Electoral Commissioner v FAST Party [2021] WSCA 4 (2 June 2021)

IN THE COURT OF APPEAL OF SAMOA
Electoral Commissioner & Anor v F.A.S.T. Party & Anor [2021] WSCA 4 (02 June 2021)

Case name:	Electoral Commissioner & Anor v F.A.S.T. Party & Anor (Reasons for recusal application)
Citation:	WSCA 4
Decision date:	02 June 2021
Parties:	ELECTORAL COMMISSIONER (First Appellant) & ALIIMALEMANU MOTI MOMOEMAUSU ALOFA TUUAU (Second Appellant) v FAATUATUA I LE ATUA SAMOA UA TASI (F.A.S.T. PARTY) (First Respondent) & SEUULA IOANE (Second Respondent)
Hearing date(s):	31 May 2021
File number(s):	CA04/21
Jurisdiction:	CIVIL
Place of delivery:	Court of Appeal of Samoa, Mulinuu
Judge(s):	Justice Tologata Tafaoimalo Leilani Tuala-Warren Justice Fepuleai Ameperosa Roma
On appeal from:	Supreme Court of Samoa, Mulinuu
Order:
Representation:	P. Rishworth QC (via video-link) & S. Ainuu for the First Appellant P. Lithgow & M. Leung-Wai for the Second Appellant B. Keith (via video-link), P. Chang & M. Lui for the First and Second Respondents
Catchwords:	Application dismissed
Words and phrases:	“recusal of a judge from sitting on case” – “doctrine of disqualification”
Legislation cited:
Cases cited:	Apia Construction Ltd v Samoa National Provident Fund [2017] WSCA 6 (15 September 2017); Muir v Commissioner of Inland Revenue [2007] NZCA 334; [2007] 3 NZLR 495; Rev. Elder Reupena v Rev. Elder Senara & Ors [2017] WSCA 1 (31 March 2017); Stehlin v Police [1993] WSCA 5 (23 March 1993).
Summary of decision:

CA 04/21

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER:

Articles 44 and 47 of the Constitution of the Independent State of Samoa

A N D:

IN THE MATTER: Declaratory Judgments Act 1988

A N D:

IN THE MATTER: The Electoral Act 2019

BETWEEN:

ELECTORAL COMMISSIONER appointed under the Electoral Commission Act 2019

First Appellant

A N D:

ALIIMALEMANU MOTI MOMOEMAUSU ALOFA TUUAU,

Second Appellant

A N D:

FAATUATUA I LE ATUA SAMOA UA TASI (F.A.S.T. PARTY)

First Respondent

A N D:

SEUULA IOANE, candidate for the Constituency of Alataua i Sisifo

Second Respondent

Coram: Justice Tologata Tafaoimalo Leilani Tuala-Warren
Justice Fepuleai Ameperosa Roma

Counsel: P. Rishworth QC (via video-link) & S. Ainuu for the First Appellant
P. Lithgow & M. Leung-Wai for the Second Appellant

B. Keith (via video-link), P. Chang & M. Lui for the First and Second Respondents

Hearing: 31 May 2021
Reasons: 2 June 2021

REASONS FOR RULING ON RECUSAL APPLICATION

Introduction

1. On 28 May 2021 the Second Appellant filed an application for recusal of the Chief Justice. Her application came on the back of an application by the Attorney General for the recusal of all judges hearing the appeal.
2. On the day of the hearing, 1 June 2021, the Attorney General sought leave of the Court to formally withdraw her recusal application. Leave was granted.
3. The Second Appellant wished to proceed with her application and was heard.
4. The Court dismissed the Second Appellant’s application with reasons to follow.
5. These are the reasons.

The Application

6. The Application is based on the ground that the Chief Justice is a cousin of the leader of the First Respondent, Fiame Mataafa Naomi (“Fiame”). The affidavits of the Second Appellant and Gatoloaifaana Amataga Gidlow are filed in support. Gatoloaifaana deposes the Chief Justice, herself and Fiame share a common ancestor four generations back.
7. Her submission is that the Chief Justice should have disclosed that he was related to Fiame. This non-disclosure she says has a bearing in suggesting that the Chief Justice may be biased. She relies on the reasonable apprehension of bias test (see Muir v Commissioner of Inland Revenue [2007] NZCA 334; [2007] 3 NZLR 495, Apia Construction & Engineering Ltd v Samoa National Provident Fund [2017] WSCA). She submits that a fair minded observer will reasonably apprehend that the Chief Justice will not be impartial. However she says that she does not question the integrity of the Chief Justice.
8. The Respondents submit that the doctrine of disqualification for alleged bias has to be applied somewhat robustly in a jurisdiction the size of Samoa, and that the test established by settled case law, has not been met (see Rev Elder Reupena v Rev Elder Reupena &Ors [2017] WSCA 1 and Stehlin v Police [1993] WSCA 5).

Reasons

9. The ground which has been advanced for the application to recuse the Chief Justice, that is, a common ancestor four generations back, does not meet the high threshold of the test preferred in the Reupena case;
   • “...a judge is disqualified if a fair minded observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide...”
10. Other than the biological connection, there are no other grounds advanced by the Second Appellant for recusal. This application undermines the Court and the Chief Justice by suggesting that he cannot sit in circumstances in which he has a fourth generation link to the leader of the First Respondent.
11. Overall, we find that there are no legitimate grounds to establish or even suggest apparent or actual bias on the part of the Chief Justice. The robust application of the doctrine of disqualification in Samoa requires the Applicant to show much more than the sole ground advanced in the present case, which lacks both merit and propriety.
    

JUSTICE TUALA-WARREN
JUSTICE ROMA