put before it under that ground.

7. The clerk of the Customary Land Appeal Court failed in his duty to advise the Court on question of law that there is merit in the appeal from the Choiseul Local Court.

I fail to see how this can be established on the evidence before this Court. To the contrary, the CLAC was well aware of the seriousness of any allegations of bias, but also correctly pointed out that sufficient evidence must be adduced to support such allegation.-In the facts of this case, how can the clerk to the CLAC even advise the Court to consider the merits of the appeal if in the first place little or nothing whatsoever was submitted in support of ground 9 of the appeal.

8. The learned Justices and the legal advisor failed to fairly consider the objection or the merit of the objection which is appellable in itself.

This has already been dealt with in paragraph 6 above.

9. The learned Justices should thus inquired whether the Appellant has evidence to call to support his ground of appeal.

This is the Appellant’s case. It is for him to present his case. How he does it is for him alone to decide. There is no evidence of any records in the Court transcripts whatsoever to support his allegation that any application for witnesses to be called was made. What is also of significance is the fact that not even any submission in support of ground 9 was made that would indicate to the Court the necessity for calling any witnesses. How could the Court assess whether evidence should be called if little or no submission was made in support of the said appeal ground and explanations made as to what exactly was alleged?

The only proper order in the circumstances, in my respectful view, is to have the appeal dismissed with costs.

ORDERS OF THE COURT:

1. DISMISS APPEAL.

2. UPHOLD ORDERS OF THE CUSTOMARY LAND APPEAL COURT.

3. COSTS OF THE RESPONDENT TO BE BORNE BY THE APPELLANT.

ALBERT R. PALMER
THE COURT.