Tanielu v Attorney General [2017] WSCA 3 (31 March 2017)

IN THE COURT OF APPEAL OF SAMOA
Tanielu v Attorney General [2017] WSCA 3

Case name:	Tanielu & Ors v Attorney General
Citation:	[2017] WSCA 3
Decision date:	31 March 2017
Parties:	LEALIIFANO IOPU TANIELU, PAIALII AFE, MOE FAO and LOTUMAALII ANILIUETA (Appellants) and ATTORNEY GENERAL OF SAMOA (Respondent)
Hearing date(s):	28 March 2017
File number(s):	CA13/16
Jurisdiction:	Civil
Place of delivery:	Court of Appeal of Samoa, Mulinuu
Judge(s):	Honourable Justice Fisher Honourable Justice Blanchard Honourable Justice Panckhurst
On appeal from:	Supreme Court
Order:	The appeal is dismissed with costs to the respondent in the sum of $5000.
Representation:	Mr Mulitalo and Mr Tanielu for Appellant Mr Ainuu and Mr Soloi for Respondent
Catchwords:	Appeal against judicial review proceedings – matter originally from Land and Titles Court – appeal dismissed
Words and phrases:
Legislation cited:	Land and Titles Act 1981 ss 70; 71; 77
Cases cited:	Lavea and Mulitalo v Kerslake, Alii and Faipule Saluafata, Reiche [2015] WSCA 3 Lautogia v Appellate Division of Land and Titles Court [2016] WSCA 13
Summary of decision:

CA 13/16

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

BETWEEN

LEALIIFANO IOPU TANIELU, PAIALII AFE, MOE FAO and LOTUMAALII ANILIUETA, all Samoan matais appearing in a representative capacity for and on behalf of the village of Auala.
Appellant

AND:

ATTORNEY GENERAL OF SAMOA
Respondent

Court:
Honourable Justice Fisher
Honourable Justice Blanchard
Honourable Justice Panckhurst

Hearing: 28 March 2017

Counsel:
Mr Mulitalo and Mr Tanielu for Appellant
Mr Ainuu and Mr Soloi for Respondent

Judgment: 31 March 2017

JUDGMENT OF THE COURT

Introduction

1. This is an appeal against a Supreme Court decision of 15 July 2016 striking out the appellants’ judicial review proceedings. The judicial review proceedings had sought to review a decision of the Appellate Division of the Land and Titles Court (“LTCA”) given on 7 August 1998.

Background

2. In 1985 the Land and Titles Court (“LTC”) decided two issues affecting the villages of Auala and Vaisala. One aspect of the decision dealt with the banishment of two members of the villages. The other concerned the establishment of the Catholic Church in Auala. In the course of its decision the LTC mentioned another issue. The issue was whether the two villages, Auala and Vaisala, were to be treated as independent from each other or one village (“the two villages issue”). The LTC stated that it was unnecessary for it to decide the two villages issue and that that issue would be left for another day.
3. In 1988 the LTC tackled the two villages issue that it had deferred in the 1985 proceedings. It decided that Vaisala and Auala were not two independent villages but sub-villages of one village known as Safune Taufasala.
4. In 1995 the LTCA heard an appeal from the LTC decision of 1988. The appeal did not include any allegation of bias on the part of the 1988 LTC. In an oral decision the LTCA dismissed the appeal. After a delay of three years the LTCA confirmed this with reasons in writing.
5. In 1996 the appellants filed Supreme Court proceedings seeking to judicially review the LTCA’s decision. The grounds for review were said to be the three year delay between the oral decision in 1995 and the written reasons in 1998; the failure to pay due regard to the history, culture and traditions of Auala; and the ultra vires nature of the LTCA decision. The grounds were later amended to plead that the LTCA decision lacked authority; breached natural justice and fairness; was based on erroneous reasoning; and was uncertain. These grounds were expanded during argument in the Supreme Court to include the LTCA’s alleged failure to recognise that the LTC decisions of 1985 and 1988 were inconsistent; that the LTC lacked the jurisdiction to determine the two villages issue in 1988 given that the point had already been decided in 1985; that one of the LTC judges who gave the 1988 decision was biased; and that the LTCA’s three year delay between oral and written decisions amounted to procedural unfairness.

Supreme Court Judgment

6. In her reasons for decision, Justice Tuatagaloa pointed out that ss 70 and 71 of the Land and Titles Act 1981 limited the scope of the Supreme Court’s jurisdiction. For present purposes the jurisdiction to review the LTCA’s decision was confined to breach of the Constitution. As to bias, she held that the claim against an LTC judge in 1988 could not succeed given that that decision had effectively been overtaken by the LTCA decision of 1995. In the latter decision the Court was sitting with different judges against whom there was no allegation of bias.
7. As to the LTCA’s delay between oral and written decisions, the Judge concluded that there was no procedural unfairness because the delay did not inhibit the appellants’ access to the Supreme Court by way of judicial review.
8. The Judge concluded that the Supreme Court had no jurisdiction to determine the res judicata issue since it would require the Court to enter upon the merits of the LTCA decision. To do so was prohibited by s 71 of the Land and Titles Act. She also commented that there was in fact no inconsistency between the 1985 and 1988 decisions: the issues before the LTC in those two cases were different.
9. Finally the Judge concluded that there had been no breach of Art 9 of the Constitution. The appellants had had access to the LTC at first instance and to the LTCA on appeal without violation of their rights under the Constitution.

The Appeal to this Court

10. On appeal to this Court the appellants sought to traverse many of the arguments they had advanced in the Supreme Court. As we pointed out to Mr Mulitalo and Mr Tanielu, however, s 71 of the Land and Titles Act provides:

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.

11. “Court” is defined in s 2 as “the Land and Titles Court”. Section 77 makes it clear that appeals are heard by the same Court, albeit comprising the President and two Samoan Judges appointed by the President. The ouster provisions of s 71 apply to both.
12. Neither the Supreme Court nor this Court has the power to revisit decisions of the LTC or LTCA on any ground other than breach the Constitution: see Lavea and Mulitalo v Kerslake, Alii and Faipule Saluafata, Reiche [2015] WSCA 3. In special circumstances an LTC decision can play a part in related Supreme Court proceedings (Lavea at [39]) but it was not suggested that this was such a case.
13. Mr Mulitalo accepted that the only breach of the Constitution alleged in the present case arose from the fact that the Vice-President of the LTC had sat in both the 1985 and the 1988 LTC cases. Mr Mulitalo coupled this with various criticisms of the 1988 decision itself. He submitted that for a judge to sit on both occasions demonstrated bias and therefore a breach of Art 9 of the Constitution.
14. Article 9 provides that in the determination of his civil rights every person is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal. If the LTC’s decision in 1988 had been vitiated by bias, that would certainly have been a breach of Art 9. It might also have been possible to argue that the LTCA’s failure to remedy the LTC’s bias at first instance vitiated the LTCA’s own subsequent decision: Lautogia v Appellate Division of Land and Titles Court [2016] WSCA 13. The latter argument would not have been available in this case, however, because no allegation of bias was made on the appeal to the LTCA.
15. The difficulty with the appellants’ argument, however, is the lack of any recognisable allegation of bias. Judges routinely sit in successive hearings to decide successive issues between the same parties arising from the same subject matter. The fact that they come to a subsequent hearing with prior knowledge of the matter, and after having already decided some of the issues on an earlier occasion, could never of itself amount to bias.
16. Recognising that difficulty, Mr Mulitalo sought to combine the fact that the same judge had sat on both the 1985 and 1988 decisions with criticisms of the 1988 decision itself. His principal criticism was that the 1985 decision had already decided the two villages issue thereby making it res judicata by the time the matter came before the LTC again in 1988.
17. We may say that we have not been shown anything to suggest that the res judicata argument would have succeeded. However the real point is that even if the argument had been sustainable, it could not have been equated with bias. The same is true of the many other detailed criticisms of the 1988 decision advanced by Mr Mulitalo. In this Court they included illegality, failure to consider traditional and customary rights, ubi jus ibi remedium, ultra vires, lack of due process, error of law on the face of the record, breach of a duty of care, abuse of process and detailed criticisms of the factual findings. Judges may or may not make errors in their decisions. But simply to give an erroneous decision is not to be guilty of bias. Nothing has been advanced to lay an arguable basis for bias.
18. Bias being the only constitutional breach advanced by the appellants, and that argument being unsustainable on its face, the appellants’ proceedings to judicially review the LTCA decision were rightly struck out. Neither the Supreme Court nor this Court has jurisdiction to review a decision of the LTC or the LTCA on any basis other than breach of the Constitution.

Result

19. The appeal is dismissed with costs to the respondent in the sum of $5000.
    

HONOURABLE JUSTICE FISHER
HONOURABLE JUSTICE BLANCHARD
HONOURABLE JUSTICE PANCKHURST