Kasi v Sekevolomo
Solomon Islands High Court
Land Appeal Case 10 of 1996
29th September 1998
This matter involved an appeal heard by Palmer J. of the High Court of the Solomon Islands from a decision of Customary Land Appeal Court of the Solomon Islands. The central issue for consideration was the possible breach of the bias rule of natural justice. Originally the matter involved a dispute over boundaries of customary land heard by the Chief's Committee and the Local Court, and then on appeal to the Customary Land Appeal Court (CLAC). On appeal to the last of these, it was alleged that one of the members of the Local Court was closely related to one of the parties and ought to have been disqualified on the ground of actual or potential bias. The application was dismissed and the appeal brought on this ground before Palmer J.
One of the difficulties in this case was that, apparently, no evidence was called in support of the allegation of bias before the CLAC. Further, there was no record of argument being advanced by the appellant before the court even though this was one of the clearly stated grounds of appeal. According to the record of the proceedings below the appellant had made no effort whatsoever to support the allegation of bias.
On this basis, Palmer J. rightly refused to allow the appeal on this ground to be the subject of evidence and argument before the High Court. It was said that, whilst allegations of bias were to be taken very seriously by the courts, this was to be understood as requiring the production by a claimant of evidence to support them. It could not be taken to mean that the High Court, once it had been satisfied that the appellant had been extended an opportunity to have the matter argued before the court below, would permit the matter to be argued de novo on appeal to it. Thus he said :
"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. The 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." (at p. 3)
Clearly, the issue could have been addressed by the High Court on appeal if, for some reason, such as procedural unfairness, the court below had refused or had not properly considered the issue involved. Thus Palmer J. was compelled to consider the reasons why the CLAC had failed to consider the issue. His conclusion was that this was because the matter was not effectively brought to the attention of the court as an issue of bias. But this raises some difficult issues as to how far the court below ought to be treated as having been put on reasonable notice of an issue of bias.
Palmer J.'s conclusion on this point appears to take a rather strict view of this requirement. Ground 9 of the notice of appeal stated as follows :
"[The member of the court] was a close relative of the plaintiff and he should not have been chosen to be a member of the local court. [He] 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."
His Honour concluded that this did not make it clear to the court that the closeness of the relationship alleged was related to an allegation of bias. The issue only came to the attention of the CLAC after the proceedings had commenced rather than objection taken at the commencement of the proceedings. (p. 4) Furthermore, the appellant did nothing to bring this out at the commencement proceedings. If this had been done the court, according to Palmer J. would have been obliged to consider the matter in detail.
No doubt His Honour is correct in taking a view that matters of bias are serious allegations which are easily made without proof. They can be highly detrimental and an appellant should be required to substantiate them. No doubt one can say that in these proceedings the appellant had been delinquent in the prosecution of the claim before the CLAC. This seemed to be the deciding factor. It is suggestive of the idea that a person who alleges bias is under an obligation to bring the matter specifically to the attention of the court. It cannot be left to the court to draw inferences from unclear or vague assertions.
However, in this matter it is arguable that ground 9 of the notice of appeal, above, did provide the court with sufficient basis for inferring that the matter was one of bias. Clearly, it refers to the alleged relationship and claims that the person concerned ought not to have been a member of the court. If this is not a reasonable allegation of bias, then why not? Surely this is a statement which ought to have drawn to the attention of the CLAC that there was an allegation of bias, or, to put it another way, disqualification on the basis of a close relationship to one of the parties.
The view seems to have been taken that in the absence of a specific reference to bias it is left to the claimant to prosecute the claim at the beginning of the proceedings and not for the court to act as the guardian of the possible rights of the parties. This is perhaps a traditionally common law view of the position of the court vis ¹ vis. the parties before it. What could be questioned is whether this is entirely appropriate in the case of proceedings before a customary court.
That aside, it should not be forgotten that the courts themselves have often gone to extremes in bias situations to safeguard the apprehension by the public of their independence and neutrality. Hence the development of the extensive principles of apprehended bias. From this could it not also be said that the courts themselves have a duty to inquiry once there is any reasonable suggestion of bias as there appears to have been in this case.
Professor R. Hughes,