Land and Titles Court v Lautogia [2018] WSCA 4 (13 April 2018)

IN THE COURT OF APPEAL OF SAMOA
The Land and Titles Court & Anor v Lautogia & Ors [2018] WSCA 4

Case name:	The Land and Titles Court & Anor v Lautogia & Ors
Citation:	[2018] WSCA 4
Decision date:	13 April 2018
Parties:	THE LAND AND TITLES COURT (First Appellant) and PRESIDENT OF THE LAND AND TITLES COURT (Second Appellant) vs TAPUSALAIA LAUTOGIA, TUUU ESEKIA, IULI FAIGA, and others of Siumu (Respondents)
Hearing date(s):	11 April 2018
File number(s):	CA01/17
Jurisdiction:	CIVIL
Place of delivery:	Court of Appeal of Samoa, Mulinuu
Judge(s):	Honourable Justice Hansen Honourable Justice Fisher Honourable Justice Panckhurst
On appeal from:	Supreme Court of Samoa, Mulinuu
Order:	The appeal is dismissed. The respondents are entitled to costs in the sum of $5,000 SAT.
Representation:	S Ainuu and T Peniamina for First and Second Appellants S Ponifasio for the Respondents
Catchwords:	Lands and Titles Court matter – bias - recusal
Words and phrases:	Dispute as to ownership of customary land – right to fair trial – doctrine of disqualification for alleged bias
Legislation cited:	The Constitution of Samoa article 9; 9(1).
Cases cited:	Auckland Casino Ltd v Casino Control Authority [1995] 1 NZLR 142 (CA) at 151; Jones v DAS Legal Insurance Expenses Co Ltd [2003] EWCA Civ 1071; Leleua v Land and Titles Court [2009] WSSC 123 Reupena v Senara [2017] WSCA1; Saxmere Co Ltd & Ors v Wool Board Disestablishment Co Ltd [2009] NZSC 70. Siaso v Appellate of Land and Titles Court [2014] WSSC 26 Smith v Kvaerner Cementation Foundations Ltd [2006] App LR 03/21 Stehlin v Police [1993] WSCA 5
Summary of decision:

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

CA01/17

IN THE MATTER: OF AN APPLICATION FOR JUDICIAL REVIEW

BETWEEN:

THE LAND AND TITLES COURT continued pursuant to the Land and Titles Act 1981.
First Appellant

A N D:

PRESIDENT OF THE LAND AND TITLES COURT appointed pursuant to the Land and Titles Act 1981.
Second Appellant

A N D:

TAPUSALAIA LAUTOGIA, TUUU ESEKIA, IULI FAIGA, and others of Siumu.
Respondents

Coram:
Honourable Justice Hansen
Honourable Justice Fisher
Honourable Justice Panckhurst

Hearing: 11 April 2018
Counsel: S Ainuu and T Peniamina for First and Second Appellants
S Ponifasio for the Respondents

Judgment: 13 April 2018

JUDGMENT OF THE COURT

Introduction:

1. The respondents petitioned the Land and Titles Court (the Court) for the determination of a dispute as to the ownership of the customary land called Leuluasi in the village of Siumu. They were unsuccessful. The decision was challenged by way of a motion for judicial review which ultimately was determined by Nelson J who quashed the decision of the Court and a decision of the second appellant (the President) refusing leave to appeal. He directed the petition to be re-heard by a differently constituted panel of the Court. He found that the respondents’ right to a fair hearing and to trial by an independent and impartial tribunal under article 9(1) of the Constitution had been breached. The Court and the President of the Court appeal against that decision.

Background:

2. The petition first came on for a hearing on 15 December 2008 before Vice President Fuimaono sitting with two Samoan Judges and one assessor. Without prompting from either party, the Vice President recused himself. The following is a translation of what he said:

“Tapu Teri not present for he’s travelling overseas on Government matters. During the recess the Court considers the application to proceed however these are some faults in case we proceed and a decision is given and you know afterwards I am Fuimaono the Deputy President that it is a girl of my family that is married to Tofaeono Tuasivi and present is the party of Faatonu, I can see some of her sisters and children we are residing together at Leufisa that is also hard for I must not continue on with the matter but I only ask you whether you are available on 11 February 2009 to find another Deputy President.”

3. For reasons which have no bearing on this appeal, the petition did not come on for hearing again until 08 April 2013. The panel was once again chaired by Vice President Fuimaono. The hearing was adjourned for one week to 15 April in order to accommodate one of the parties. The following exchange between the respondent Tapusalaia Lautogia and the Vice President then took place:

“Tapusalaia Lautogia: Your Honour we object to Your Honour presiding because of our matter in 2009 you removed yourself because of your connection whether its adjourned or whatever justice must be done.

Fuimaono: For the party of Tapusalaia Lautogia is objecting to me presiding and the only order given to your matter is to be further adjourned to find a Deputy President then your matter proceeds. The truth is the girl of our family lives with Mano the daughter of Toelupe but she is not my sister that I raise for your understanding and when we come to Court there are no family connections done we have been sworn to God but I accept your wish Tapusalaia I do not make decisions alone but I feel for your matter is long outstanding.

Tapusalaia Lautogia: I have nothing further to say I am satisfied you will do our case, but do justice.

Fuimaono: Alright, matter adjourned to Monday 15 April 2013.”

4. On 26 April 2013, after hearings on 15, 16 and 19 April, the Court delivered its decision, finding that the land in dispute is under the guardianship of the chiefly title Mano and therefore the rightful guardians of the land are the family and heirs of Mano Togamau.
5. The proceeding has found its way to this Court for the second time. The President’s refusal to grant leave to appeal was challenged in judicial review proceedings. There was a successful appeal to this Court against the decision of Vaai J to strike out the judicial review proceeding. In the decision now under appeal Nelson J was considering an amended motion for judicial review.

Judge’s decision:

6. In the Supreme Court the applicants (the respondents in this Court) argued that their right under Article 9 of the Constitution to a hearing by an independent and impartial tribunal had been breached by reason of the apparent bias of the Vice President. The Judge observed, however, that a hearing before a tribunal that is not independent and impartial also breached the right to a fair hearing which he saw as broader. He approached the case on the basis that the right to a hearing before an independent and impartial Tribunal is ‘separate and divisible’ from the all encompassing right to a fair hearing.
7. Referring then to this Court’s decision in Reupena v Senara^[1] as having recently restated the applicable principles concerning apparent bias, the Judge said at [31].

“The regrettable history of the Land and Titles Court first instance proceedings have already been traversed. The question arising is whether in the circumstances the applicants have been given a “fair hearing” in accordance with article 9(1) of the Constitution? I am of the view they have not. Having voluntarily recused himself in 2008, absent a change of circumstances, the learned Vice President was duty bound to continue in that vein. He was aware the Friday before the proceedings it was scheduled for hearing before his panel on the Monday, there was ample time to swap cases with one of the other four Vice Presidents of the Court. His attempt to downplay his connection to the matter, which only addressed one aspect of his disqualification, was evidence of a desire to chair the inquiry. Whether this was genuine or nefarious in purpose I prefer not to speculate. But his further and continued involvement was patently unfair to the objecting applicants. In choosing to do so he has breached the applicants constitutional right to a fair hearing.”

8. The Judge went on to consider whether the applicants (respondents) had waived their right to object to the Vice President participating in the hearing. He identified (at [36]) the following matters as emerging from the transcript of the hearing on 08 April 2013:

(i) The precise nature of the Vice Presidents relationship with the wife of the first respondent leader and with the leader himself was not elaborated. The Vice President merely stated “she was not his sister.” The extent of his interaction and dealings if any with her either on a day to day or extended family basis was not disclosed. Ditto his level of familiarity with her husband.

(ii) The difficulty in assigning another of the courts four (4) Vice Presidents to the case was not addressed. Nor was there any comment on how long a delay this would entail. The learned Vice President referred to “a delay” but failed to indicate whether a week or a month or longer was envisaged.

(iii) No time was given to the applicants to consider their position and whether or not to agree to a waiver of their objection. Or to consider the likely implications. They were put on the spot and an immediate response was expected by the Vice President. A trained judicial officer versus a layman, hardly an equitable contest and certainly not in an environment for reaching an “unpressured decision.”

(iv) Considering the relevant excerpt as a whole one cannot help but form the impression that in the language of the Court of Appeal in Jones, the Judge was referring to Jones v DAS Legal Expenses Insurance Co [2003] EWCA Civ 1071 the applicant was “hustled into” agreeing that the Vice President could preside. The term “bullied” would be equally applicable. The reticence on the part of the leader of the applicants can be seen from his twice repeating the phrase that in any event “ia faia le amiotonu.”[you will do justice]

9. The Judge concluded at [37]:

“The applicants’ waiver was not made with the benefit of all the facts. It was given in a situation of duress and consequent upon reassurances by Vice President Fuimaono that in essence, all would be well. It was not in my assessment voluntarily or freely given. It does not meet the tests espoused by law, it certainly breaches several of the guideline requirements of Jones.&#^[2]

10. The Judge consideration to the possibility that, in having become aome aware of the facts that may constitute disqualification for bias but allowing the hearing to proceed, the applicants (respondents) may be said to have, “kept an objection up their sleeve” (see Auckland Casino Ltd v Casino Control Authority).^[3] The respondents (appellants in this Court) had argued that, as the hearing was in fact adjourned for a week and occupied 18 days, there was time for the applicants to fully consider their position and make further objections.
11. The Judge rejected the argument noting that the applicants were laymen without legal training who could not realistically be expected to revisit their earlier decision. He concluded their Constitutional rights to a fair hearing and to be heard by an independent and impartial tribunal had been breached and there had been no valid and effectual waiver of their rights. He quashed the decision of the Court and, consequentially, that of the President refusing leave to appeal.
12. In a postscript to the judgment the Judge noted that, after the hearing was completed, the respondents had filed an affidavit by the Vice President. He disregarded the affidavit noting that, in order to be considered, it would need to have been filed in time to permit cross-examination and the filing of evidence in response.

The appeal:

13. For the appellants Mr Ainuu submitted that the Judge misdirected himself. He said the Judge failed to follow the two step process mandated by this Court in Reupena v Senara.^[4] Instead, he focused on the Vice President’s voluntary recusal at the 2008 hearing, treating it as conclusive and failing to consider afresh whether the issues raised might have given rise to an apprehension of bias. Had he properly directed himself, it was submitted, the Judge would have concluded that there was no necessary reason for the Vice President to have recused himself in 2013.
14. The remaining grounds of appeal are directed to the issue of waiver. The appellants contend that the conditions necessary for an effective waiver were satisfied and the Judge’s findings that the respondents were ‘hustled’ or ‘bullied’ could not be supported. Mr Ainuu referred to the opportunity the respondents had to reflect on the position and challenged the judge’s characterization of the respondents as laymen ‘put on the spot’ by a trained judicial officer.

Discussion:

15. The test for establishing apparent bias is not in issue. It is sufficient to quote, as the Judge did, the following passage from Reupena v Senara^[5]:

“[6]....The courts in the United Kingdom, Australia and New Zealand have described what amounts to apparent bias in slightly difference language. The United Kingdom approach is to ask whether there is a “real danger” of bias: R v Gough [1993] UKHL 1; [1993] AC 646. The Austr and New ZNew Zealand Courts have united in saying that, subject to considerations of waiver or necessity – neither or which is relevant in this case – a judge is disqualified &#82 a fair-minded lay observererver might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”; the question is one of possibility (“real and not remote”), not probability: Ebner v Officialtee in Bank Bankruptcy (2000) 205 CLR 33 (HCA) at 345 and SaxmerLtd v Wool Board Dise Disestablishment Co Ltd [2009] NZSC 72; [2010] 1 NZLR 35 at [3]. It has been said that the respective tests of apparent bias are essentiale same: Saxmere at[3].

<<[7] Importmportaportantly the court must examine the matter in two steps:

(a) first, the identification of what it is said might lead a judge to decide a case other than on its legal and factual merits; and

(b) Secondly, there must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.”

16. As noted, the appellants contend that the Judge failed to apply the two step test and to make his own assessment of whether the matters of concern when the hearing commenced in 2013 would have given rise to a reasonably based apprehension of bias in the mind of a fair-minded lay observer.
17. The question of precisely what those matters were was the subject of some debate at the hearing of the appeal. It is, as the Judge said (at [4]), common ground that there was a familial connection between the Vice President and the respondents by virtue of the marriage of his first cousin’s daughter to the leader of the respondents. In an affidavit filed on behalf of the respondents it was said that she had died some 20 years ago although, as appears on the translation, the Vice President’s acknowledgement of the relationship was expressed in the present tense. The reference in the Vice President’s 2008 comments (at [2] above) to his ‘residing together’ with members of the respondent party was also the subject of comment in the affidavits. One of the respondents deposed that the family of the Vice President and her family lived in the same village but “did not (and do not) live together on the same land or the same household.” As the Judge noted, this element of the association between the Vice President and the respondents was not referred to when the issue of recusal was discussed in 2013.
18. Mr Ainuu submitted that the Judge erred in concluding that the Vice President’s decision to recuse himself in 2008 was ‘a clear admission of bias and lack of independence’ (at [23]). He referred us to Saxmere Co Ltd and Ors v Wool Board Disestablishment Co Ltd^[6] where the Supreme Court of New Zealand rejected a submission that the mere fact of a disclosure by a tribunal gave some support for the view that bias could reasonably be apprehended (at [31] – [32]). That, however, is not the position here. The critical point is that the Vice President not only made disclosure but regarded his association with the respondents as of such a nature as to warrant his withdrawal from the case. Of course, his was not the measured response of a Judge when confronted with associations that may justify recusal, but it may properly be seen as a proxy for the view that would be taken by a fair-minded lay person.
19. Mr Ainuu drew our attention to decisions of the Supreme Court which underlined the importance of examining the precise nature of familial and other connections. In Siaso v Appellant of Land and Titles Court^[7] Vaai J warned against finding risk in connections and associations that cannot be labelled as ‘close, regular or discomforting’ (at [40]). Nelson J himself in Leleua v Land and Titles Court^[8] observed that Samoa is a country where everyone is related to each other in one way or another. It is the nature of the connection not the mere fact of it that is important. These are the realities that prompted Cooke P to observe in Stehlin v Police^[9] that the doctrine of disqualification for alleged bias has to be applied somewhat robustly in Samoa.
20. They are also, however, the realities that clearly caused Nelson J to place great weight on the spontaneous assessment made by the Vice President himself in 2008 and, initially, when the matter was raised in 2013. Given, as acknowledged in argument by counsel for the appellants, that there was no relevant change in circumstances between 2008 and 2013, we must also place great weight on the assessment made by the Vice President who was best placed to evaluate the significance of his familial and other associations with the respondents.
21. While Nelson J did not explicitly undertake the two step process, he clearly took the view that the Vice President’s actions confirmed that his connection with the respondents were of such a nature as to give rise to an apprehension of bias in the mind of a fair-minded lay observer. We find no reason to differ from that assessment.
22. We turn now to consider the challenges to Nelson J’s finding that there was no valid or effectual waiver of the respondent’s right to object to the Vice President remaining on the panel. There is no dispute as to the conditions required for such a waiver to be effective; it must be clear and unequivocal, and made with full knowledge of all the facts relevant to the decision: Smith v Kvaerner Cementation Foundations Ltd.^[10] What is in issue is whether the Judge was right to find that the waiver did not satisfy those requirements.
23. Mr Ainuu argued to the contrary focusing on the Judges finding that the Vice President had ‘attempted to downplay his connection’ with the respondent; his mischaracterization of the relationship between the litigants and the Vice President; his conclusion that the respondents were pressured including the associated point that the respondents had the opportunity to revoke their waiver; and finally, the Judge’s failure to have regard to the affidavit by the Vice President that was filed after the hearing.
24. It is a matter of record that when the issue of recusal was raised by the respondents in 2013, the Vice President did not traverse the second of the matters that had prompted him to recuse himself in 2008. His motivation for not doing so can only be a matter of speculation and is, in any event, not the point. In considering whether waiver was made with full knowledge of the relevant facts, regard must be had to the extent of disclosure by the tribunal. That said, we do not understand the respondents to contend that they required reminding of the matters raised by the Vice President in 2008.
25. The central issue is not whether the respondents were sufficiently well informed but whether they were given a fair opportunity to consider their position before electing to carry on. It appears that they were expected to make the decision there and then; they were ‘put on the spot’ as the Judge said. They were undoubtedly faced with a difficult decision. If they maintained their objection, a lengthy adjournment would follow. The dilemma confronting the respondents was exacerbated by the poor health of their leader. They were lay people in an unfamiliar situation dealing with a senior and respected court officer. Mr Ainuu took issue with the description of the Vice President as a trained judicial officer, as no legal training is required for the position. It must nevertheless be recognized that he was invested with the authority of Vice President. It is easy to understand that lay litigants faced with a forceful assurance from him, would have great difficulty maintaining their objection. To do so would have been tantamount to doubting his integrity. In all the circumstances we see no reason to differ from the Judge’s assessment that the waiver was not voluntarily and freely given.
26. As they did in the Supreme Court, the appellants argued that the respondents nevertheless had the opportunity to review their decision before the hearing properly began a week later or during the hearing itself. A total of 18 days elapsed between the waiver and the Court’s decision. There was reference to Auckland Casino Ltd v Casino Control Authority^[11] where the Court of Appeal said:

“There is much authority that a party who in the course of a hearing has become aware of facts which may constitute disqualification for bias or otherwise will be held to have waived the objection, or refused discretionary relief, if he allows the hearing to continue without protest. This is sometimes stigmatized as keeping an objection up a party’s sleeve, but the description may be harsh if a party through no fault of its own has been confronted with an agonizing choice.”

Mr Ainuu also reminded us that the remedy of judicial review may be denied an applicant who does not act expeditiously.

27. In our view it cannot realistically be contended that, having elected to go ahead before a panel chaired by the Vice President, the respondents should have reconsidered their position and revoked their waiver. It could never be suggested that they were keeping an objection up their sleeve. It is inherently unlikely that they ever regarded themselves as in a position to review their decision.
28. There have been delays by the respondent in pursuing their remedies but Nelson J was not asked to consider these as a ground for declining to grant relief. It is certainly not a question we are prepared to entertain.
29. The Judge was fully entitled to decline to receive the Vice President’s affidavit. It would not, in any event, have been of material assistance. The matters in issue fell to be determined by reference to what was recorded as occurring at the hearings in question. The views of those participating have no bearing on the key issues.

Costs appeal:

30. The appellants appeal against the costs awarded in the Supreme Court. They submit that, as the decision was being appealed, this Court should determine the costs to be awarded. That cannot be right. It was entirely appropriate for the Supreme Court to make an award of costs in favour of the respondents.

Results:

31. The appeal is dismissed.
32. The respondents are entitled to costs in the sum of $5,000 SAT.
    

HONOURABLE JUSTICE FISHER
HONOURABLE JUSTICE PANCKHURST
HONOURABLE JUSTICE HANSEN

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^[1] Reupena v Senara [2017] WSCA1.
^[2] A reference to Jones v DAS Legal Insurance Expenses Co Ltd [2003] EWCA Civ 1071.
^[3] Auckland Casino Ltd v Casino Control Authority [1995] 1 NZLR 142 (CA) at 151.
^[4] ibid n1.
^[5] Ibid.
^[6] Saxmere Co Ltd & Ors v Wool Board Disestablishment Co Ltd [2009] NZSC 70.
^[7] Siaso v Appellate of Land and Titles Court [2014] WSSC 26.
^[8] Leleua v Land and Titles Court [2009] WSSC 123.
^[9] Stehlin v Police [1993] WSCA 5.
^[10] Smith v Kvaerner Cementation Foundations Ltd [2006] App LR 03/21.
^[11] Auckland Casino Ltd v Casino Control Authority [1995] 1 NZLR 142 (CA) at 151.