Peniamina v Land and Titles Court [2004] WSSC 12 (14 September 2004)

IN THE SUPREME COURT OF SAMOA

HELD AT APIA

IN THE MATTER of ALC 4363, 433 P.1 & P.2 concerning the title
ASIATA in the Branch of Maimaifaga, of Satupaitea, Savaii.

BETWEEN

ASIATA PENIAMINA & OTHERS of Satupaitea, Savaii.
Plaintiffs

AND

THE LAND AND TITLES COURT.
First Defendant

AND

ANAPU AIALII, SELESELE TANIELU & OTHERS
of Satupaitea, Savaii.
Second Defendants

Counsel: TRS Toailoa for plaintiffs
D Kerslake and L Vaa-Tamati for first defendant
Second defendants made no appearance

Hearing: 7 September 2004
Judgment: 14 September 2004

JUDGMENT OF SAPOLU CJ

Proceedings

In these proceedings, the Court has to deal with a motion by the first defendant, the Land and Titles Court, to strike out parts of the plaintiff's amended motion for judicial review (intituled First Amended Motion for Judicial Review 6 September 2004) and the entire or parts of the plaintiffs amended statement of claim (intituled First Amended Statement of Claim 6 September 2004). Counsel for the plaintiffs informed the Court that the second defendants had been served with the plaintiffs proceedings but counsel who was acting for the second defendants advised that the second defendants would not take part in the plaintiffs proceedings. This seems to explain why the second defendants have filed no documents in reply to the plaintiffs proceedings and have taken no part in the present proceedings by the first defendant. It is rather unfortunate that the second defendants have chosen not to take part in the plaintiffs or the first defendant's proceedings given the importance of the outcome of both proceedings to the interests of the second defendants.

The first defendant's motion seeks to strike out paragraphs (c), (d) and (e) of the plaintiffs amended motion for judicial review on the general ground that they are frivolous, vexatious and an abuse of process. In the course of the argument, counsel for the first defendant restricted this part of the strike-out motion to paragraph (c) of the amended motion for judicial review which seeks a declaration that the first defendant had breached the plaintiffs right to a fair trial provided under Article 9 of the Constitution. The first defendant's motion also seeks to strike out the entire of the plaintiff's amended statement of claim for not disclosing a cause of action that is maintainable in law or, alternatively, paragraphs 7, 8 and 9 thereof which allege bias. Affidavits were filed by the first-named plaintiff, Asiata Peniamina, in support of the plaintiffs amended motion for judicial review and by the first defendant in support of its strike-out motion.

Background

At the core of both proceedings by the plaintiffs and the first defendant is the title Asiata which is a paramount matai title of the village of Satupaitea in Savaii. As it appears from the affidavit of 21 August 2003 by the first-named plaintiff, Asiata Peniamina, on 10 November 1916 the Land and Titles Commission, which was the forerunner to the Land and Titles Court, the first defendant, decided that one Asiata Eliapo, the grandfather of the first-named second defendant Anapu Aialii was not a true heir of the title Asiata. Under the Samoa Land and Titles Protection Ordinance 1934, the Land and Titles Court was established and it replaced the Land and Titles Commission. The Land and Titles Court by its decision of 3 August 1954 accepted Asiata Lagolago, the son of Asiata Eliapo and uncle of the first-named second defendant, to be a holder of the title Asiata. But the Court's decision made it clear that Asiata Eliapo and Asiata Lagolago were not true heirs of the title Asiata and their family had no right to the title. The same decision also made it clear that the true heirs of the title Asiata in the branch of Maimaifaga were the heirs of Taetoloa and the heirs of Feauaina. That means those are the heirs who had the authority over the said title. On 28 September 1973, in proceedings relating to the Maimaifaga branch of the title Asiata, the Land and Titles Court held that the heirs of Taetaloa and the heirs of Feauaina formed the aiga potopoto (family) of the title Asiata in the branch of Maimaifaga. The heirs of Asiata Eliapo and Asiata Lagolago were not parties to those proceedings and are not mentioned in the Court's decision. On 22 September 1976 in further proceedings relating to the Maimaifaga branch of the title Asiata, the Land and Titles Court re-affirmed that the only heirs of the Maimaifaga branch of the title Asiata were the heirs of Taetoloa and the heirs of Feauaiga as found by the Land and Titles Commission in 1916. Again the heirs of Asiata Eliapo and Asiata Lagolago were not parties to those proceedings and are not mentioned in the Court's decision. On 23 September 1976 in proceedings relating to appointments that had been made to the title Asiata in the branch of Maimaifaga, the Land and Titles Court held that the authority to make appointments to the title Asiata in the branch of Maimaifaga was with the heirs of Taetoloa and Feauaina. The heirs of Asiata Eliapo and Asiata Lagolago were again not parties to those proceedings. On 31 August 1977, in proceedings relating to further appointments that had been made to the title Asiata in the Maimaifaga branch, the Land and Titles Court reaffirmed that the authority over the title Asiata in the Maimaifaga branch was with the heirs of Taetoloa and Feauaina and cancelled those appointments because they had been made without the consent of the heirs of Taetoloa and Feauaina. Once again the heirs of Asiata Eliapo and Asiata Lagolago were not parties to those proceedings. In his supplementary affidavit of 5 May 2004, the first named plaintiff says that in those proceedings in 1977, the first named second defendant, Anapu Aialii, sought to be joined as a party but his application was rejected by the then president of the Court on the basis that his family no longer had any claim to the title Asiata because of previous decisions of the Court. There were two other decisions made by the Court on 31 August 1977 in relation to other appointments made to the title Asiata in the branch of Maimaifaga. Those decisions were subsequently appealed to the appellate division of the Land and Titles Court but leave to appeal was refused.

By 1988 the first-named second defendant Anapu Aialii had been appointed a Samoan Judge of the Land and Titles Court, a fact which is important for the purposes of the plaintiffs amended motion for judicial review and amended statement of claim. He has since been appointed one of the deputy presidents of that Court. As it appears from one of the annexures to the affidavit of 21 August 2003 by the first-named plaintiff, on 20 June 1988, the then president of the Land and Titles Court, Justice Smith, a qualified lawyer and a Judge of the New Zealand Maori Land Court at the time, received an application from the first-named defendant for leave to rehear the decision of 10 November 1916 by the Land and Titles Commission and the decision of 3 August 1954 by the Land and Titles Court which has been re-established, as it is now, under the Land and Titles Act 1981. The said application was not before this Court during the hearing of these proceedings. But I presume that the purpose of the application was for the Land and Titles Court to rehear and reconsider whether Asiata Eliapo and Asiata Lagolago, the grandfather and uncle of the first-named second defendant, were true heirs of the title Asiata because the 1916 and 1954 decisions had held that they were not. On 12 June 1988 the then president of the Court granted the first-named second defendant's application for a rehearing. As it appears from the practice of the Land and Titles Court in the 1980's up to 1992, when an application to rehear a previous decision of the Court at first instance is granted, the matter is referred to the Court at first instance to deal with it. And that is what happened here.

Thus in 1991 the Land and Titles Court at first instance reheard the previous decisions of 1916 and 1954. The first-named plaintiff, as one of the parties to those proceedings, opposed the first-named second defendant's petition. On 27 March 1991, the Court held that Asiata Eliapo and Asiata Lagolago were true heirs of the title Asiata being descendants of one Polu, a sister of Maimaifaga. The decisions of 1916 and 1954 were set aside. The first-named plaintiff did not appeal that decision even though there is a right of appeal provided under the Land and Titles Act 1981. By motion of 21 August 2003, which has been substituted by the amended motion of 6 September 2004, the plaintiffs are seeking judicial review of the Land and Titles Court decision of 27 March 1991. A statement of claim dated 21 August 2003 was filed and it has been substituted by the amended statement of claim dated 6 September 2004. There was no objection to the amended motion for review and amended statement of claim but counsel for the first defendant sought leave at the commencement of the hearing of these proceedings to amend the strike-out motion so as to make it relate to the amended motion and amended statement of claim. Leave to amend its strike-out motion was granted to the first defendant.

Plaintiffs proceedings

Essentially, the plaintiffs amended motion for review which seeks an order for certiorari to quash the Land and Titles Court decision of 27 March 1991 and a declaratory order to declare the same decision null and void, is based on three grounds. These are (a) the said decision of the Land and Titles Court violated the principle of res judicata, (b) the Land and Titles Court has no jurisdiction to quash or set aside its earlier decisions which have become binding, and (c) the proceedings before the Land and Titles Court in 1991 were tainted by bias and therefore violated the plaintiffs right to a fair trial provided under Article 9 of the Constitution.

The plaintiffs amended statement of claim pleads essentially the same matters, res judicata, lack of jurisdiction, and bias on the part of the Land and Titles Court resulting in the alleged violation of the plaintiffs constitutional right to a fair trial. A claim for an order for certiorari and a declaratory order is made in the prayer for relief.

First defendant's strike-out motion

Insofar as the amended motion for review is concerned, the first defendant's strike-out motion is directed only at the issue of bias and the alleged consequential violation of the plaintiffs constitutional right to a fair trial. In relation to the amended statement of claim, the strike-out motion seeks to have the entire amended statement of claim struck out on the ground that it discloses no cause of action that is maintainable in law or, alternatively, to have paragraphs 7, 8 and 9 which allege bias struck out. The strike-out motion is not directed to the issues of res judicata or lack of jurisdiction.

Jurisdiction to review decisions of the Land and Titles Court

It is now well established that the Supreme Court has jurisdiction to review decisions of the Land and Titles Court which are contrary to the fundamental rights provisions of Part II of the Constitution: Alomaina Ulisese v Land and Titles Court (1998) (unreported judgment of Young J); Police v Italia Taamale (1995) (unreported judgment).

It has not, however, been decided whether the rule as to res judicata applies to proceedings before the Land and Titles Court which are inquisitorial proceedings and are commenced by filing a petition in relation to a matter or dispute concerning customary land or a matai title, instead of a statement of claim which must disclose a cause of action. It has also not been decided whether the Supreme Court has jurisdiction to review a decision of the Land and Titles Court which is being challenged only on the basis that the Court had no jurisdiction to make the decision. Perhaps this explains why the strike-out motion is not directed to the issues of res judicata and want of jurisdiction raised by the plaintiffs.

Bias

Bias is alleged to have vitiated the decision of the Land and Titles Court of 27 March 1991 on three grounds. These are (a) the deputy president of the Court who presided in the 1991 proceedings failed to recuse himself when asked to do so by the first-named plaintiff, at the commencement of those proceedings, on the ground of a suspected family connection between himself (the deputy president) and the first-named second defendant, (b) the said deputy president should also have recused himself for he had been a member of the Land and Titles Court in previous proceedings involving the Maimaifaga branch of the title Asiata, and (c) the said deputy president and members of the Land and Titles Court were work compatriots of the first-named second defendant who at the time had already become a Samoan Judge of the Court. In effect what is alleged is apparent bias and not actual bias. No evidence of actual bias was adduced.

The membership of the Land and Titles Court consists of a president, deputy presidents, Samoan Judges and assessors. The president is the Chief Justice or a Judge of the Supreme Court. The deputy presidents are appointed from the ranks of the Samoan Judge and have always been senior Samoan Judges. The Samoan Judges are non-lawyers but are holders of matai titles and are well versed in Samoan custom and usage. The assessors are also non-lawyers but are holders of matai titles and are well versed in Samoan custom and usage. To constitute a Court of first instance for the hearing of a petition, s35 of the Land and Titles Act 1981 requires that the Court shall consist of the president or a deputy president, at least two Samoan Judges, and at least one assessor. All members of the Court hearing a petition have an equal voice in arriving at a final decision of the Court. Under s37 of the Act, the law to be applied by the Court is Samoan custom and usage, the law relating to Samoan custom and usage, and the provisions of the Land and Titles Act 1981 and any relevant enactment. Any party, as that term is defined in s2 of the Act, who is not satisfied with a decision of the Court at first instance, may appeal to the appellate division of the Court by leave of the president.

Before the hearing of a petition at first instance, it has been the practice for a number of years now, that when the office of the registrar of the Court sends out to the parties notice of the hearing, the notice also requests the parties to advise the office of the registrar of any Judge they do not wish to sit at the hearing not less than seven days before the date of the hearing. This is to avoid any last minute application for a Judge to recuse himself and the possible disqualification of a Judge which may result in the Court not having a quorum. As it appears from page 2 of the Court's decision on 27 March 1991, that practice was also followed in this case. However, there was no pre-hearing objection from the first-named plaintiff. It was not until the commencement of the hearing on 25 March 1991, that the first-named plaintiff told the Court that he suspected the presiding deputy president had a family connection with the first-named second defendant. The presiding deputy president explained that there was no family connection between himself and the first-named second defendant. The first-named plaintiff then replied that he was satisfied with the explanation and the hearing proceeded. In the two affidavits filed by the first-named plaintiff in the present proceedings, there is also nothing which shows that there was a family connection between the presiding deputy president and the first-named second defendant. So there is no substance in the first ground raised in support of bias, that there was a family connection between the presiding deputy president and the first-named second defendant, but the deputy president failed to recuse himself when asked to do so by the first-named plaintiff.

As for the second ground of the amended motion for review that the presiding deputy president should have recused himself for he had been a member of the Court in previous proceedings held in 1977 involving the Maimaifaga branch of the title Asiata, it is important to refer to those proceedings. As already pointed out, the first-named second defendant and his family were not parties to any of those proceedings. Counsel for the plaintiffs told the Court that the first-named second defendant made an application to be joined as a party to those proceedings but the then president of the Court rejected his application. In respect of those proceedings, the Land and Titles Court delivered three separate decisions, all dated 31 August 1977. The aforesaid deputy president who was a member of the Court in all three decisions must have been a junior Samoan Judge at the time because of the three Samoan judges who were members of the Court, his name appears last. The practice of the Court when its members sign a decision of the Court is to sign in the order of seniority. The first Judge to sign would be the most senior judicial member of the Court and the last Judge to sign would be the most junior judicial member of the Court. Assessors also sign.

In accordance with the sequence in which the said three decisions of 31 August 1977 are annexed to the first-named plaintiff's affidavit of 21 August 2003, the first decision relates to five appointments that had been made to the title Asiata in the branch of Maimaifaga without the consent of the heirs of Taetoloa and Feauaina who had been given the authority over the title Asiata in the said branch in previous decisions of the Court. Those five appointments were therefore cancelled. The second decision was concerned with another five appointments made to the title Asiata in the same branch of Maimaifaga without the consent of the heirs of Taetoloa and Feauaina who held the authority over the title. Those five appointments were also cancelled. The third decision was concerned with other appointments made to the title Asiata in the same branch of Maimaifaga. Two of those appointments were cancelled as they were made without the consent of the heirs of Taetoloa and Fesuaina. Thus it is clear that the three decisions dated 31 August 1977 in respect of which the aforesaid deputy president was a member of the Court as a Samoan Judge were concerned only with the cancellation of unauthorised appointments made to the title Asiata in the Maimaifaga branch. The first-named second defendant was not a party to any of those decisions and the Court was not concerned with the question of whether Asiata Eliapo and Asiata Lagolago, the grandfather and uncle of the first-named second defendant, were heirs of the title Asiata. That is the question which was before the Court in 1991 for determination when the said deputy president presided in that capacity as one of the members of the Court which consisted of two other Samoan Judges and two assessors.

Article 9(1) of the Constitution 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 established by law." It is unnecessary to go into any analytical exercise as to the full meaning of the right to a fair trial enshrined in Article 9. What the plaintiffs are in effect saying is that there has been a violation of the constitutional right to a fair trial as the Court which heard and determined the proceedings in 1991 was not an impartial tribunal because of apparent bias. As to the test for determining whether bias or partiality exists in a particular case, counsel for the first defendant referred to two Samoan cases, one English case and one New Zealand case. The first of the Samoan cases is Sonny Stehlin v Police (1993) (unreported judgment of the Court of Appeal). In delivering the judgment of the Court of Appeal in that case, Cooke P said:

"The doctrine of disqualification for alleged bias has to be applied somewhat robustly in a jurisdiction of the size of Western Samoa. Indeed, the present tendency of case law around the world, including a recent decision of the House of Lords (R v Gough [1993] 2 A11 ER 724), is in the direction of robustness in this kind of matter. We are satisfied that no reasonable member of the Samoan community would suspect that, because he had been involved in the drafting of a provision which was not in the event even relevant, the Chief Justice was disqualified from presiding at the trial. There was certainly no real danger of bias. The point is without foundation."

In the second of the Samoan cases, Faasootauloa Pati v Charlie Westerlund (2000) (unreported judgment of the Supreme Court), I accepted and applied the real danger of bias test. In the House of Lords decision in R v Gough [1993] 2 A11 ER 724, Lord Goff who delivered the leading judgment with which Lord Ackner, Lord Mustill and Lord Slynn of Hadley concurred, said at p737:

"In conclusion, I wish to express my understanding of the law as follows. I think it possible, and desirable, that the same test should be applicable in all cases of apparent bias, whether concerned with justices or members of other inferior tribunals, or with jurors, or with arbitrators. Likewise, I consider that, in cases concerned with jurors, the same test should be applied by a Judge to whose attention the possibility of bias on the part of a juror has been drawn in the course of a trial, and by the Court of Appeal when it considers such a question on appeal. Furthermore, I think it unnecessary, in formulating the appropriate test, to require that the Court should look at the matter through the eyes of a reasonable man, because the Court in cases such as these personifies the reasonable man; and in any event the Court has first to ascertain the relevant circumstances from the available evidence, knowledge of which would not necessarily be available to an observer in Court at the relevant time. Finally, for the avoidance of doubt, I prefer to state the test in terms of real danger rather than real likelihood, to ensure that the Court is thinking in terms of possibility rather than probability of bias. Accordingly, having ascertained the relevant circumstances, the Court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him."

Counsel for the first defendant also cited from the judgment of Lord Woolf in the same case where His Lordship said at p740:

"It is because the Court in the majority of cases does not inquire whether actual bias exists that the maxim that justice must not be done but must be seen to be done applies. When considering whether there is a real danger of injustice, the Court gives effect to the maxim, but does so by examining all the material available and giving its conclusion on that material. If the Court having done so is satisfied there is no danger of the alleged bias having created injustice, then the application to quash the decision should be dismissed."

Further on at p740, Lord Woolf said:

"It was because Lord Hewart CJ's judgment in the Sussex Justices case [1923] EWHC KB 1; [1924] 1 KB 256 at 258 – 259[1923] EWHC KB 1; , [1923] All ER Rep 233 at 234 has created difficulties that in the Camborne Justices case, where exactly the same issue was involved, the Court warned against the misuse of Lord Hewart CJ's judgment since it was being 'urged as a warrant for quashing convictions or invalidating orders on quite unsubstantial grounds and, indeed, in some cases, upon the flimsiest pretexts of bias' see [1954] 2 All ER 850 at 855, [1955] 1 QB 41 at 51 – 52). As the Court pointed "out the continued citation of Lord Hewart CJ's maxim may lead to the erroneous impression that 'it is more important that justice should appear to be done than that it "should in fact be done.'"

This last citation from the judgment of Lord Woolf is worth bearing in mind given the fact that quite often the Land and Titles Court has been left without a quorum and an acting deputy president has to be appointed because all the deputy presidents have been disqualified due to accusations of bias from litigants which are often based on insignificant, unsubstantial or flimsy grounds. A number of Samoan Judges have also had to disqualify themselves from hearing cases because of similar applications to disqualify on grounds of apparent bias. An application for disqualification of a Judge should be approached robustly. Certainly, an application for a deputy president or Samoan Judge to disqualify because the applicant had previously lost a case before the same deputy president or Samoan Judge should be rejected as frivolous, vexatious and abuse of process.

In New Zealand, the Court of Appeal in Auckland Casino Ltd v Casino Control Authority [1995] 1 NZLR 142 considered two conflicting lines of authority on the test for bias between the English and Australian Courts and decided to follow R v Gough [1993] 2 A11 ER 724. In the New Zealand case of Collier v Attorney-General (2001) (unreported decision on an application for leave to appeal from the Court of Appeal to the Privy Council), which was also cited by counsel for the first defendant, the Court in refusing leave to appeal said:

"It goes without saying that in the determination of rights and liabilities everyone is entitled to a fair trial by an impartial tribunal. Where actual bias is shown or effectively presumed, the Judge is disqualified. Where the focus is on the appearance of bias, the test is whether there was a real danger of bias on the part of the judicial officer in question in the sense that the judicial officer might unfairly regard (or have unfairly regarded) with favour or disfavour the case of a party to the issue under consideration by the judicial officer. The test is objective, viewed through the eyes of the reasonable observer aware of all the relevant circumstances. It is not the subjective perception of the particular litigant. Speculative accusations of bias are not enough."

Further on, the Court said:

"Bias, actual or apparent (where no personal interest is in issue) involves the favouring of one party over another.....It is not bias to be wrong, error is not to be equated with bias. The view expressed repeatedly by the applicant, that it is for the litigant to decide whether the tribunal or Court he or she appears before is the fair and impartial tribunal or Court to which all are entitled, is wrong and unworkable. As is clear, the test for bias is an objective one to be applied by the Court before which any issue of bias actual or perceived, is to be determined."

With those statements of principles in mind, I turn now to the relevant circumstances of the present case. The Land and Titles Commission in 1916 and the Land and Titles Court in 1954 had determined that the true heirs of the title Asiata in the branch of Maimaifaga were the heirs of Taetoloa and Feauaina and they were the heirs who held the authority over the said title. The proceedings before the Land and Titles Court in 1977 were concerned with unauthorised appointments that had been made to the title Asiata of the Maimaifaga branch and the cancellation of those appointments. The question of who were the true heirs and who held the authority over the said title were not in issue for those questions had been decided in 1916 and 1954. The first-named second defendant was not a party to the 1977 proceedings because his application to be joined as a party to those proceedings was rejected by the then president of the Court. The deputy president who presided in the 1991 proceedings was a member of the Court in 1977. He had not for long been appointed as a Samoan Judge. In 1988, the first-named second defendant made an application to the then president of the Court, Justice Smith, a qualified lawyer seconded from the New Zealand Maori Land Court, for leave to rehear the decisions of 1916 and 1954 which had held that his grandfather Asiata Eliapo and his uncle Asiata Lagolago were not heirs of the title Asiata. The then president of the Court granted the application. In effect, the application must have been that Asiata Eliapo and his son Asiata Lagolago were heirs of the title Asiata and the decisions of the Land and Titles Commission in 1916 and the Land and Titles Court in 1954 were wrong. The Court that was convened to hear the proceedings in 1991 concerning the application by the first-named second defendant included the said deputy president who presided in that capacity. At the commencement of proceedings, the first-named plaintiff asked the said deputy president to disqualify himself from sitting as he suspected that there was a family connection between the deputy president and the first-named second defendant. The deputy president explained that he had no family connection with the first-named second defendant and the first-named plaintiff was satisfied with that explanation. The hearing then proceeded. There was then no objection to the deputy president presiding at the hearing because he had been a member of the Court which in 1977 dealt with appointments that had been made to the title Asiata. In the decision of the Court that was delivered on 27 March 1991, Asiata Eliapo and Asiata Lagolago were held to be heirs of the title Asiata in the branch of Maimaifaga and the decisions of 1916 and 1954 were set aside. There was no appeal against that decision even though there is a right of appeal provided under the Land and Titles Act 1981.

Applying the real danger of bias test to the relevant circumstances of this case from the eyes of a reasonable observer personified by the Court, I am satisfied that there was no real danger of bias in the sense that the deputy president in question might have unfairly regarded with favour, or disfavour, the case of the first-named second defendant or the case of the first-named plaintiff to the issue that was before the Court in 1991. That issue, as already pointed out, was not before the Court of which the said deputy president was a member in 1977 as a Samoan Judge. The decision of the Court 1991 also appears well-reasoned and based on the material, including genealogies, that were placed before the Court. Those parts of the plaintiffs amended motion for review which allege that the said deputy president should have recused himself, on the ground of bias, from presiding in the 1991 proceedings because he had been a member of the Court in previous proceedings involving the Maimaifaga branch of the title Asiata should, therefore, be struck out.

The third ground advanced in support of bias is that the deputy president and the Samoan Judges who were members of the Court who presided in the 1991 proceedings were all work compatriots of the first-named second defendant who by then had become a Samoan Judge himself. Counsel for the first defendant submitted that in view of the relevant circumstances and applying the real danger of bias test, the third ground advanced in support of bias should fail. It was submitted that it is not enough to rely solely on the maxim that justice must not only be done but it must also be seen to be done. The minimum requirement of the real danger of bias test requires more than mere speculative accusations of bias. The first-named plaintiff has also not provided sufficient evidence of any real danger of bias. Counsel for the plaintiffs, on the other hand, submitted that the fact that the members of the Court and the first-named second defendant were work compatriots give rise to a perception of bias.

Without intending any discourtesy to counsel, I have decided to approach the third ground raised in support of bias by applying the doctrine of necessity. On that basis, I would have to assume that there was a perception of bias or apparent bias. In Principles of Judicial Review (1999) by de Smith, Woolf and Jowell, it is stated by the learned authors at pp 439-440:

"A person who is subject to disqualification at common law may be required to decide the matter if there is no other competent tribunal or if a quorum cannot be formed without him. Here the doctrine of necessity is applied to prevent a failure of justice. So, if proceedings were brought against all the superior Judges, they would have to sit as Judges in their own cause. Similarly, a Judge may be obliged to hear a case in which he has a pecuniary interest.....The Judges of Saskatchewan were held to be required ex necessitate to pass upon the constitutionality of legislation rendering them liable to pay income tax on their salaries.....If it is possible to constitute a different tribunal unaffected by interest or bias, no difficulty arises."

In Constitutional and Administrative Law in New Zealand (2001) 2^nd ed by PA Joseph, the learned author says at p886:

"Persons who are prima facie disqualified for pecuniary or personal interest may be held, on grounds of necessity, competent and obliged to adjudicate. Necessity prevails where no other competent and duly qualified tribunal can be constituted. The Judges of Saskatchewan were held obliged ex necessitate to pass upon the constitutionality of legislation which made them liable to pay income tax on their judicial salaries. Similarly, the House of Lords has held that it has, of necessity, jurisdiction to review its own decisions reached through an unfair procedure. The Law Lords were the ultimate court of appeal and there was no other court which could correct procedural impropriety at the ultimate level."

If the Judges who constituted the Court that heard the application by the first-named second defendant in 1991 had disqualified themselves on the ground of apparent bias because they and the first-named second defendant were all Judges of the Land and Titles Court, that would have meant every other Judge of that Court would be disqualified from hearing the first-named second defendant's case. That is because all the Judges were work compatriots of the first-named second defendant. Thus there would be no Court to hear the first-named second defendant's case because of the provisions of s34 of the Land and Act 1981 which provide that the Land and Titles Court has exclusive jurisdiction over matters relating to matai titles and customary land. If that had happened, it would have been a failure of justice. But the first-named second defendant, like anyone else, was entitled to justice, whether or not his case had merit.

Counsel for the plaintiffs suggested that Judges from New Zealand, Australia, or American Samoa could have been brought in to constitute the Court. As it would have appeared from the passages cited from Principles of Judicial Review (1999) by de Smith, Woolf and Jowell and Constitutional and Administrative Law in New Zealand (2001) 2^nd ed by PA Joseph, there were instances where the doctrine of necessity provided sufficient justification for the Judges of Saskatchewan and for the House of Lords to hear cases despite the appearance of bias. Saskatchewan did not bring in Judges from another province of Canada or a foreign country. Likewise, England did not bring in Judges from another country. The doctrine of necessity was sufficient to provide justification without having to go for Judges from elsewhere. It is also to be remembered that the composition of the Land and Titles Court for the hearing of proceedings must include at least two Samoan Judges. One of the qualifications for appointment as a Samoan Judge is that the appointee must be the holder of a matai title. New Zealand and Australian Judges have no matai titles, a point which counsel for the plaintiffs appeared to accept. I therefore, hold that the doctrine of necessity provided sufficient justification for the members of the Court to hear and determine the proceedings in 1991.

It is also clear that the first-named plaintiff who was party to the relevant proceedings in 1991 did not seek disqualification of the presiding deputy president and Samoan Judges on the ground of bias because they were work compatriots of the first-named second defendant who had by that time become a Samoan Judge. Bias has only been raised in the present proceedings before this Court, some thirteen years after the Land and Titles Court delivered its decision in 1991. There is also a right of appeal under the Land and Titles Act 1981. The grounds of appeal include grounds normally regarded as grounds for judicial review. However, the first-named plaintiff did not appeal. As counsel did not raise or argue these matters, I would make no ruling on them.

For the foregoing reasons, the strike-out motion should succeed. Accordingly, paragraph (c) of the amended motion which allege violation of the right to a fair trial under Article 9(1) of the Constitution and grounds (3), (4), (5) and (6) of the amended motion for review which complain of bias and breach of the constitutional right to a fair trial are all struck out.

Cause of action

The second part of the strike-out motion seeks to strike out the entire amended statement of claim on the ground that it discloses no cause of action that is maintainable in law or alternatively, paragraphs 7, 8 and 9 thereof which allege bias. Counsel for the first defendant referred to r11 of the Supreme Court (Civil Procedure Rules) 1980 which provides for the proceedings to be instituted by way of action. These are proceedings for the recovery of debt or damages, the recovery of land or chattels, or for an order for specific performance. Rule 12 then provides that all other civil proceedings should be commenced by way of motion, except where otherwise provided by Act or by any rules made thereunder or by any order of the Court. Rule 13 further provides that every action shall be commenced by filing a statement of claim which shall set forth, inter alia, a cause of action and the relief claimed. So far there is no problem.

Under Part XVIII of the Rules, r188 requires that every civil proceedings not required to be commenced by way of action shall be commenced by way of motion supported by affidavit. Then under Part XIX of the Rules which applies to "extraordinary remedies", r196 provides that any request for an extraordinary remedy shall be accompanied by a statement of claim and supporting affidavit. Certiorari is listed as an extraordinary remedy but not a declaration. Thus a motion for a declaration or declaratory order is not required to be accompanied by a statement of claim in terms of the Rules. The problem here is that motions for quashing orders in the nature of certiorari, which is an extraordinary remedy, have been brought before this Court accompanied by statements of claim which disclose no cause of action or a pretty flimsy cause of action. In some of those motions counsel in support have at times been at pains to defend a statement of claim which discloses no cause of action that is maintainable in law. It was obvious that the real reason for filing the statement of claim was to satisfy the requirement for a statement of claim to accompany a motion for an extraordinary remedy as provided under r196. But there are cases where all that has happened is a tribunal exceeding its jurisdiction without damage or loss being caused to anyone. In such a case, it is not possible to see any cause of action so that it is pointless to file a statement. However, a statement of claim is nonetheless filed to satisfy the requirements of r196 in order to avoid a motion being stayed or struck out for failing to comply with the Rules. I have therefore come to the view that it should not be fatal to a motion for an extraordinary remedy such as certiorari if there is no accompanying statement of claim because the facts do not disclose a cause of action needed for the purpose of a statement of claim. Rule 206 provides that if any case arises for which no form of procedure is provided, the Court shall dispose of the case in such manner as best calculated to promote the ends of justice. It is also to be noted that counsel for the first defendant did not seek to strike out the amended motion for review if the entire statement of claim is struck out. That is a proper exercise of self-restraint.

Paragraphs 7, 8 and 9 of the amended statement of claim allege the same grounds of bias as set out in the amended motion for review. I have already struck out the parts of the amended motion which allege bias for the reasons already given. For the same reasons, paragraphs 7, 8 and 9 of amended statement of claim alleging bias and violation of the constitutional right to a fair trial are also stuck. That leaves only paragraphs 1 to 6 of the amended statement of claim which allege res judicata and lack or want of jurisdiction. As those remaining paragraphs disclose no reasonable cause of action, they are also struck out. In consequence the whole of the amended statement of claim is struck out. But as I have said, that should not be fatal to the plaintiffs motion for review or what remains of it.

All in all then, paragraph (c) and grounds (3), (4), (5) and (6) of the amended motion for review as well as the amended statement of claim are all struck out. That leaves the plaintiffs to proceed with their amended motion for review on the basis of res judicata and lack or want of jurisdiction.

Costs reserved.

CHIEF JUSTICE

Solicitors:
Toailoa Law Office for plaintiff
Attorney General's Office for first defendant