Lautogia v Appellate Division of Land and Titles Court [2016] WSCA 13 (2 September 2016)

IN THE COURT OF APPEAL OF SAMOA
Lautogia v Appellate Division of Land and Titles Court [2016] WSCA 13

Case name:	Lautogia v Appellate Division of Land and Titles Court
Citation:	[2016] WSCA 13
Decision date:	2 September 2016
Parties:	TAPUSALAIA LAUTOGIA, TUUU ESEKIA, IULIA FAIGA (Appellants) v APPELLATE DIVISION OF LAND AND TITLES COURT (First Respondent) and MANO NONU LANI, LEIA TAUALESA KATIFA, TUUU FALETOESE BRYCE and others (Second Respondents)
Hearing date(s):	30 August 2016
File number(s):	CA14/16
Jurisdiction:	Civil
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Honourable Justice Fisher Honourable Justice Blanchard Honourable Justice Panckhurst
On appeal from:	Supreme Court
Order:	The appeal is allowed. The first respondent must pay the appellants’ costs in the sum of $5000 plus disbursements.
Representation:	S Ponifasio for the appellants S Ainuu and B Lo-Tam Fa’afiti for the first respondent
Catchwords:	Appeal against dismissal of judicial review proceedings– dispute over land – plainly unprofessional allegation of bias-
Words and phrases:
Legislation cited:
Cases cited:	Penaia II v Land and Titles Court [2012] WSCA 6 Lavea v Kerslake [2015] WSCA 3
Summary of decision:

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

CA 14/16

BETWEEN

TAPUSALAIA LAUTOGIA, TUUU ESEKIA, IULIA FAIGA
Appellants

AND

APPELLATE DIVISION OF THE LAND AND TITLES COURT
First Respondent

AND

MANO NONU LANI, LEIATAUALESA KATIFA, TUUU FALETOESE BRYCE and others
Second Respondents

Court:
Honourable Justice Fisher
Honourable Justice Blanchard
Honourable Justice Panckhurst
Hearing: 30 August 2016
Counsel:
S Ponifasio for the appellants
S Ainuu and B Lo-Tam Fa’afiti for the first respondent
Judgment: 2 September 2016

JUDGMENT OF THE COURT

Introduction

[1] In a judgment of 21 July 2016 with reasons delivered on 4 August 2016 the Supreme Court dismissed an action brought by the appellants. The action had been brought to judicially review a decision of the Appellate Division of the Land and Titles Court (“the ADLTC”) of 20 May 2015. By its decision the ADLTC had denied leave to appeal from a decision of the Land and Titles Court (“LTC”) delivered in April 2013. The appellants appeal to this Court against the Supreme Court’s dismissal of its judicial review proceedings

Background

[2] The appellants and the second respondents were involved in a dispute over land at Siumu. The dispute was listed for hearing in the LTC on 15 December 2008 before Vice President Fuimaono, two Judges and an assessor. When the case was called the Vice President voluntarily disqualified himself. He accepted that there were difficulties in his continuing to participate. One difficulty was a family connection between his family and the wife of the leader of one of the parties. The other was that he was residing together with the brother and children of one of the parties. The case was adjourned to 11 February 2009 for hearing before a different Vice President.

[3] For reasons unexplained, four years went by before the matter came back before the LTC. At a hearing on 8 April 2013 Vice President Fuimaono was presiding again, although with a different panel of judges and an assessor. The appellant’s leader (hereinafter “the appellant”) objected to the Vice President’s presence, reminding him of his voluntary disqualification on the earlier occasion in 2008. The Vice President downplayed the problem but agreed to adjourn again if that was the appellant’s wish. Having waited for four years, the appellant was anxious about the further delay that would cause. After some discussion he agreed to the matter proceeding before Vice President Fuimaono. The case was heard a few days later and ultimately decided against the appellants.

[4] The appellants appealed from the LTC decision to the ADLTC. One of the grounds of appeal was that the Vice President failed to recuse himself. The application for leave to appeal was not heard for another two years. Then in a decision of 20 May 2015, the ADLTC denied leave to appeal. On the issue of bias the ADLTC determined that the appellants had waived their right to complain.

Supreme Court proceedings

[5] The appellants brought judicial review proceedings against the ADLTC and the second respondents. The object of the proceedings was to set aside the ADLTC’s decision denying leave to appeal. The grounds for judicial review were said to be the ADLTC’s failure to give due consideration to the earlier voluntary disqualification by the Vice President, the failure to give due consideration to the appellant’s objection to his participation, and the breach of the appellant’s right to a fair hearing pursuant to Art 9 of the Constitution.

[6] In his judgment Vaai J was critical of Vice President Fuimaono’s failure to make advance arrangements for a different Vice President to preside. He also criticised the undue pressure the Vice President had placed on the appellant to waive his objection rather than face another lengthy adjournment. He characterised the Vice President’s conduct as “plainly unprofessional, shameful and contrary to the judicial oath” and said that the “so called waiver was not voluntary, not informed and not unequivocal. It was not a waiver”.

[7] Despite those trenchant remarks Vaai J went on to discuss a jurisdictional difficulty. Whereas his criticisms were levelled at the conduct of the LTC, the judicial review proceedings were brought against a different tribunal, the ADLTC. The ADLTC had merely denied leave to appeal. The only allegation of bias was directed to the LTC decision, not the decision of the ADLTC. Vaai J concluded that the challenge to the decision of the ADLTC was essentially a challenge to the merits of its decision.

[8] Vaai J pointed out that s 71 of the Land and Titles Act 1981 prohibited the Supreme Court from examining the merits of LTC and ADLTC decisions – see further Penaia II v Land and Titles Court [2012] WSCA 6. Section 71 of the Land and Titles Act 1981 provides:

71. Decisions and orders not reviewable by other Courts
– Subject to this Act, no decision or order of the Court shall be
reviewed or questioned in any other Court by way of appeal,
prerogative writ or otherwise howsoever.

[9] As he saw this as a challenge to the merits of the ADLTC decision, Vaai J concluded that the Supreme Court had no jurisdiction to intervene.

The Appeal

[10] In a well-presented argument Ms Ponafasio accepted that the decision under review was that of the ADLTC, not the LTC. She also accepted that the only allegation of bias related to the LTC, not the ADLTC. However she did not accept that she was challenging the ADLTC’s decision on its merits. She submitted that the ouster provisions of s 71 of the Land and Titles Act did not apply because her challenge to the ADLTC decision was based on a breach of the constitutional right to a fair trial.

[11] It is clear law that art 4 of the Constitution of Samoa confers on the Supreme Court the jurisdiction to grant a remedy where there has been a breach of the Constitution; that the Constitution takes priority over primary legislation; that the Supreme Court has jurisdiction to determine whether a constitutional breach has been committed by any tribunal whether or not the primary legislation under which it operates contains an ouster provision; that art 4 of the Constitution overrides the ouster provisions of s 71 of the Land and Titles Act; and that in consequence the Supreme Court can determine whether there has been a breach of the Constitution by the LTC or ADLTC – see further Penaia II v Land and Titles Court (above) and Lavea v Kerslake [2015] WSCA 3.

[12] The question before us in this case is whether there was a constitutional breach by the ADLTC as distinct from the LTC. We think this is to be approached in two steps. The first question is whether it is to be assumed that there was a breach of the Constitution by the LTC. The second is whether such a breach would have constitutional consequences for the decision of the ADLTC.

[13] As to the first, it is important to consider the way in which this matter came before the Supreme Court. The matter before the Court was an application by the first respondent to have the appellants’ proceedings struck out. On a strike-out application it is not appropriate to make findings on disputed questions of fact. That is left for a trial later if the strike-out application fails. A strike-out application is to be determined on a purely hypothetical basis. The hypothesis is that the factual allegations pleaded by the plaintiff will ultimately be upheld at trial. On a judicial review application in Samoa, where no statement of claim is filed, it may also be necessary to resort to affidavits in support to ascertain what facts are alleged by the plaintiff. It will also be permissible to take into account other affidavit evidence to the extent that it is uncontroversial.

[14] In this case the appellants’ motion for review, and the appellant’s affidavit in support, can be treated as the equivalent of their pleadings. These documents traverse the sequence outlined earlier in this judgment. They then go on to allege bias on the part of Vice President Fuimaono in the LTC. They deny that they effectively waived the right to object. That is the factual basis on which the application must be determined. For present purposes it is to be assumed that the LTC was not acting impartially.

[15] Article 9 of the Constitution materially provides that:

“In the determination of his civil rights and obligations or of any charge against him for any offence, every person is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal ...”

[16] Since it is to be assumed that the LTC was not acting impartially, the strike-out application must be dealt with on the assumption that it was acting in breach of art 9 of the Constitution.

[17] The second step is to turn to the decision of the ADLTC. For this purpose it is to be assumed that the ADLTC was faced with an appeal from a first instance decision which breached the Constitution. The question is whether, in declining leave to appeal, the ADLTC committed its own breach of the Constitution.

[18] Where tribunals like the LTC and the ADLTC are linked by legislation, it will be expressed or implied in the legislation that they share a common purpose. The function of the first tribunal may be to hear the case, and that of the appellate tribunal to correct any errors committed, but they have the shared purpose and responsibility of achieving justice for the parties. In that sense they are acting in tandem. The responsibility is indivisible. The appellate tribunal cannot abdicate from its own duty to contribute to the shared responsibility of achieving justice for the parties.

[19] In our view that shared responsibility extends to duties stemming from the Constitution. First instance tribunals, and tribunals having the power to determine appeals from them, have the joint responsibility of ensuring that effect is given to art 9 of the Constitution. We see that as inherent in art 9. The Constitution requires appellate courts to intervene when faced with a first instance decision which is vitiated by a breach of art 9 of the Constitution. An appellate tribunal’s failure to grant a remedy in that situation is itself a breach of the Constitution.

[20] We have already noted that the present case is to be approached on the assumption that there was a breach of art 9 of the Constitution by the LTC. In declining leave to appeal the ADLTC failed to remedy that breach. It follows that if those facts were established at the trial of the judicial review application, the ADLTC would be found to have breached the Constitution.

[21] The Supreme Court has the jurisdiction to grant a remedy where there is a breach of the Constitution by either the LTC or the ADLTC. It follows that the appellant’s action should not have been struck out in the Supreme Court.

Result

[22] The appeal is allowed. The appellant’s action in the Supreme Court is reinstated.

[23] In this Court the first respondent must pay the appellants’ costs in the sum of $5000 plus disbursements.

Honourable Justice Fisher
Honourable Justice Blanchard
Honourable Justice Panckhurst