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High Court of Solomon Islands |
HIGH COURT OF SOLOMON ISLANDS
Civil Appeal Case No. 4 of 1996
ter">JUDE ALFRED KELA
-v- ROBERROBERT WILSON AIORO
="3">Before: Palmer, J
Hearing: 19th August, 1997 - Judgment: 26th September, 1997
Counsel: C. Solosaia for the Appellant; Respondent in person (unrepresented)
PALMER J.:
The Appellant appeals against the orders of the Principal Magistrates' Court (Malaita) on the grounds that:
1. The Local Court in refusing to hear the appellant's complaint when complaint is first registered with required court fees paid, for reasons that court lacks quorum, whilst accepting to hear the Respondent's complaint on the other hand which was registered later despite lacking quorum, amounted to a denial of the appellant's right to be fairly heard, and is a breach of the rule of natural justice.
2. The local court is wrong, when it refused to hear the appellant's complaint regarding the matter arising out of the same set of facts, for reasons that the court has no clerk, whilst allowing to hear the Respondent's complaints which was filed later and based on the same facts, despite the absence of the court clerk.
The first ground raised appears to confuse the concept of the right to be heard and the principles of natural justice in contrast to the right to have his case heard first as opposed to the Respondents' case. The facts appear to be that the Appellant had earlier lodged a claim against the Respondent on the same facts as the claim of the Respondent, but that he had been told that his case could not be heard because no court clerk was available. When the Respondent filed his case later however, it was listed for hearing by the Court ( most likely by the Court President) and heard in the absence of a local court clerk. The Appellant argued that this amounted to a denial of his right to be fairly heard and thereby a breach of the rule of natural justice.
With respect, the right to be heard is quite distinct to the right to have his case heard first. It is an accepted fact that his case as filed first had not been heard in the order filed, but that is different from the notion of having been denied the right to be heard. He has not been denied his right to be heard. All that has happened is that his case as filed had not been given the priority it deserved. It does not mean that he has been deprived of his right to have his case heard. His case can still be listed for hearing by the Local Court, albeit at a later stage. So in reality he has not been deprived of his right to have his case heard at all. Now that the Local Court had heard the Respondents' case, it should go ahead and list the Appellants' claim. What the Local Court should have done in the circumstances was to have both cases heard together. I am satisfied this ground must be dismissed.
The second ground raised appears to have some substance. This is that the Local Court was not properly constituted in the absence of a Local Court Clerk, and that in the circumstances, its deliberations were null and void ab initio. The crucial issue for this Court to determine is whether the absence of the Local Court Clerk in the sitting of the Malaita Local Court on 27th July, 1994 fatal to the orders issued by that Court. In other words, was the constitution of the Malaita Local Court incomplete and therefore its deliberations defective and invalid.
In order to answer this question, we must look at the warrant establishing the Malaita Local Court and the role of the Local Court Clerk as prescribed by law. The Malaita Local Court is set up by Warrant dated 1st July, 1986, Legal Notice No. 46 of 1986. The relevant paragraph (para. 2) reads as follows:
" The constitution of the Court shall be as follows:
(a) The Court shall consist of not more than
(i) 1 President
(ii) 17 Vice-President(s)
(iii) 99 Justices.
(b) The Court may sit to hear a case provided at least three members take part; if no President or Vice-President is taking part, the members shall choose one of their number to be chairman,
(c) In reaching a decision in any case the majority of the members sitting must agree."
From the above Warrant, it is clear that the Malaita Local Court is properly and validly constituted if a President or a Vice-President and any two members sit to hear a case. Where the President or Vice-President is not part of the panel of members, then the members shall choose a chairman from amongst themselves. In the facts of this case, the following justices sat to hear the dispute between the parties:
(1) Lemuel Liolea (Local Court President)
(2) P. Maekiria (Local Court Member)
(3) A. Tofe (Local Court Member).
We have therefore a validly constituted local court sitting on 27th July, 1994, to hear the dispute between the parties. Now the crucial question which this Court must address is whether the absence of a Local Court Clerk in that Court sitting fatal? Section 5 of the Local Courts Act, (Cap. 46) states:
"The Chief Justice shall appoint for each local court a fit and proper person to be the clerk thereof, who shall keep proper minutes and records of all proceedings of the court. The clerk shall be responsible for the collection of all fines imposed by the court and he shall keep such registers and furnish such returns as the Chief Justice may from time to lime prescribe."
The key words there are "clerk" and " who shall keep proper minutes and records of all proceedings of the court". Though the word "clerk" is not defined, his function is clearly spelled out in the same section. It is to keep proper minutes and records of all proceedings of the court. This in my respectful view is more than sufficient to enable us to understand the part a Clerk plays within the Local Court set up. As a Clerk therefore he is expected to be present in the court hearing to record the proceedings of the court. This is the only sure way of keeping proper minutes and records of all proceedings of the court and of fulfilling his stipulated duties. Having said that, there is nothing to stop the President or any member of the Court from keeping their own records. The only problem or caution which must be added is that if the records of the Local Court as kept by the President or any member of Local Court should be challenged in the absence of a Clerk, then ultimately the judgment of the Local Court may have to be set aside in favour of a re-hearing with a Court Clerk present. It is important however to distinguish between record keeping and decision making. The former is done by the Clerk, the latter by the Court. A Local Court Clerk cannot take part in decision making and cannot replace any member of the Local Court to constitute a valid court sitting. The Local Court however (though this must not be encouraged), may be able to make a valid decision in the absence of a Clerk to record the minutes of the proceedings of the court. In such cases where a Clerk is not present to record the proceedings of the Court, unless there are clear allegations against the accuracy and correctness of the minutes and records of proceedings of the Local Court, this Court will not interfere in the decision of a validly constituted Local Court. First and foremost, in the facts of this case, we have a validly constituted Local Court sitting to hear the dispute between the parties on 27th July, 1994. Secondly, some form of records of the proceedings had been kept in any event by the Court; most likely done by the President of the Court. Thirdly, there is no evidence or allegation of impropriety or inaccuracies in the records of proceedings of the Local Court as compiled and forwarded to the Magistrates' Court and this Court. All that has been raised as a ground of appeal is that the Local Court Clerk was not present during the hearing to record the proceedings of the Court and that his absence was fatal to the constitution and decision making power of the Local Court. Whilst I am prepared to accept that this is an anomaly which does not comply with the letter of section 5 of the Local Courts' Act, I am nevertheless not satisfied that it is fatal to the constitution and decision making power of the Local Court, and the decision issued on 27th July, 1994. There is no evidence to suggest or show that that decision was wrong or erroneous in anyway that would warrant the intervention of this Court. Accordingly, I will decline to exercise my discretion in the circumstances of this case to uphold the submission that the decision of the Local Court should be set aside on the ground that no Local Court Clerk was present in the sitting of the Local Court on 27th July, 1994. Having so ruled, nevertheless it should be borne in mind that as a rule of thumb, the Local Court should not sit unless there is a Clerk available to avoid any unnecessary litigation.
ORDERS OF THE COURT: 1. Dismiss appeal.
2. Uphold Orders of the Magistrates Court.
3. Ner for costs will he made aade against the Appellant in that the Respondent did not appear in any event before this Court.
ote><
ALBERT R. PALMER
THE COURT.
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