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Pusi v Leni [1997] SBHC 100; HCSI-CC 218 of 1995 (14 February 1997)

CC 218 95 HC

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 218 of 1995

REMISIO PUSI
(on behalf of himself and his family)

-v-

JAMES LENI, BEN ALI, JACOB MAIKE and DANIEL MAIKE

High Court of Solomon Islands
(Muria, CJ.)
Civil Case No. 218 of 1995

Hearing: 15 July 1996
Judgment: 14 February 1997

P. Lavery for the Applicant
D. Hou for the Respondents

MURIA CJ: The applicant comes to this court seeking redress as set out in the originating summons filed on behalf of himself and his family. He seeks the following redress, namely:

(a) A declaration that the decision on 12 September 1994 of Koliae Village Chiefs committee comprising or including the respondents is null and void.

(b) Compensation for breach of the applicant’s constitutional rights.

The applicant’s constitutional rights alleged to have been breached by the respondents are also set out in the originating summons. These are:

(a) the right to personal liberty, contrary to section 5;

(b) the right to enjoyment of property, contrary to section 8;

(c) the right to freedom of assembly and association; contrary to section 13; and

(d) the right to freedom of movement, contrary to section 14.

The brief circumstances giving rise to the alleged breaches of the applicant and his family’s constitutional rights are that following a row on 11 September 1994 between two women, the members of the village committee (the respondents) went to the place of the applicant on 12 September with a view to settling that row. What the row was about is in dispute. According to the applicant the row was over the killing of a dog while the respondents said that it was over an area of land where potato vines were growing. On balance I prefer the evidence of the respondents on this aspect of the matter. In any case it matters not whether the dispute was about the killing of a dog or an area of land upon which potato vines were growing. The fact is that on 12 September 1994 an attempt was made to resolve the dispute between the two women at the applicant’s place. The chiefs committee which included the four respondents went to the applicant’s place that day and asked permission to go into his premises. After permission was granted they went into the applicant’s area for the purpose of settling the row between the two women. It was not long after they entered the applicant’s place that the applicant became angry and aggressively shouted offensive language at the members of the chiefs committee, telling them to leave or he would make them “pee.” Again, with regard to the land over which the row was about, the applicant angrily told the members of the chiefs committee that if anyone removed the pegs on the land he would make him “pee” as well. One of the members of the chiefs committee rebuked the applicant and told him that what he did was a very serious matter in custom, particularly, where the insult was directed at the elders of the community. The village elders then left, returning to their village.

The next day the applicant decided to apologise to the elders for what he did to them. He did so by sending his apology through a person named Ben Ali (one of the respondents) whom he met at Lofung. Ben Ali confirmed that he tried to help settle the matter by passing the applicant’s apology to the elders. The elders were not happy with the manner in which the applicant apologised to them as it was not done in the proper customary manner in accordance with the custom of the Alu people. The second time the applicant tried to settle his problem with the chiefs was through the Area Constable, Bernard O’Grady Muina who wrote to the respondents asking them to accept the applicant’s offer of compensation. The respondents refused to accept the Area Constable’s letter on the basis that the applicant must properly settle the matter in accordance with the chiefs and that the matter did not require any involvement by the Area Constable. The third time the applicant tried to settle the matter with the chiefs was through his solicitor who wrote to the respondents asking them to reconsider their decision on banning the applicant from entering Koliae Village. The respondents did not reply to the letter written by the applicant’s solicitor although they maintained that they had not banned the applicant from entering Koliae Village. I shall say a word or two later on the matter of the respondents not replying the letter from the applicant’s solicitor. But now let me turn to the main issue in this case.

Has the applicant been banned to enter Koliae Village?

It is important to ascertain whether the applicant has actually been banned from entering Koliae Village. If he was so banned, then there may well be a necessity to consider whether such a ban amounts to a breach of the applicant’s constitutional rights. If no such ban has been found to exist, then the applicant’s cause for constitutional redress falls flat and that’s the end of the matter.

The applicant’s claim that he was banned from entering Koliae Village comes from himself. He is supported by his brother-in-law, Edward Yee Poy. In addition there are affidavit evidence also sworn by the applicant.

It is submitted by Mr. Lavery on behalf of the applicant that if there was an order banning the applicant from going to Koliae Village, such an order would be unconstitutional and void, as the Chiefs would have no power to make such an order. Counsel correctly posed the question: Was such an order actually made? The answer must undoubtedly turn on the facts as found by the court in this case.

The following facts are not in dispute. It is not disputed that on 12 September 1994, the respondents went to the applicant’s place to settle an argument between two women. Having sought permission they went into the applicant’s area. It was not long after the respondents entered the applicant’s area, that one of the respondents mentioned something to the effect that a boundary to the land would have to be made as there was argument over the land and that a certain path would have to be blocked. It was then that the applicant became angry and told the respondents to get out of his place otherwise he would make them ‘pee’. The applicant swore at the members of the Chiefs Committee (respondents) twice. After some exchange of words the respondents left. The same day, sometime in the afternoon, the applicant, met the second respondent and told the second respondent that he (the applicant), made a mistake by swearing at the Chiefs. In reply the second respondent advised him that all he had to do was to straighten it in accordance with custom. It was the next day that he (applicant) met the second respondent again he asked the second respondent to help him settle the matter. The applicant’s apology and his intention to pay compensation was passed on by the second respondent to the first respondent who refused to accept it on the basis that it was not done in accordance with the custom of the Alu people. Again another attempt to settle the matter was through the Area Constable who wrote to the respondents. That approach was not accepted by the respondents. The third approach through a letter from the applicant’s solicitor was also not accepted by the respondents. Those factual circumstances are not in dispute in this case.

It is also not in dispute that swearing at and publicly insulting the Chiefs or elders of a community is a very serious matter in custom. The offender in such a case must properly atone for his behaviour in accordance with the custom if the matter was to be settled. Again it is not in dispute that the applicant has not yet settled the matter with the Chiefs or the community for that matter in accordance with the custom of the Alu people. We were not told what that custom is but one thing is certain and that is, there has not been any evidence that any form of settlement in custom has taken place as yet.

There was some evidence that the applicant sent his apology and offered to pay $20.00 compensation through message passed through Ben Ali. The respondents regarded that as not the proper manner of settling what he, the applicant, had done to them. Certainly there is not one drop of evidence from the applicant (upon whom the burden of proving his claim lies) that he has done anything according to Alu custom to settle his breach of custom.

In his own evidence in-chief, the applicant agrees that he swore at the Chiefs twice, that he realised he was wrong, that he offered only to pay $20.00 and that the respondents refused to accept that as being not acceptable in custom. He accepts that if he wants to freely go to Koliae Village, he must perform his part in custom. He has not done it yet and so he felt he was not allowed into Koliae Village. I think the following extract from his own evidence clearly tells of the picture:

“I offered to give $20.00 compensation

...........................

The second respondent informed me two days later that they did not accept the offer of compensation.

From that I assumed that they still did not accept me to go through their area

................................

He (Edward Yee Poy) told me that I was prohibited from going to Koliae.

So if I go to Koliae I had to pay compensation first.”

In cross-examination by Counsel for the respondents the applicant says:

“Q. When you received words of the ban, you should go and test it?

A. I could try and go to Koliae. But because I swore at the Chiefs and I did not pay compensation yet, I felt it was not good for me to go to Koliae.

I assumed I was still banned.”

About his complaint of not being able to go to cook his copra at the Koliae Plantation, the implication is that the only way to Koliae Plantation is through Koliae Village. That in fact is not true. He could actually go to the plantation by canoe. He agreed to that in his evidence when cross-examined by Counsel for the respondents:

Q: Can you paddle to Koliae plantation?

A. Yes.

But I had to travel far. I don’t want to do that.

Apart from the fact that the applicant has conceded committing a serious breach of the custom of the Alu people (he himself being one of them) it is plain in my view of the facts that he has not been prepared to properly atone for what he had done. Having not done so, one can only see the rationale behind his not being able to pass through Koliae.

There is the compliant that when one Peter Buare died at Koliae he (the applicant) could not attend. His argument was that, he could not attend because he was banned. But consider what the applicant says in his evidence in-chief:

“I have a brother-in-law named Peter Buare who died at Koliae.

I could not attend his burial.

Jerry Buare asked me to come down to pay my last respect to Peter.

Jerry sent the message that I should bring the compensation money.

I did not go.”

Firstly, there is the clear evidence that the applicant could not be said to be the subject of a banning order. A respected elder of Koliae, Jerry Buare, asked him to come to Koliae to pay his last respect to his brother-in-law. Secondly, knowing very well the existence of the conflict between the applicant and Chiefs of Koliae, Jerry Buare did what was plainly proper in custom, that is, to ask the applicant to bring with him the compensation money, so that settlement could be made there and then with the Chiefs. Instead the applicant did not want to go to Koliae. How, one may ask, can it be said that the applicant was banned from going to Koliae if he himself was not willing to go to Koliae, when invited to do so, and to take the opportunity to settle his differences with the Chiefs of Koliae whom he seriously insulted in custom? It is obvious from the evidence that the applicant was reluctant to go Koliae to settle his differences with the Chiefs. Not only that a certain amount of arrogance has been displayed by the applicant in this matter but he clearly shows a lack of respect for the custom.

The evidence of Yee Poy does not at all assist the applicant. If anything, Yee Poy’s evidence is just a reiteration that the Chiefs of Koliae were not pleased by the insult which was a serious breach of custom done to them by the applicant and that proper compensation in accordance with custom was required from the applicant if he was to have a harmonious relationship with the Chiefs of Koliae.

On the other hand, the respondents evidence comes from the first, second and third respondents. In addition there is the evidence from John Bitiai and Wilson Nauva. The evidence of the three respondents together with those of John Bitiai and Wilson Nauva have all one thing in common with the evidence of the applicant and his witness, and that is, they all clearly say that the applicant had committed a serious breach of custom and that the defendant had not yet settled it in accordance with the custom of the Alu people. Further the picture shown by the evidence, not only from the respondents but also from the applicant, is that he had not been able to go to Koliae Village or through Koliae Village because he had not yet settled his differences with the Chiefs of Koliae, not because he was banned from going to Koliae. The overwhelming weight and effect of the evidence does not support the contention that the applicant was banned from going into Koliae.

The custom concerned in this case is not peculiar to Shortland people or Alu people only but it is also similar to many other parts of this tradition-based society of Solomon Islands. The shame and guilt associated with a serious breach of custom, such as the one with which are concerned in this case, are so deep-rooted in the sanctioning process imposed by custom that the offender is obliged to atone for his wrong. Failure to do so would only perpetuate the shame and guilt associated with the breach of custom. The offender may very well feel isolated and unwelcomed. My view of the evidence in this case points to what I have just said. I am firmly of the view and have no doubts whatsoever that had the applicant done what is required of him in custom, we would not be troubled with these proceedings.

The obvious conclusion that the Court comes to is that, the applicant was not and has never been the subject of a banning order from the respondents. On the evidence I find no such order exists against the applicant in this case. I also find on the evidence that the applicant himself has been reluctant to go to Koliae Village not because of any order banning him to do so but precisely because he has not yet atone for his serious breach of custom.

The answer to the question posed must therefore be that the applicant has not and never been banned from entering Koliae Village.

The question of whether the applicant’s constitutional rights have been breached or not depends on the answer to the first question. That question having been decided against the applicant, clearly puts an end to the applicant’s case.

In case it may be argued that the chiefs’ (respondents) insistence that the applicant properly settled the matter in custom and would not accept anything less than what the custom requires for a serious breach of custom could amount to a ban and so would be in breach of the Constitutional rights of the applicant. On the facts and in the circumstances of the present case, that cannot be the case. There is nothing, as far as I can glean from the evidence, that the respondents had done which can be said to be incompatible with the provisions of sections 5, 8, 13 and 14 of the Constitutions. There is no need for me to discuss those provisions, since I have already found that no such ban complained of by the applicant exists in this case.

Lest it may be forgotten by anyone else and those who intend to apply the proper and lawful authority of community leaders with constitutional challenges would be advised not to loose sight of the Preamble of the Constitution as well as section 76 and Schedule 3 to the Constitution. Those provisions clearly embrace the worthiness, the value and effect of customary law in this country. The Constitution itself recognises customary law as part of the law of Solomon Islands and its authority therefore cannot be disregarded. It has evolved from time immemorial and its wisdom has stood the test of time. It is a fallacy to view a constitutional principle or a statutory principle as better than those principles contained in customary law. In my view, one is no better than the other. It is the circumstances in which the principles are applied that vary and one cannot be readily substituted for the other.

I have made those observations because it appears to the Court that this case is a classic example of an attempt to use the Constitution to circumvent the lawful application of custom, a course of action that may well engender disharmony in society. Such a course must not be allowed to flourish in this country.

In this case, as I have found, there has not and never has been a ban imposed on the applicant by the respondents. That being so, the applicant’s application must be put to rest and it is hereby dismissed with costs to be taxed if not agreed.

(GJB MURIA)
CHIEF JUSTICE