Lauvai v Land and Titles Court [2010] WSSC 185 (20 September 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

TOOMALATAI LAUVAI,
Samoan Matai of Vailoa, Aleipata
Plaintiff

AND:

The LAND AND TITLES COURT

a judicial body constituted under the Lands and Titles Act 1981
First Defendant

AND:

PUEPUEMAI FAAPUSA and ALAFAAPAE UAINA
Samoan Matai and others of Vailoa Aleipata.
Second Defendant

AND:

MUAGUTUTIA LEIATAUA SITIVI
and others of Vailoa Aleipata
Third Defendant

AND:

LEONE SAUMALU TUI II
and others of Vailoa, Aleipata
Fourth Defendant

Counsel: TRS. Toailoa for the plaintiff
D. Kerslake for the first respondent
M. G. Latu for the second respondent
A. Roma for the fourth respondent
No appearance by third respondent

Hearing: 26th May 2010
Decision: 20th September 2010

DECISION OF THE COURT

1. The plaintiff is a matai of the village of Vailoa Aleipata. For a number of years dating back to 1962 he and other matais of his villages including the second, third and fourth defendants have been engaged in numerous legal battle in the Land and Titles Court (the first defendant) over the ownership and occupation of the land or parts of the land called Vailoa.

2. The last decision of the first defendant concerning the said land is a decision by its Appellate Division of 5th June 1997 following a lower court ruling dated 24th May 1991 which identified boundaries separating different sections of Vailoa land under the ownership and occupation of the plaintiff and by the second defendant. Leave was granted to the plaintiff to appeal the decision of the lower court.

3. In dismissing the appeal the plaintiff was also ordered to vacate the portion of the land he was then occupying by a certain date. As a consequence of his refusal to vacate the land as ordered the plaintiff was charged and convicted of contempt in September 1998 and imprisoned for six weeks.

4. He has continued to defy the court order. By letter dated 19th January 2000 the then Registrar of the first defendant informed the plaintiff that he will again be prosecuted for contempt if at the expiration of two weeks he continues to occupy the land.

5. In response the plaintiff on the 20th January 2000 filed a Statement of Claim seeking a judicial review of the lower court decision of 1991 and the appellate court decision of 1997. He also seeks a judicial review of earlier decisions of the first defendant in 1962 and 1965.

6. By amended statement of claim dated 19th May 2000 the plaintiff alleges that the lower court decision of 1991 and the appellate court decision of 1997 should be reviewed and declared null and void as they infringed article 9 (1) of the Constitution on the grounds of:

(i) Actual or perceived bias of some of the presiding judges.

(ii) Bias, incompetence or misconduct of court staff who were involved either with the preparation of reports or plans for the court.

(iii) Unfair conducting of Court hearings.

(iv) Subsequent decisions dealing with the subject matter or related matters failing to property take into account or at all previous decisions of the court including the failure of the Court to deal with conflicting decisions.

(v) The court failing to take proper account and/ or apply the relevant law.

7. By Notice of Motion dated 20th December 2004 the plaintiff seeks from this court, the following orders:

(i) That the decision of the Land and Titles Appellate Court in LC 5333 P1 – P3 dated 5th June 1997 be set aside and quashed.

(ii) That the decision of the Land and Titles Court in LC 5333 P1 – P3 of 24th May 1991 be set aside and quashed.

(iii) That the decision of the Land and Titles Court in LC 2668 of 29th November 1965 be set aside and quashed.

(iv) That the decision of the Land and Titles Court in LC 2555 of 26th November 1965 be set aside and quashed.

Upon the grounds:

(i) That the make up of the Land and Titles Appellate Court in LC 5333 P1 – P3 violated the plaintiff's constitutional right to a fair trial in that the presiding Deputy President was related by blood to one of the prevailing parties and should therefore, had disqualified himself from presiding and further, the court had no jurisdiction to deal with the matter.

(ii) That the make up of the Land and Titles Court in LC 5333 P1 – P3 violated the Plaintiff's Constitutional right to a fair trial in that one of the two judges objected to by the plaintiff at the start of proceeding declined to recuse himself, and the judge who did recuse himself continued to be part of the bench when the bench went to visit the disputed land at Vailoa Aleipata.

(iii) That the court in LC 2555 of 26th November 1965 and LC 2668 of 29th November 1965 had no proper jurisdiction to reconsider the matter of removal of the plaintiff's house contrary to a final decision of the Court in LC 2404 of 6th May 1964 and thereby violated the plaintiff's constitutional right to a fair trial.

As the third ground was abandoned during the course of hearing legal arguments the court will therefore confine its ruling on grounds (i) and (ii).

Right to a fair trial under Article 9 (1) Constitution

8. It is common ground that the Supreme Court has jurisdiction for judicial review when it is alleged that there has been a violation of the plaintiff's right to a fair trial. The outer clause in section 71 of the Land and Titles Act 1981 does not preclude the Supreme Court jurisdiction to review. Article 4 of the Constitution overrides section 71. That article provides:

"4 (1) " Any person may apply to the Supreme Court by appropriate proceedings to enforce the rights conferred under the provisions of this part"

(2) "The Supreme Court shall have power to make all such orders as may be necessary and appropriate to secure to the applicant the enjoyment of any of the rights conferred under the provisions of this part"

9. The plaintiff relies on article 4 for the Supreme Court to secure him the enjoyment of his fundamental right to a fair hearing guaranteed under article 9 (1) of the Constitution. The relevant words are:

9 (1) "In the determination of his civil rights and obligations ... every person is entitled to a fair ... hearing ... by an independent and impartial tribunal established under law ..."

10. The plaintiff alleges that there was actual or perceived bias of two judges of the lower court and of the President in the appellate court and as a result his right to a fair trial by an independent and impartial tribunal, guaranteed by Article 9 (1) has been breached.

11. In Alomaina Ulisese & Others v Land and Titles Court & Others (unreported, Supreme Court of Samoa, 1998) Young J observed:

"Any attempt to define what "fair" means should be avoided. The facts of each case will dictate how the idea "fairness" is to be applied. At least it is likely to encompass the typical review grounds of want of jurisdiction, natural justice, bias, and no doubt others."

In contending that the defendants denied to the plaintiff the right to a fair trial, the plaintiff also suggest that in the process, the defendants also breached the rules of natural justice and erred in law.

Bias allegation against the President ("President")

12. It is alleged that the President and one Tufugafale Sauaga, who sided with the second defendant are second cousins. The said Tufugafale Sauaga is the son of a woman Meavale from a former union before she married the President's uncle who lived at Matatufu. Tufugafale is a matai of the second defendant.

13. It is also alleged that Tufugafale Sauaga's brother named Su'a Sinapati, and the President's brother were in the same responding party in a court case in the Land and Titles Court concerning the Matai title Matautia of the village of Lotofaga.

President's response to the Bias allegations

14. Although he knew Meavale who married his maternal uncle had a son from a former union he has never met him, neither did he know of his name although he knew that he was one of the holders of the Tufugafale matai title, so that before the hearing of the plaintiff's appeal the president was not aware of any family connection to the person called Tufugafale Sauaga, nor was he aware that Tufugafale Sauaga was a member of the second defendant's family.

15. One of the reasons why the President was not conversed with Meavale's family was due to the fact that he left Samoa in 1959 at the age of 9 years and returned to live in 1985 until 2000. And during those years there were no occasions he was aware of when his uncle's family at Matautu had any dealings with Meavale's family. He was not aware of Meavale's family and village. He had no cause to inquire. Indeed he was ignorant of any connection between Meavale and the second defendant.

Allegation of Bias against Judge Anapu Aialii ("Anapu")

16. It is alleged that Anapu recused himself from presiding as a judge after objections raised by the plaintiff, but when the bench visited the land for inspection before it delivered its decision, Anapu traveled in the same vehicle with the bench.

Response by Anapu to the Allegations

17. Anapu deposed in his affidavit that the recused himself. He admits being present in the vehicle with the panel of judges and assessors who went to inspect the land but it was for the sole purpose of being dropped off at his home village of Saanapu in the Safata district after the inspection.

18. The Chief Executive Officer of the Ministry of Justice and Courts Administration who is also the Registrar of the First Defendant confirmed in his affidavit that the office vehicle pick up and drop off judges at their homes.

Allegation of Bias against Judge Togaga'e Leaupepe Vase ("Togaga'e")

19. In respect of Judge Togaga'e the plaintiff believes the judge has good cause not to like the plaintiff. His belief is grounded on the following facts:

(i) the judge is related to and a strong supporter of one To'omalatai Siaki who had a legal battle with the plaintiff over the title Toomalatai in the Lands and Titles Court.
(ii) A son of the said Toomalatai Siaki is married to the daughter of the second defendant
(iii) Relationship between the plaintiff and Toomalatai Siaki has been bitter and violent.

20. The plaintiff alleges Togaga'e should have recused himself when requested by the plaintiff before the hearing commenced.

Response by Togaga'e

21. Before the hearing commenced the plaintiff objected to Togaga'e presiding as they were related. This is confirmed by the transcript and the decision of the Court. But Togaga'e refused because he was not related to the plaintiff. The second, third and fourth defendants also agreed for Togaga'e to preside.

The Law on Bias

22. The issue of bias has been considered in a number of instances by the Samoan Courts. It is sufficient to refer to the two decisions of the Samoa Court of Appeal in Stehlin v Police (1980 – 1993) WSLR 568 and Asiata Peniamina v Land & Titles Court & others (unreported 17/5/2004) which adopted the approach advocated by Lord Goff in R v Gough (1993) 2 All ER at 737 asking whether, in the relevant circumstances disclosed in the material before him there was a real danger of bias on the part of the judge. This same approach was favoured by the New Zealand Court of Appeal in John Michael Collier & Another v Attorney General (2001) NZCA 328 13/11/2001 which stated at paragraph 21:

"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 have regarded) with favour or disfavour the case of a party to the issues under consideration by the judicial officer. (See the discussion in Riversider Casino Ltd v Moxon (2001) 2NZLR 78 at paras 26 – 31."

And at paragraph 22:

"The test is objective, in this case viewed through the eyes of the reasonable observer aware of all the relevant circumstances. It is not the subjective perception of the particular litigant otherwise of course there would be opportunity, contrary to the public interest for the litigant to exclude judges from sitting because of the litigant's own perception, though not meeting the reasonable observer test".

23. To attempt to define or list factors which may or may not give rise to a real danger of bias may be a futile task. As the English Court of Appeal in Locabail (UK) Ltd v Bayfield Properties Ltd [1999] EWCA Civ 3004; (2000) QB 451 observed at paragraph 25:

"It would be dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger of bias. Everything will depend on the facts, which may include the nature of the issue to be decided."

24. Finally it was recognized by the Samoa Court of Appeal in Stehlin v Police that the doctrine of disqualification for alleged bias has to be applied robustly in this jurisdiction. As Lord Cooked stated:

"The doctrine of disqualification for alleged bias has to be applied somewhat robustly in a jurisdiction the size of Western Samoa. Indeed the present tendency of case law around the world, including a recent decision of the House of Lords in R v Gough is in the direction of robustness in this kind of matter."

Discussion

25. It appears from the affidavits filed in support of the allegation of bias against the President that the person Tufugafale Sauaga, alleged to be a second cousin of the President, did not live or resided at Matatufu with the President's uncle. Similarly it could not be shown by the affidavits of the plaintiff that the President knew that Tufugafale and his mother Meavale were members of the family of the Second defendant.

26. More importantly Tufugafale was not a party or sided (as alleged by the plaintiff) with the second respondent in either the lower court hearing or the appellate court hearing. The transcript of the lower court hearing and of the appellate court hearing confirmed Tufugafale Sauaga was not a party or a member of the Second defendant's party.

27. As the President was only nine (9) years old when he left Samoa in 1959 and returned twenty six years later to live permanently in Apia after the death of his uncle and wife Meavale, he was not aware of the person Tufugafale Sauaga and he certainty knew nothing of any connection between Tufugafale Sauaga and the second respondent. The connection through his dead uncle, although distant, was nonetheless unknown to the President.

As Nelson J observed in Leleua v Land and Titles & others (unreported, Supreme Court of Samoa, 14/12/09)

"We live in a country where everyone is related to each other in one way or another, through blood lines, through titles, through marriage ...We all know we do not associate on a regular basis will all persons we are related to or have connections with ...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 on 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 ..."

28. At most, the allegations tantamount to speculations and cannot, adopting the objective test, in the relevant circumstances disclosed in the material before the President; can it be said that there was a real danger of actual or perceived bias or even a reasonable apprehension of bias of the President which would cause him to favour the second defendant over the plaintiff.

29. In respect of the allegation of bias against Anapu the essence of the allegation appears to be that after recusing himself from the panel of judges, he did however appear to have an interest in the outcome of the dispute by accompanying the trial Bench during their inspection of the land.

30. In his appeal submissions the plaintiff in his view of Anapu said:
    

"We did not see that he played a part in the inspection but for three hours to Aleipata and three hours to Apia, he was in the company of the Bench, and we cannot but wonder what part he may have played in the informal conversations about the inspection, in this matter, in that six hours. He was a stranger disqualified on his own agreement, closeted for six hours with the presiding Bench. That looks very suspicion to us."

31. Mere suspicion or speculative suspicion and accusations of bias does not satisfy the requirement of the real danger of bias test. Anapu was in the car for a reason; he was to be dropped off at Saanapu Safata on the return trip to Apia. Undoubtedly the plaintiff's suspicion towards Anapu was because he and Anapu were on opposing sides in a court case in the Lands and Titles Court as he submitted in his leave to appeal submissions.

It was that very reason that Anapu recused himself. To attempt to discredit a judge to boost his application for judicial review by insinuating that Anapu influenced the Bench is futile and misleading.

32. In respect of the allegation against Togaga'e the lower court transcript of the proceedings and its decision demonstrates clearly that the plaintiff's objection to Togaga'e was that they are related. Togaga'e opposed the allegation and the other parties had no problems with Togaga'e presiding.

33. In his leave to appeal application however Togaga'e was alleged by the plaintiff to be related to and a strong supporter of To'omalatai who opposed the plaintiff in a separate court action. The family relationship of the plaintiff to Togaga'e alleged by the plaintiff in the lower court, disappeared in the appellate court.

34. The accusations are speculative. Indeed when regard is had to all the relevant circumstances, there is simply no ground raised for doubting the ability of the President and judge Togaga'e to decide the cases in accordance with the judicial oath "without fear or favour, affection or ill will" where the issues before the court principally related to the ownership and occupation of the land Vailoa and neither of the judges had any blood or family relationship to any of the parties. There were past decisions which the lower court and appellate court considered.

35. Judges should not automatically disqualify themselves in response to litigants' suggestions that there is an appearance of lack of impartiality. As remarked by McGrath J in Saxmere Co. Ltd & others v Woolboard Disestablishment Co. Ltd (2009) NZSC 72 at paragraph 88:

"Judges should not automatically disqualify themselves in response to litigants' suggestions that there is an appearance of lace 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 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."

36. In view of the conclusions reached by the court, it will not be necessary, with all respect to counsel for the first defendant, to consider the doctrine of necessity which counsel diligently argued in his written submissions.

Conclusions and Costs

(a) The application for judicial review is refused.

(b) The plaintiff is to pay costs of:

(i) $800 to the first defendant

(ii) $800 to the second defendant

(iii) $400 to the fourth defendant

JUSTICE VAAI