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Reinunu v Usa [2015] SBHC 61; HCSI-CC 453 of 2011 (28 July 2015)

IN THE HIGH COURT OF SOLOMON ISLANDS
(FAUKONA PJ)

Civil Case No. 453 of 2011

BETWEEN:

ONESIMO REINUNU
(Chief and Representative of Kakau-Roha Clan)
Claimant

AND:

SIRIAKO USA
(Chief and Representative of Kakau-Gota and Laukuili Tribe)
First Defendant

AND:

GUADALCANAL LOCAL COURT
Second Defendant

AND:

ATTORNEY GENERAL
Third Defendant

Date of Hearing: 23 March 2015, 21st May 2015
Date of Judgment: 28th July 2015.

Mr G Suri for the Claimant
Mr D Marahare for the First Defendant
Mr D Damilea for the Second and Third Defendants

JUDGMENT ON CLAIM FOR JUDICIAL REVIEW

Faukona J: A claim for judicial review was filed on 9th November 2011. The Claimant seeks six orders in the following terms:

1. (a) An order questioning the decision of the Guadalcanal Local Court dated 7th October 2011 in the matter of Honiata/Rauvuneha Land.

(b) A prohibiting order restraining the Tandai or other Chiefs from further dealing with or inquiring into the Honiata/Rauvuneha Land dispute between the Claimants and the First Defendant.

(c) A mandatory order that the Guadalcanal Local Court, differently constituted, be directed to hear the referral by the First Defendant.

(d) An interim declaration, pursuant to Rule 15.3.5, that until a decision is made on the referral by the First Defendant, the findings of the Tandai Chiefs made on 20th November 2009, following a hearing conducted by the Chiefs from 12th to 14th November 2009, shall prevail.

(e) Further and other such orders the Court deems meet.

(f) Cost against the First and second Defendants.

2. The grounds upon which the claim for judicial review premises are:

(a) The Local Court was biased, and so had breached rules of natural justice.

(b) The Second Defendant erred in a holding that the Tandai House of Chiefs contravened Section 12(1) (b) of the Local Court Act.

(c) The Second Defendant erred in holding that the First Defendant and his part were denied fair trial at the Tandai House of Chiefs Land Dispute Hearing.

3. The Agreed Facts

From 12th to 14th November, a combined Tandai and Sahalu House of Chiefs conducted a hearing into a land dispute between the Claimant and the First Defendant over the ownership of Honiata/Rauvuneha Customary Land. The decision was recorded in an 'unaccepted Settlement Form' dated 20th November 2009.

4. On 7th October 2011, the Guadalcanal Local Court heard a referral by the First Defendant as an aggrieved party. In its decision, the Local Court quashed the decision of the Chiefs and declared it null and void.

5. The reasons published by the Local Court for quashing the findings by the Chiefs are twofold. One of the Chiefs' Hearings conducted at Kavuare from 12th to 14th November 2009 contravened Section 12 of the Local Court Act. And secondly, the first Defendant and his party were denied a fair trial.

6. The Unaccepted Settlement Form and a letter by the First Defendant were received by the Guadalcanal Local Court on 25th October 2010, and as affirmed by the Local Court Clerk in his sworn statement filed on 16th September 2013.

Issues

7. The issue of biasness by the Local Court justice by their overt conduct.

8. Whether the Tandai/Sahalu House of Chiefs entitle to hear and settle the land dispute in the absence of the First Defendant.

9. Whether the Local Court hearing at Tetere was a preliminary hearing or a full hearing of the land dispute.

10. Whether the lodgement of Unaccepted Settlement Form, Minutes of Chief's proceedings and Written Statement by the First Defendant, is sufficient for the Local Court to hold that the Chiefs did not satisfy the requirement of Section 12(1) (b) of the Local Court Act.

Objection/Absence of First Defendant at Chiefs' Hearing

11. There are two major issues under this sub-heading. I will deal with the issue of objection of certain chiefs who comprised the panel of Chiefs, and the objection to the entire Chiefs' panel. First, the word "Chiefs" as defined by Section 11 of the Local Court Act means chiefs or other traditional leaders residing within the locality of the land in dispute and who are recognised as such by both parties to the dispute.

12. The definition is clear and unequivocal. However, recognisance of Chiefs can be a matter subject to certain traditional qualities. He may not be a recognised person in the community and may not possess the qualities as a leader. Or, he may not be selected by the majority of a clan or tribe and may not be traditionally installed. Or that one or some of the members of the panel of chiefs has an interest in the case or close related to the parties. These facts may be seen as a defeat to the rationale expressed in the definition. However, the level of significance as far as work performance is concerned is of paramount importance; to uphold the principle of natural justice and fairness.

13. Should there be objection by any parties to the whole constitution of the panel, or that they did not reside within the locality or in regards to the venue, or against some members whether by a written statement or orally, by practice, has to be made formally. Means the objection must be formally and orally submitted at, and during the sitting of the chiefs. The other parties to the case must also be given the privilege to make submissions. Thereafter, the Chiefs' panel has to consider whether the objections are valid or not. If they find there is validity in the objections, then they will decide to recuse themselves from presiding or a particular member to step aside. If there is no validity in the objections, then the panel of Chiefs will still preside over and proceed with the case.

14. In this case, the First Defendant objected to some or all of the members of the panel by way of a letter and public notices. There is no denial that the Chiefs preceded in the absence of the First Defendant in spite of his objections. There is evidence from Chiefs Bako and Kaoni that the First Defendant was aware of the dates of hearing from 12th to 14th November 2009. The First Defendant was at his village at Poha within Kakabona area. On the days of hearing, he drove past Kovuare Club (where the sitting was conducted) several times and sounded his vehicle horn loudly.

15. The failure by the First Defendant to yield to common practices disadvantaged him from being heard at the Chiefs' hearing. He is obliged to attend to tender to the Chiefs his reasons for objecting them formally and orally. His failure would mean accepting any decision formulated and arrived at by the Chiefs. Subsequently, the Chiefs determined on the evidence available before them which was wholly against the First Defendant.

16. Eventually, by complying with the law, refer this case to the second Defendant for determination.

Absence of First Defendant at Chiefs' Hearing

17. The second issue under this sub-heading based on rationale in law provided by Section 12 (1) (a) which reads, "No Local Court shall have jurisdiction to hear and determine any customary land dispute unless it is satisfied that the parties to the dispute had referred the dispute to the Chiefs."

18. My interpretation of the Section in the case of Majoria –v- Jino[1] was the perception I had in mind, that should one party refers the land dispute to the Chiefs, he will definitely meet the sitting allowance of the Chiefs, their accommodation and their transport from and to their villages. This reasoning was not formulated out of thin air. This is exactly and practically what occurred in the circumstances of one sided hearing entertained by the Chiefs. It is not bribing but where the determination will go is almost inevitable.

19. The administration of the Chiefs' function must be well managed. My suggestion is that once a party consulted the Chiefs' clerk in order to file a land dispute, the proposed other parties ought to be informed accordingly and as well as how much each party will pay to cater for the Chiefs' expenses. It is not a matter that each party could come face to face and filed a land dispute together, that is absolutely out of context. Litigants expect fairness from Chiefs' determination and there should be no gap allowed for suspicion.

20. The Court of Appeal in the same case ruled that there must remain an open route whereby chiefs can make some determination without all parties appearing. That is in my opinion a quick fix selection which does not take account of Sub-section (b) which advocates that solving land dispute must be based on traditional means. What is traditional means is broad in interpretation, however, traditional leaders in Solomon Islands resolved dispute in the presence of all parties, not just one party. That is traditional means in resolving disputes in Solomon Islands.

21. In this case, there is no evidence available as to how the dispute was fixed before the Chiefs, hence not an issue. However, the argument circled around the issue of default provision of s.12 (2) of the Local Courts Act. Mr Suri argues that once Form 1 has been produced and duly signed by two Chiefs, it shall be evidence that all parties to the dispute had referred the dispute to the Chiefs. That in my view is a wrong approach. I agree it is not a deeming provision but to rely on Form 1 as a reflection of reality of what occurred on filing of a case before the Chiefs is a presumption. I have addressed the situation and have suggested a route which can be resolved administratively by the clerk/secretary to the Chiefs to avoid one party filing the case which may be susceptible to suspicion of bribery.

22. In any event, the Court of Appeal by its ruling has flexed the law, whether the ongoing practice prompted any suspicion or not, the route is open and reliance is now depended on the Local Court and its wisdom. With the current trend, it is sad the suspicion and pre-empt decision will continue to prevail. Despite any perceptible irregularity, I do not think the Tandai House of Chiefs contravened s.12 (1) (b) of Local Court Act.

Local Court Hearing, Full or Preliminary Hearing

23. I have read the Ruling of the Guadalcanal Local Court (GLC) dated 7th October 2011. Indeed it contains a challenge to the procedures undertaken by the Chiefs in conducting the Chiefs' hearing on 12th to 14th November 2009 at Kavuare Night Club. Submissions reveal Kavuare Night club was only used for social activities during the night and was unused during the day. The Chiefs therefore decided it was a proper venue for presiding.

24. The issue before the GLC was fourfold, and all contain objections by the First Defendant against the constitution of the Chiefs' panel presiding, the venue, National Parliament Meeting that week and no consultation with the First Defendant in respect of the venue and the composition of the Chiefs. Those issues are supported by s. 12(1) (b) of the Local Court Act.

25. The first thing I noted from the record of the Ruling, and even in submissions, there was no suggestion by the First Defendant to adjourn the hearing to a date that suits his party, may be after Parliament meeting.

26. The second thing I noted is that the four points of objections considered by GLC is part and partial of the requirements of s. 12 (1) (b), that no Local Court shall have jurisdiction to hear and determine any customary land dispute unless it is satisfied that all traditional means of solving the dispute have been exhausted. In fact, the only issues canvassed by s. 12(1) (b) is the composition of the Chiefs' panel and the venue which is encouraged to be at neutral venue at all times.

27. In any event, evidence has confirmed that the Local Court hearing at Tetere was a preliminary one because the first Defendant was yet to lodge his appeal point and full hearing was to be fixed for further dates. That piece of evidence was not denied by the Clerk of the Local Court in his sworn statement.

28. Concerning objection whether in general or against presiding chiefs, have to be made formally and orally at the commencement of the Chiefs' hearing. A letter to the chiefs of the intention is insufficient including a public notice published in social media or in any other form. I have detailed the narrations in paragraphs 11-16 above and I need not repeat myself again.

29. A significant point to note is the jurisdiction of the Local Court in relation to customary land disputes cannot be treated as an appellate court. The Local Court under the Local Court Act has never been accorded on appellate jurisdiction, and must not be treated as one. In fact it is a Court of first instance with all the powers expounded in s.13 of the Act.
30. What could have been done by the Local Court is that after hearing submissions concerning objections, should have made a determined that any objection must be done at the commencement of the Chiefs' hearing because it was an objection against them. And then proceeded further for a full hearing. To reach Local Court stage is a privilege that parties should bail out all their traditional understandings of customary land ownership and call any witness at all, even those called in the chiefs' hearing. If there is anything that the chiefs could not do as surveying the land, the Local Court must take responsibilities. If for some reason the case is reverted according to s.12 (e), it is ideal that some directions have to attach to it. In this case there was nothing as it appears, and the Local Court probably had in mind it was a general reversion.

Biasness by Local Court Justice and Natural Justice

31. The allegation of bias alleged by the Claimant was against one of the Local Court Justices, Mr Basil Savani. It was alleged that the night before the hearing at Lambi on 27th September 2013, Mr Savani was drunk and went to the Claimant's party. Whilst there, he made a statement that the case would be adjourned (tomorrow) because Mr Siriako Usa telephone from Malaysia and requested adjournment. That the decision of the Chiefs was not proper, and so the matter would be adjourned and referred back to the Chiefs. He further mentioned that he was the man who made judgment in every case on Guadalcanal Island.

32. In his own sworn statement filed on 11th November 2013, Mr Savani denied being drunk but admitted he was holding a "SB" can in his hand. He also admitted that he went to the Claimant's party the night before the hearing and told them what is likely to happen at the next day's hearing.

33. On the morrow when the case was called for mention, the Acting President, Mr Charles Manekako stated that the case will adjourn because the Appellant was not present. However, it was not necessary for him because it was a preliminary hearing only and that Mr Siriako must first submit his appeal points. What the Acting President said was affirmed by the Court Clerk, Mr Ngele in his sworn statement.

34. The facts submitted by the Counsel for the Claimant in substantiating the issues of biasness and natural justice are reflected under two different sub-headings. One under "biasness by certain Local Court Justice" and "Local Court Hearing". On the other hand, Counsels for the Defendants focused basically on the procedure the Local Court applied prior and during hearing of the referral.

35. There are a number of pertinent facts and law need to be considered. One of which I have stated earlier that the Local Court is not an appellate court so that appeal points needed to be filed. s.12 (2) and (3) are very clear on the process. To subject the jurisdiction of the Local Court, it is sufficient evidence that a party referring a dispute produces a certificate prescribed in Form 1 together with a written statement setting out the extent that the decision made by the Chiefs is not acceptable and reasons for not accepting the decision. Public at large including Counsels often refer to filing of those documents in the Local Court as appeal, a trend which is absolute and must be deviated from.

36. On the issue of natural justice, the argument was focussed on the fact that the Claimant was unaware that he was to meet the legal argument about procedures at the Local Court. In my opinion, any litigant is expected to confront with legal arguments in respect of procedures, and etc. However, I accept the submissions made by the Counsel for the Defendant that all opportunity was given to the Claimant. If he could not able to argue the legal points of procedure, he should apply for adjournment and seek legal advice. He had waived his right when he said, "he was there to hear what the other party will say". The other party made submissions and then the Claimant was given the privilege to respond and of course, he did made a statement and did not call for or apply for adjournment if he did not know about the Local Court Act. What could have been said by him in the Local Court is now materialised in his sworn statement, may be after legal advice. However, the four issues of which the Local Court had considered were simple and the Claimant should be able to make a reply.

37. On the question of bias, the facts featured in support of the allegation of biased is not disputed. However, what transpired from those facts does not hold and support any real likelihood of bias. But it points to a breach of code of ethical behaviour of a judicial officer. A Local Court justice is a judicial officer and should maintain the integrity and impartiality as an officer of the court and abide with the Code of Ethics at all times. It would be absolutely improper and unacceptable that the behaviour and conduct of one of the justices, Mr Savani to visit the camp of the Claimants and foretold part of the decision and what would happen the next day sitting of the Court. Worst still, he was under the influence of liquor, a fact undisputed. The ruling by the Vice President of the Local Court the next day revealed half the story Mr Savani had already told the Claimant's party the previous night.

38. It would appear the Local Court Justices had in mind before the mention date, that the case be adjourned and had formulated their reasons. Unethically, half of the ruling had already been revealed to the Claimant's party before the actual sitting of the Court. That is absolute breach of judicial code. He should not have sat on the second sitting of the Local Court at Tetere. The Claimant should have objected him presiding because of his unethical and overt conduct, which cannot be accepted by the parties and the judiciary as well. To allow Mr Savani to preside and eventually participated in deciding the preliminary issue was wrong.

39. Judicial ethics are very significant rules that guide the conduct of all judicial officers when performing judicial functions, including members of the Local Courts. Any judicial officer who breaches this code, whatever determination made is subject to review on appeal or by way of claim for judicial review.

40. In the circumstances the Claimant should have objected, and a new justice be selected to preside with the other two. Probably out of ignorance the Court proceeded, and may be at that time the Vice President was not aware of Mr Savani's conduct. In any event, breach of judicial code of ethics is a strong arguable point. If there is proof of any breaches, it will be fatal, and have a negative impact on the decision of the Court. Therefore Mr Savani's breach of judicial code of ethics must affect the decision corporately made by the Local Court at Tetere on 7th October 2011. This Court must therefore intervene to exercise its supervisory powers under Section 84 (1) of the Constitution – See Sina –v- Matupiko[2].

41. The arguments advanced by the Counsel for the Defendants are in the nature of the rule of natural justice indifferent from the core issue pursued by the Claimant. Nonetheless, I am able to glean from the submissions and conclude that there was no breach of the rule of natural justice concerning the conduct of the procedures by the Local Court at Tetere sitting. In spite of that, the breach of judicial ethical code is prevalent and takes precedent over the rule of natural justice. In other words, the procedure adopted in conducting the Hearing was not in any way irregular or out of course. Except the constitution of the panel included one of the members who previously breached judicial code of ethics at the first sitting.
42. Perhaps the only issue that may attract some commentary is the issue that the Claimant was not prepared to argue legal issues in the Local Court, so that he was not given notice of such. I have mentioned earlier in this judgment that the four issues the first Defendant focussed on in the Local Court Hearing were simple and the Claimant should have made a reply. His failure to do so does not nullify the breach of the code of ethics by one justice. That is more serious; proof of such is fatal to the entire conduct of these proceedings.

Meeting requirements of s.12(1) (b) – Local Court Act

43. Section 12(1) (b), Local Court Act provides that no Local Court shall have jurisdiction to hear and determine any customary land dispute unless it is satisfied that all traditional means of solving the dispute have been exhausted. This provision, in my opinion, starts with the dilemma that the land dispute has not been resolved by the Chiefs despite the fact that all traditional means have been applied. As clearly stated, if not impliedly, the Chiefs ought to have applied traditional means of solving the dispute. Hence the requirements that certain procedures, or if not, a unified set of procedures to be applied is not necessary, it plays a minimal part in the processes. And so there is no restriction on the rule of evidence, hearsay rule, or even standard of proof. However, the standard is marked by their traditional belief and understanding of history of the parties in connection to the land by means of how it was inherited. Hence it is of a significant importance that the chiefs or elders who comprise the panel must come from the same locality as the land is situated.

44. What are the traditional means of solving a land dispute? There are many ways. One of which I referred to in the case of Majoria –v- Jino[3], that is, all parties must be present before the chiefs can be able to perform their functions. The rationale behind such proposition is to avoid one party requesting the Chiefs' hearing paid the cost of the sitting including fees, subsistence allowances, transport and accommodation. Secondly, to avoid window shopping for Chiefs of one's choice. However, that has no impact at all now according to the Court of Appeal's ruling in the same case which although their Lordships agreed that is the best way but opted to say there must remain open route for the Chief can make some determination without other party appearing, which is a flexible approach.

45. The other circumstance where the Chiefs can exhaust their traditional means to resolve the land dispute is where the entire chief either has interest in the outcome of the case or related to parties. Therefore, they cannot be able to preside. By utilising the Section provides a way out to avoid impartiality. See Vaekesa –v- Varise House of Chiefs[4]

46. It is in this circumstance perhaps the first Defendant has raised objections. However, the way and the manner in which to raise objection is as I have stated earlier that is in the presence of full Chiefs' Hearing with parties affected. Written objection through letter, media and newspaper does not hold any ground. Objections must be made at full hearing of the Chiefs. Other parties must be given opportunity to reply. The Chiefs will consider whether the objections have merit or not and rule accordingly. This has not been done, and so the First Defendant had not fully utilised the provision in the Local Court to substantiate its reason for reverting the case back to the Chiefs. The problem is that there was no direction given by the Local Court in accordance with s.13 (d) of Local Court Act.

47. Even if there are some valid reasons to do so, the breach of code of ethics by one justice has nullified the whole determination by the Local Court.

48. Mr Suri further argued that the ruling by the Court of Appeal in Majoria –v- Jino[5] had provide a flexible route validating the conduct of one party hearing by the Chiefs. What matters thereafter, is the production of a certification in Form 1 and a lodgement of a written statement. Mr Suri further argues that the statement produced is insufficient hence render fatal to the referral, he refers to the case of Veno –v- Jino[6] and Vaekesa –v- Simbe[7].

49. I agree with Mr Suri's argument that s.12 (2) advocates that those two documents shall be read as sufficient evidence that parties had referred the disputes to the Chiefs and that no decision wholly acceptable to both parties. The requirements under the provision in my opinion, does not so much focussed on the content but on the material form. If there are some facts disclosed being the reasons for not accepting the decisions and to what extent the decision is not accepted, and the Local Court has accepted the statement plus the Form 1; then it is sufficient evidence that requirement under s.12 (a) and (c) had been fulfilled. It is not necessarily that those facts contain in the statement be sufficient to a certain standard before it can be accepted as a proof to fulfil s.12 (1) (a) and (c).

50. In the case of Veno –v- Jino[8], the Court of Appeal stated that sub-section 12(3) is constructed as a mandatory language, that failure to lodge the statement must be fatal to the referral. It further stated that such a certificate not only facilitate proof the requirements have been fulfilled but is the only mode of proving those facts.

51. The Court of Appeal was actually referring to a situation where a party referring the case had failed to lodge a statement; such failure is fatal to the referral. In this case, the First Defendant had lodged a statement which Mr Suri submitted is not sufficient, it does not matter in this case. The certificate according to the Court of Appeal, only facilitate proof that there was a decision made by the Chiefs and the referral party was aggrieved of the decision and the extent which the decision was made.

52. Once the Local Court had accepted the statement containing some facts, the Local Court is bound to hear the referral. The rationale behind this is once s.12 (2) and (3) had been fulfilled, the Local Court which is a court of first instance has to rehear the whole case again, see the language used in s.13 of the Act. Whether there were irregularities in the procedure or process adopted by the Chiefs and their decision, the Local Court has to rehear the case again in full. I think that is the whole intention of the Local Court.

53. I do not seem to think that the Local Court has jurisdiction to hear objections directed at the Chiefs; that should have been made at the Chiefs' hearing. The Local Court can only hear objections directed at it. If it hears objections against the chiefs' tribunal, then it acted as a court with appellate jurisdiction which has never been intended to be by the Local Court Act.

54.In all that I say in my ration decendi which upholds this conclusion, in particular, the breach of judicial ethics by a member of Local Court justice, I must intervene exercising my supervisory powers and review the decision of the Local Court dated 7th October 20111 by quashing it.
ORDERS

1. An Order quashing the decision of the Guadalcanal Local Court dated 7th October 2011 in the matter of Honiata/Rauvuneha land.

2. An Order restraining the Tandai or other Chiefs from further dealing with or inquiry into the Honiata/Rauvuneha land dispute between the Claimant and the First Defendant.

3. An Order that the Guadalcanal Local Court differently constituted, to hear the referral by the First Defendant.

4. An Order pursuant to Rule 15.3.5, that until a decision is made on the referral by the First Defendant, the findings of the Tandai Chiefs made on 20th November 2009, shall prevail.
5. No leave is granted for filing a fresh referral. The referral stated in Order 4 is sufficient to assume the jurisdiction of the Local Court.

THE COURT

^[1] (2009) SBCA 4; CA-CAC 16 of 2008 (26 March 2009)
^[2] (2001) SBHC 78; HC0CC 082 of 2011 (6 November 2001)
^[3] (2008) SBHC; HC54 HCSI-CC 225 of 2005 (16 May 2008)
^[4] (2008) SBHC 70; HC59 – CC 465 OF 2007 (28 November 2008)
^[5] Ibid (3).
^[6] (2006) SBHC 22; CA-CAC 002 of 2004 (12 April 2006)
^[7] (2008) SBHC 109; HCSI-CC 85 of 2008 (30 May 2008).
^[8] Ibid (1).