Leleua v Land and Titles Court [2009] WSSC 123 (4 December 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

Misc 434/08

IN THE MATTER
of applications for judicial review and for the enforcement of constitutional rights
pursuant to Article 4 of the Constitution of the Independent State of Samoa.

BETWEEN:

SEIULI BERNADETTE (TITI) GREY LELEUA
of Sinamoga, Music Teacher
Applicant

AND:

LANDS AND TITLES COURT
a court established pursuant to the provisions of the Lands and Titles Act
First Respondent

AND:

TAI DEVOE
of Vaitele, Businesswoman
Second Respondent

AND:

MANULELEUA VUI FAAFEII
of Vaimoso, Matai
Third Respondent

Counsels: Mr G. Latu for the applicant
Ms M. Annandale-Betham for the first respondent
Mr LT. Malifa for the second and third respondents

Decision: 4 December 2009

ORAL RULING OF NELSON J. (application to recuse)

When these proceedings came before me for hearing, I disclosed to counsels and the parties in my view quite properly, that I have connections both to the applicant and the third respondent to these proceedings. To the applicant, because we are both part of the aiga potopoto or extended family of the Tamaseu family in Apia and to the third respondent because he also holds the Vui title from the village of Lano in Savaii. I also mentioned my connection to the aiga Sa-Tamasese of Vaimoso village of which the second respondent is a member, a connection through the marriage of my fathers cousin to Tupua Tamasese the father of the present Head of State. I indicated to the parties I saw no difficulty in nevertheless presiding over their case as these family connections were remote and would not in any way affect a decision on their matter. In any event being connected to both sides of the argument should allay any concerns their clients may have.

The second and third respondents obviously disagreed and have filed an application for me to recuse and disqualify myself from presiding on the grounds that:

(i) I am related to all parties;

(ii) whichever way I rule there will be an appearance of bias either in favour of the applicant or the relevant respondents; and

(iii) either way the courts impartiality will be reasonably called into question.

The applicant in response indicates that notwithstanding these connections, she has no objection to my presiding. She argues that a connection whether by blood, marriage or matai title should not result in an automatic disqualification, rather the connection should be examined to determine if it is close or remote. Only in the former should disqualification occur. Furthermore if there is any close connection in this case, it is not to her but between myself and the third respondent as I and the applicant do not hold any titles in the Tamaseu family. But she has no objection to my presiding nevertheless.

The first respondent has taken no position on the application for disqualification which is unfortunate as the court could have been assisted by its submissions on the applicable law.

An initial point needs to be made because of the way in which the recusal application has come about and in order to correct any misconception on the part of counsels and the parties. And that is this: nothing is to be read into the fact that these connections were first brought to light by the court. As was observed by Justice Blanchard in the leading New Zealand authority on bias Saxmere Co. Ltd and others v Wool Board Disestablishment Co. Ltd [2009] NZSC 72 a case where the appellants alleged that one of the three Court of Appeal judges that presided over their appeal should have disqualified himself because of an appearance of bias arising out of a personal business relationship with the Queens Counsel who represented the respondent before the Court of Appeal, at paragraphs 31 and 32 of the judgment:

"31. It was suggested for the appellants that Wilson J’s disclosure gave some support for the view that bias could reasonably be apprehended. The Judge himself must have considered this was so, it was said, for otherwise he would not have said anything to counsel for the appellants. This argument has no force. It seeks to make something of the Judge’s consciousness that an observer might query the existence of the business relationship before having enough information to enable the observer properly to analyse its potential for influencing the Judge’s approach to the case. It is frequently the position that a judge will think it appropriate to alert counsel and their clients to some circumstance which might at first blush, without sufficient information, attract attention. The judge does so in order that the parties to the case can consider the situation and either indicate a lack of concern or, if thought fit, make a recusal application, upon which full consideration can be given to the validity of the objection to the judge’s sitting in the particular case."

"32. Notwithstanding what is said in Taylor v Lawrence [2002] EWCA Civ 90; [2003] QB 528 (a decision of the English Court of Appeal about English practice) such disclosure is to be encouraged in a small jurisdiction like New Zealand where the limited number of available replacement judges reinforces the general obligation for a judge to sit on all cases to which he or she has been assigned. It is not fairly to be taken as an acknowledgement that the circumstances give rise to a reasonable apprehension of bias. It merely indicates the need for the matter to be considered, on an informed basis, by counsel and client."

Further on in the judgment of Mr Justice Tipping at paragraph 48:

"48. I do not consider that the making of disclosure carries with it any implication that the very making of the disclosure indicates that the judge’s impartiality is compromised. In that respect I disagree with the view expressed by the Court of Appeal for England and Wales in Taylor v Lawrence. A matter should be disclosed in any case where it is possible that the observer might reasonably think the judge could be biased as a consequence of it. The judge or the court can then consider the responses of all the parties to the disclosure and assess what course to take on that fully informed basis."

I trust that those passages settle the issue.

Applicable Law:

It is clear from his submissions that counsel for the second and third respondents places significant if not sole reliance on the English case of R v Bow St. Metropolitan Stipendary Magistrate & others ex-parte Pinochet Ugarte (No.2) [1999] WLR 272 a decision of the United Kingdom House of Lords. Pinochet was of course a notorious ex-Chilean dictator who was arrested while visiting London pursuant to international warrants issued by a Spanish court alleging various crimes against humanity including torture and murder said to be committed while he was in office. The Divisional British Court quashed the warrants and on appeal to the House of Lords, Amnesty International ("AI") a well known international human rights body who had campaigned long and hard against Pinochet obtained leave to join the appeal proceedings. In the House of Lords in Pinochet No.1, the appeal was allowed by a majority judgment and the warrants in question were restored. Subsequently Pinochets legal advisors discovered that one of the law lords in the majority was an unpaid director and chairman of AI Charity Limited, a charity wholly controlled by Amnesty International and one of whose objectives was to procure the abolition of torture and investigate the disappearance of persons. Pinochet accordingly applied to the House of Lords to set aside the majority judgment in Pinochet 1 on the ground of apparent bias on the part of the law lord concerned. The House granted the petition on the basis that the fundamental principle that a man may not be a judge in his own cause was not limited to where a judge had a pecuniary interest in the outcome of a case but extended to where the judges decision would lead to promotion of a cause in which he was involved.

With respect to counsel I cannot see that the present situation is within the scope of the Pinochet prohibition. There is no question a man may not be a judge in his own cause but here, there is no cause to which I can be attached. I have no personal interest in the outcome of these proceedings which as I understand it relates to certain lands at Vaimoso which have been the subject of a Lands and Titles Court decision which is sought to be reviewed and in respect of which an application to determine status was lodged sometime ago with the Land & Titles Investigation Commission. The fact that I have certain connections to the main parties does not make their cause my cause and there has been no evidence put forward that it could have that effect or perception. Neither would my decision either way promote a cause in which I can reasonably said to be involved for the reality is, I have nothing whatsoever to do with the issues between the parties or the matter in dispute. That is quite unlike Pinochet where the law lord concerned had a direct interest in the outcome of the proceedings by virtue of his position in the wholly owned charitable subsidiary controlled by the very people involved in proceedings before him. A quite different kettle of fish to that presently before me.

In any event, Pinochet No.2 is not the leading authority in the United Kingdom on bias. See the very useful historical analysis undertaken by Justice McGrath in Saxmere paragraph 55 onwards. For many years the House of Lords decision in R v Gough [1993] UKHL 1; [1993] AC 646 advocating a real danger of bias test was the leading United Kingdom authority in this area but there were problems in the application of that test, so much so that the High Court of Australia refused to follow it and instead opted for a reasonable apprehension of bias test. See Webb v R [1994] HCA 30; (1994) 181 CLR 41 in particular the judgments of Chief Justice Mason, and Justice McHugh, which counsels can read for themselves pages 50 to 52.

Deanne J in that case also found a further reason for departing from the English rule. He said as paraphrased in Saxmere at paragraph 64:

"that applying a real danger of bias test, with the appellate court or the trial judge making the determination, would go a long way towards substituting for the doctrine of disqualification for appearance of bias one of disqualification for actual bias. A real danger inquiry to his mind would end up being an inquiry into the possibility of actual bias. By contrast, the test of a reasonable apprehension of bias as perceived by a fair-minded and informed observer would not. The real danger test would be likely at times to be unfairly damaging to the reputation of the judicial officer concerned and that of the whole judiciary. This would wrongly undermine public confidence in the judges integrity and would be contrary to the principal reason for having a doctrine of disqualification in situations of possible bias."

What Deanne J was concerned about in Webb was that despite the law lords saying that the court was not concerned to investigate whether bias had been established, examining the question of whether there was a real danger of bias inevitably leads to an inquiry into whether or not there was actual bias, an enquiry which presumed that the judge may have been possibly biased. See also paragraph 71 of the Saxmere decision.

Even in England itself, concerns were raised abut the test in R v Gough. In Re Medicaments (No.2) [2000] EWCA Civ 350; [2001] 1 WLR 700, Lord Phillips MR in delivering the judgment of the court said:

"The problem with the "real danger" test is particularly acute where a judge is invited to recuse himself. In such a situation it is invidious to expect a judge to rule on the danger that he may actually be influenced by partiality. The test of whether an objective onlooker might have a reasonable apprehension of bias is manifestly more satisfactory in such circumstances."

This led to the House of Lords in Porter v Magill [2002] 2 AC 357 finally overruling R v Gough and holding that the question should be whether the fair-minded and informed observer having considered the facts would conclude that there was a real possibility that the tribunal was biased. Of this new postulation Justice Magrath in Saxmere said:

"Although in England the test is expressed as one of real possibility of bias, whereas in Australia it is a reasonable apprehension of bias, in reality there is no significant difference between them. What is important is that the tests in those two jurisdictions have come together on a basis that emphasizes the need for the fair-minded observer to be fully informed of all relevant circumstances."

The test in Australia has long been one of reasonable apprehension of bias in the mind of the hypothetical fair-minded and fully informed observer. It is not and never has been in any Commonwealth jurisdiction what the parties perceive to be a possible or potential bias or appearance of bias. As Deanne J said in Webb at page 73:

"If in the particular case the proper conclusion is that a fair-minded lay observer with a broad knowledge of the facts would not entertain a reasonable apprehension of bias, that is the end of the issue of disqualification by reason of an appearance of bias."

As noted by Magrath in Saxmere at paragraph 80, the High Court of Australia revisited the issue of apparent bias in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 in a judgment which represents:

"the current leading statement in Australia of the principles to be applied and reflects the substantial experience in Australia of litigation of this kind. The circumstances said to give rise to apparent bias in Ebner involved trial judges in two separate cases having a financial interest in the form of shareholdings in a litigant. The majority of the High Court of Australia confirmed the principle in Webb that:

Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge, the governing principle is that a judge is disqualified if a fair-minded lay 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."

As stated by the High Court, the application of the apprehension of bias principal requires two steps:

"Firstly, it requires the identification of what it is said might lead a judge to decide a case other than on its legal and factual merits. The second step is no less important. That 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. The bare assertion that a judge has an "interest" in litigation or an interest in a party to it, will be of no assistance until the nature of the interest and the asserted connection with the possibility of departure from impartial decision making is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed."

Magrath goes on to note that when discussing situations where apparent bias is said to arise from an association the judge has, the High Court of Australia observed that the potential forms of association between a judge and a litigant are "manifold", importantly adding:

"It is not only association with a party to litigation that may be incompatible with the appearance of impartiality. There may be a disqualifying association with a party’s lawyer or a witness or some other person concerned with the case. In each case, however, the question must be how it is said that the existence of the "association" or "interest" might be thought (by the reasonable observer) possibly to divert the judge from deciding the case on its merits. As has been pointed out earlier, unless that connection is articulated, it cannot be seen whether the apprehension of bias principle applies. Similarly, the bare identification of an "association" will not suffice to answer the relevant question. Having a mortgage with a bank, or knowing a party’s lawyer may (and in many cases will) have no logical connection with the disposition of the case on its merits."

The Australian High Court has since had further occasion to emphasize the importance of articulating the connection between the matter complained of and the feared deviation in a case involving a trial judge’s association with a person said to have an interest in the litigation. It has held it was not sufficient to move directly from a finding of a close relationship to conclude that the judge might not bring an impartial mind to the case: see Smits v Roach (2006) 228 ALR 262 at paragraphs 54 & 58. The last part of the quote bears repeating as it has particular relevance to the present case namely, that it is of vital importance to articulate the connection between the matter complained of and the feared deviation in a case involving a trial judges association with a litigant. It is not sufficient to move directly from a finding of a close or any relationship to a conclusion that the judge ipso facto might therefore not bring an impartial mind to the matter at hand.

As stated by the court in Saxmere at paragraphs 93 & 94, there is a requirement:

"to be specific concerning the perceived connection between the circumstances giving rise to concern and whether they establish reasonable apprehension of impartiality. In this case the facts in relation to the association relied on must be spelt out, as well as why it is reasonable to be concerned that they objectively might lead the judge to decide the case other than on its true merits. Establishing the existence of an association is never of itself enough to disqualify the judge. It must be shown that its nature is such as to cause concern objectively that it may influence the judges decision making. This requirement of articulation of the connection ensures that disqualification is not established through a superficial impressionistic reasoning.

While the test is one of possibility not probability, it is not enough that the circumstances create a vague sense of unease or disquiet. It is always for the person who asserts there is a situation giving rise to a reasonable apprehension of bias firmly to establish that is the case."

The New Zealand Supreme Court in Saxmere has adopted the Ebner approach of the High Court of Australia so that the test now appears settled in New Zealand and it is whether there is a reasonable apprehension of bias on the part of the fair-minded lay observer cognizant of all the relevant facts. Further, that the test is a two step process. First, identification of what it is asserted might lead the judge to decide a case other than on its legal and factual merits and secondly, an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. As to what constitutes a fair-minded lay observer, these are covered extensively in the judgments of Justices Blanchard, Tipping and Magrath in Saxmere and I do not propose to canvass them here as they are of limited importance to the present matter. Counsels pursuing recusal application should however fully familiarize themselves with all these aspects of the law.

The position in Samoa:

The issue of bias has been considered on a number of occasions by the Samoan courts most recently in Asiata Peniamina and others v Land and Titles Court and others [2004] WSSC 12 where the Honourable Chief Justice opted for a real danger of bias test following R v Gough and the New Zealand Court of Appeal in Collier v Attorney General, (unreported) 13 November 2001.

On appeal the Samoa Court of Appeal [2004] WSCA 1 approved of this approach and its robust application as advocated by Lord Cooke in Stehlin v Police [1993] WSCA 5 and noted that Pinochet No.2 did not lay down a different test and that the House of Lords had not as suggested by the appellants resiled from the R v Gough approach. In fact Lord Browne-Wilkinson in giving the leading judgment in Pinochet No.2 expressly stated that it was:

"unnecessary to determine whether the test of apparent bias laid down in R v Gough ("is there in the view of the court a real danger that the judge was biased?") needs to be reviewed in light of subsequent decision. Decisions in Canada, Australia and New Zealand have either refused to apply the test in R v Gough or modified it so as to make the relevant test the question whether the events in question give rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the judge was not impartial: see for example the High Court of Australia in Webb v R. It has also been suggested that the test in R v Gough in some way impinges on the requirement of Lord Hewart’s dictum that justice should appear to be done: Since such a review is unnecessary for the determination of the present case I prefer to express no view on it."

I am surprised this Court of Appeal decision was not cited by counsel for the second and third respondents who made this application as part of his oral submissions as this is the leading authority in this jurisdiction and he was appellants counsel in Peniamina. But be that as it may, Peniamina remains the prevailing authoritative statement of the situation under Samoa law namely that the test to be applied is whether in the circumstances there is a real danger of bias in my presiding but nevertheless noting what the Court of Appeal said that an alternative test "postulating the hypothetical reasonable and informed observer does not usually produce any difference from the real danger test."

The following should also be noted. In both the Supreme Court and Court of Appeal in Peniamina, the High Court of Australia authorities referred to earlier do not appear to have been placed before the court, neither was Porter v Magill which over-ruled R v Gough. It is also now apparent from the New Zealand Court of Appeal judgment in Muir v Commissioner of Inland Revenue [2007] NZCA 334; [2007] 3 NZLR 495 and the New Zealand Supreme Court judgment in Saxmere that the New Zealand courts apply the reasonable apprehension of bias in the mind of the informed fair-minded lay observer test and not a real danger of bias standard. Clearly the United Kingdom, Australia and New Zealand courts saw problems with the real danger test which is the test we must still apply by virtue of Peniamina. But in doing so I am bound to note that we are out of step with modern Commonwealth trends as even the Canadians apply the reasonable apprehension of bias test. See paragraphs 77-79 of Saxmere for a review of the Canadian position.

For my part I prefer the High Court of Australia approach which has found favour in New Zealand and perhaps the time has come for our appellate court to revisit the matter. Until such time however, this court is bound by the Court of Appeal judgment in Peniamina and must apply the test and principles laid down therein. That test was stated in the Supreme Court in Peniamina in the following terms:

"It goes without saying that in the determination of rights and liabilities everyone is entitled to a fair trial by an impartial tribunal. (In Samoa this is enshrined in Article 9(1) of the Constitution). 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 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."

And further on that:

"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."

Decision:

Applying the Peniamina principles to the present situation: the second and third respondents main argument is that because I am related to the primary parties to the litigation I am therefore acting as a judge in my own cause. It is an established principle of law that no man should act as a judge in his own cause, one going back to Roman times and the phrase "nemo judex in sua causa.", Pinochet No. 2 is relied on as establishing that this prohibition is breached where a judge is closely connected to one of the parties to the proceedings. In Pinochet it was clear the law lord concerned had a close connection to one of the litigants because he was chairman and a director of a wholly owned subsidiary of one of the parties, a subsidiary having common aims and objectives with its owners. In that case, there was a clear connection as well as a shared interest in the outcome of the proceedings. The learned law lord plainly should have recused himself from sitting.

Here, the connection is not close or immediate. It is through titles in the case of the third respondent and through marriage to my fathers cousin in the case of the second respondent, and as I understand her genealogy, marriage into a different branch of the family. These are not what I would regard as close connections. There is a further point to be made: we live in a country where everyone is related to each other in one way or another, through blood lines, through titles, through marriage. Extended families are by their very nature large not only on the paternal side but on the maternal side. But there are relatives and there are relatives. We all know we do not associate on a regular basis with all persons that we are related to or have connections with, otherwise we would end up with no personal family time of our own. There are connections people are not even aware of until funerals or family weddings. I have an adopted family connection to one of the branches of Mr Malifa’s extended family at Afega, something he probably does not know about, I have never regarded that as an impediment to presiding over his cases.

The point is this: there are people we are connected to in one way or another that we see all the time, that we carry out the business of life with on a regular basis. But there is also a very large amorphous group that we have essentially little or nothing to do with and both the applicant and the second and third respondents will confirm that they fall into that category. They have certainly provided no evidence about relevant matters that I may have overlooked in that assessment that may suggest otherwise.

Judges have a duty to sit on the cases allocated to them. A duty that is sometimes not often well understood in this country by for example those in the customary land court where these proceedings originated. This duty should be carried out unless there is good reason not to. As stated in Saxmere at paragraph 88:

"Judges should not automatically disqualify themselves in response to litigants suggestions that there is an appearance of lack of impartiality. Judges allocated to sit in a case have a duty to do so unless they are disqualified. If a practice were to emerge of judges disqualifying themselves without having good reason, litigants may be encouraged to raise objections which are based solely on their desire to have their case determined by a different judge who they think is more likely to decide in their favour. Such a development would soon raise legitimate questions concerning breach of the rights of parties and would not in my view be conducive to the ends of and administration of justice."

The remote connections that I have to the parties in this case do not outweigh my duty to preside and no other reason has been advanced to justify saying that I would possibly not bring an impartial mind to my task. For completeness I would add that were I to apply the test which in my respectful view is the more appropriate one of reasonable apprehension of bias, I would come to the same conclusion namely that there exist no grounds upon which the informed lay observer would reasonably apprehend bias on the part of my presiding as trial judge in this litigation.

Furthermore, the test as outlined earlier is a two-step process and the second step requires an articulation of the connection between the matter complained of and the feared deviation from a decision on its merits. It is not enough to move from a finding of a relationship to one of the parties towards a conclusion that therefore by virtue of that relationship, the judge might not bring an impartial mind to his task. Here nothing has been put forward by the second and third respondents to satisfy this requirement or to establish that because of my connection to the parties I would therefore not decide the litigation impartially and without fear or favour in accordance with my oath as a judge.

Accordingly, the application for recusal and disqualification by the second and third respondents is dismissed. Costs on the application are reserved to be dealt with at the conclusion of the substantive hearing of this matter. The matter should now be set down for mention so that a trial date can be assigned to it. Adjourned for mention to the 14 December 2009 to set a date for hearing.

JUSTICE NELSON