CC, 314, 99.HC

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No.314 of 1999

LUKE MANI

-v-

JOSEPH TAEGA

High Court of Solomon Islands
(LUNGOLE-AWICH, J)
Civil Case No. 314 of 1999

Hearing: 2nd September 2000
Judgment: 6th October 2000

A Radclyffe for the Applicant
A Nori for the Respondent

JUDGMENT

(LUNGOLE-AWICH, J): The applicant, Mr Luke Mani, has applied for the order if certiorari to remove and quash the judgment of Malaita Local Court dated 2.4.1984, in case No.2 of 1984, and that of Malaita Customary Land Appeal Court dated 11.4.1985, in its appeal case No. 6 of 1985, confirming the judgment of the Local Court. The judgments gave customary right over customary land, “Lagwae Lower lands” to the respondent. The applicant represents his tribe, the Kwakwale of Malaita Island. He relies on fraud which he says was perpetuated by the predecessor of the respondent, Mr Joseph Taega, to obtain the judgments, and on allegation that the respondent's tribe, when faced with a claim in a 1999 Local Court case by some other tribe over the same land area, sought the assistance of the applicant and his tribesmen to stop the Local Court from surveying the land area in question. Mr Taega, the respondent, likewise represents his tribe, the Lagwae of Malaita Island. The dispute over the land area arose when Solmac Ltd harvested and exported timber from the land and distributed royalty payment to “owners” of the land.

The allegations of fraud on which the applicant based his application are the results of deduction from evidence given in the 1984 case between the applicant’s tribe and the respondent's tribe and evidence given in the later case in 1999 in the Local Court, between the respondent's tribe and another tribe, not a party in the 1984/85 case.

Proof and Effect of Fraud

Fraud, whether in criminal law or civil law, is about falsehood to gain unjust advantage. To prove it, the evidence must show that a false representation has been made knowingly, or without belief in its truth or recklessly careless whether it be true or false-see Derry-v-Peek (1839) 14 App. Coso 337 and Barclays Bank Ltd-v-Cole [1966] 3 All ER 948 or [1967] 2 WLR 166. Then it has to be proved that the false representation caused the result complained about. Fraud is good ground for review and issuing of the order if certiorari. There are several English case authorities on the point beginning with R-v-Gillyard [1848] 12 GB 527. A clear statement of the law on the point is in the judgment of Denning L J in a case from England, Lazarus Estates-v-Beasley [1956] 1 All ER 341 in which a statutory tenant claimed that judgment for increased rent was obtained by fraudulent declaration of the statutory landlords. At page 345 Denning L J said:

“We are in this case concerned only with this point: Can the declaration be challenged on the ground that it was false and fraudulent? It can clearly be challenged in the criminal courts. The landlord can be taken before the magistrate and fined £30 (see Sch. 2, para. 6) or he can be prosecuted on indictment, and (if he is an individual) sent to prison (see s.5 of the Perjury Act, 1911). The landlords argued before us that the declaration could not be challenged in the civil courts at all, even though it was false and fraudulent, and that the landlords can recover and keep the increased rent even though it was obtained by fraud. If this argument is correct, the landlords would profit greatly from their fraud. The increase in rent would pay the fine many times over. I cannot accede to this argument for a moment. No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved it vitiates judgment, contracts and all transactions whatsoever;.......”

The practice in the superior courts in England and other Common Law jurisdictions has been for the courts to be disinclined to grant the order of certiorari if the fraud alleged has not been the subject of a conviction for perjury, or confessed to by the respondent or has not been clearly proved-see R-v-Recorder of Leicester ex parte Wood [1947] 1 All ER 417 and R-v-Ashford, Kent Justices ex parte Richley [1955] 2 All ER 604, cases decided in England, and an Australian case, Rejfek-v-McElroy [1965] 112 CLR 8 S.17. An example in this jurisdiction when the High Court granted the order of certiorari based on fraud not the subject of a conviction or a confession is, R-v-Customary Land Appeal Court (Western) ex parte Simi Pitakaka [1985-1986] SILR 69. In the case, learned Chief Justice Wood of this Court decided that there was material fraud in the proceeding at the Customary Land Appeal Court. The fraud was the statement that the respondent needed to call a particular new witness in place of his father who could not be called at trial stage because the father had been taken to the hospital by the witness, the father then died. The witness was allowed to testify. In fact the father was alive. Chief Justice Wood granted the order of certiorari quashing the decision of the Customary Land Appeal Court and directed a rehearing before a differently constituted Customary Land Appeal Court.

It has sometimes been said that once fraud has been proved, the applicant must prove that without the fraudulent representation, that is, without the deliberate falsehood in the facts, the judgment to be reviewed would have been different. A case in point is R -v- Wells Street Metropolitan Stipendiary Magistrate and Another ex parte Goonatilleke [1985] 3 WLR 553, a shoplifting case in London; England. The accused and applicant was the Deputy Commissioner of Police in Sri Lanka; he contended that there was fraud in the evidence given at his trial. I think the statement that it must in addition be proved that without the fraudulent representation the judgment would have been different adds nothing because in proving fraud it must be proved that the falsehood caused the act or the result complained about, in this case, that it caused the judgments to go against the applicant. I think that is what Wood CJ meant when he said at page 73, “...…it is open to this Court to quash the decision of a lower court or tribunal whenever such court or tribunal has been materially misled fry fraudulent assertion.”

Determination on the Facts

In this case the respondent or his predecessor has not been convicted of perjury occasioned in the 1984 case and the appeal therefrom in 1985, and they have not confessed to perpetuating fraud in the evidence they presented in the 1984/85 case. The question to answer is, has the applicant sufficiently proved the fraud he alleges?

Even if I were to take to be true the allegation that in the 1999 case between the respondent and another, not the applicant, the respondent solicited support from the applicant to claim a certain tambu site (a place of spiritual worship) and to prevent survey by the Local Court, I would not find that to amount to evidence of fraud in the 1984/5 case between the applicant and the respondent. There is evidence in the applicant’s own affidavit that the land, the subject of the 1999 case, is a wider land area that included “Lagwae Lower Lands”, described by the respondent as, “Sabitakwai land”, the land in the 1984/85 case, and land beyond.

Moreover, it is for the Local Court and the Customary-Land Appeal Court; not the High Court, to decide the significance of tambu site in customary land rights. It is not apparent from the 1984 and 1985 judgments what the effect of tambu site of the applicant on the land alone might have been in the judgments. If it is further submitted that the allegation proves admission by the respondent of the right of the applicant over the land in the 1984/85 case, then that would be a question of new evidence discovered subsequent to the judgments of the Local Court and of the Customary Land Appeal Court, it would not be ground for review and issuing of the order of certiorari.

The items of evidence of tambu site as appear in the two cases fall short of fraud and they must be viewed in the context that there was evidence for both the applicant and the respondent in the Local Court in 1984 that their tribes had common ancestry or at least related ancestry and may have in the long past come to the land together. It is not for this Court to assess the evidence for credibility. I have pointed out the evidence only to show why I consider that the items of evidence are not sufficient to prove fraud.

The evidence about mode of prayer practised by the applicant is also short of proving fraud on the part of the respondent. His testimony qualified his capacity to offer sacrifice and prayer for Siubongi tribes-people by the statement that he would do so if there was no one in Siubongi to offer sacrifice and prayers on the occasion.

The evidence in the 1984/85 case and the 1999 case about hostility between the applicant's and the respondent's tribes having ceased or not is very far from evidence proving fraud. There may be contradictions in them, but contradictions are not necessarily evidence of fraud.

A relevant point I raised which counsel might have not considered was that if it was sought to vitiate the 1984 judgment and the appeal judgment in 1985, then it was to be proved clearly that there had been falsehood knowingly in the evidence in the 1984/85 case not just that the evidence in the 1984/85 case was divergent to that in the 1999 case; mere proof that the two sets of evidence were divergent could well prove that the falsehood was in the 1999 case, the judgment in which was not the subject of the application for order to quash.

Application Dismissed

In the end I am not persuaded that the trial of the 1984/85 case was tainted with fraud and the judgments of the Local Court and of the Customary Land Appeal Court were the result of fraud. I refuse to grant the order of certiorari and dismiss the application with costs to the respondents.

Pronounced this Friday the 6th day of October 2000
At the High Court
Honiara

Sam Lungole-Awich
Judge