Siaso v Appellate of Land and Titles Court [2014] WSSC 26 (14 March 2014)

SUPREME COURT OF SAMOA

Tuitolovaa Siaso v Appellate of the Land and Titles Court, Agafili Ioane and others [2014] WSSC 26

Case name: Tuitolovaa Siaso v Appellate of the Land and Titles Court, Agafili Ioane and others

Citation: [2014] WSSC 26

Decision date: 14 March 2014

Parties: AGAFILI LAAU TUITOLOVAA, NOATAUTALAMAAITU TUITOLOVAA SIASO (Appellants) and APPELLATE DIVISION OF THE LAND AND TITLES COURT, AGAFILI IOANE, LEILUA TALENI ALOFA KOFE, FIAPAIPAI KOFE and others of Salailua, Savaii (Respondents).

Hearing date(s): 11 September 2013

File number(s):

Jurisdiction: Civil

Place of delivery: Mulinuu

Judge(s): Justice Vaai

On appeal from:

Order:

Representation:
TRS Toailoa for applicants
K Seuseu and A Iati for first respondent

Catchwords:

Words and phrases:

Legislation cited:

Cases cited:
Toailoa v Lands and Titles Court
Re Medicaments and Related Classes of Goods
R v Gough
Stehlin v Police
Man O’War Station Ltd v Auckland City Council
Auckland Casino Ltd v Casino Control Authority
Ebner v Official Trustee in Bankruptcy
Saxmere Company Limited v Woolboard Disestablishment Co.Ltd
Leleua v Land and Titles unreported Supreme Court of Samoa

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN

AGAFILI LAAU TUITOLOVAA, NOATAUTALAMAAITU TUITOLOVAA SIASO and others of Salailua, Savaii

Appellants

A N D:

APPELLATE DIVISION OF THE LAND AND TITLES COURT, constituted under section 77 of the Land and Titles Act 1981

First Respondents

A N D:

AGAFILI IOANE, LEILUA TALENI, ALOFA KOFE, FIAPAIPAI KOFE, and others of Salailua, Savaii

Second Respondents

A N D:

LEULUAIALII PERIVE, MAIAVA TITI LEULUAIALII, MAIAVA SOPO LEULUAIALII, LETAULAU LEULUAIALII LUATUA, of Salailua, Savaii

Third Respondents

A N D:

LEULUAIALII LELEI, LEULUAIALII SIKUEA, MATAPULA TOMASI MATAPULA, and others of Salailua, Savaii

Fourth Respondents

Counsel: TRS Toailoa for Appellants

K Seuseu and A Iati for Respondents

Hearing: 11 September 2013

Judgment: 14 March 2014

JUDGMENT OF THE COURT

1. Following a decision of the Court of first instance in the Land and Titles Court which granted to the applicants beneficial ownership (pule) of certain land in the village of Salailua, the second, third and fourth respondents filed appeals to the appellate division of the Land and Titles Court. The appellate court consisting of the President and two Land and Titles Court judges granted the appeal and vested the pule of the land in the respondents.
2. It is that decision of the appellate division in 2011 which the applicants, by notice of motion for judicial review, seek to quash and or set aside on the grounds that the applicant’s right to a fair trial by an independent tribunal guaranteed by Article 9 of the Constitution has been violated.
3. Particulars of violation of the applicant’s rights as set out in the motion are:
   • (a) there was actual or perceived bias of the President and the two judges who presided at the hearing of the appeal;
   • (b) there are family connections between the President and the two judges and the parties that prevailed at the appeal.
   • (c) That as a consequence of those family connections the President and the two judges should have recused themselves so that justice may not only be done but must also be seen to be done.
   • (d) That the connections of the President and the two judges to the prevailing parties were not fully known by the Applicants at the time of the appeal hearing hence the absence of any objection to the bench.
   • (e) That it was only subsequent to the decision of the appellate division that the applicants undertook inquiries and confirmed the connections between the President, the two judges and the prevailing parties.
   • (f) That it is in the interests of justice that the decision be set aside.
   • (g) That the failure by the president and the two judges to recuse themselves voluntarily has undermined the integrity of the court and the confidence of the public in the administration of justice.

Allegation of Bias against the President

4. First allegation of bias leveled against the President is channelled through the person named Komisi whom the applicants originally believed was the President’s uncle but subsequently conceded as a consequence of affidavit filed by the President was the President’s grandmother’s first cousin.
5. Komisi was adopted by Tatupu a woman from Salailua village where Komisi was conferred the title Savaiinaea. Komisi also held the title Fu’e from the President’s family at Saoluafata.
6. Tatupu’s grand nephew Tuiatua Leuluaialii was the leader for the third appellants in the 2011 appeal hearing, whilst the other grand nephew Seigafo Ioane was the leader for the same party in the lower court hearing in 2005.
7. The second allegation of bias was that the court’s decision was influenced by an essay written by Komisi’s grandson Liua, a theological student, concerning the Methodist Church at Salailua. The said essay was not before the lower court and was not brought to the notice of the applicants in the appeal hearing.

President’s Response

8. Komisi’s children, to whom the president is related through the title Fu’e which Komisi once held, were not parties in the 2011 appeal hearing. Otherwise the president has no connection to any of the parties. In relation to the essay written by Komisi’s grandson the decision was not premised on that essay but on other materials before the court.

Allegations against Judge Taua’aletoa

9. Two allegations are leveled at Judge Taua’aletoa. The first is that he is related to one Pasui Leota Tapunuu (Tapunu’u) as heirs of the title Taua’aletoa of Faleapuna village. Tapunuu’s wife, Letaulau, the last named third respondent was a witness in the 2011 appeal hearing.
10. The second allegation is that the judge’s niece Palasia, is married to the grandson of one Maeata’anoa, a family member of Tapunuu referrd to in paragraph 9.

Response by Judge Taua’aletoa

11. Although it is conceded that the judge and Tapunu’u are both heirs of the matai title Taua’aletoa, the two are not related by blood and they are also members of the different branches of the title which follows they do not share the same cultural obligations and activities.
12. In relation to the marriage of his niece, the judge said in his affidavit that his niece is married to a family member: paragraph 8 (e).

“...who so far as I can understand is a relative of (Tapunu’u).

Allegation against Judge Vaaelua

13. Judge Va’aelua and Alofa Kofe (Kofe), the third named second respondent were married to members of the Tuiletufuga family of the village of Apia. Both their spouses died more than a decade ago.
14. But the applicants believe Judge Vaaelua should have recused himself due his connection to Kofe through marriage to the Tuiletufuga family.

Response by Judge Vaaelua

15. Judge Vaaelua concedes he was married to the daughter of Tuiletufuga, and Kofe was likewise married to the brother of Tuiletufuga. That was the only connection. And when Judge Vaaelua’s wife died in 2002, he did not maintain a relationship with his late wife’s family.

Procedure in the Land and Titles Court concerning appeals

16. Appeal process is set in motion by the appellants filing with the Registrar of the court an application for leave to appeal and setting out the grounds of appeal.
17. Copies of the application are then served by the Court employees on all the respondents who are also given notice of the date by which to file their responses.
18. Written replies by the respondents are served by the court employees on the appellants who are also given notice of the date to file their responses.
    
19. Upon receipt of final responses from the appellants or of the expiry of the date for the filing of the final responses, a hearing date is set and all parties are advised which means the respondents do not see the final responses filed by the appellants.
20. I have set out the procedure in this part of this judgment to highlight what the applicants in my view correctly emphasised as part of their complaint. In the final reply by the third respondents (as second appellants in the 2011 appeal hearing) they attached a copy of part of an essay which the applicants say was written by the grandson of Komisi referred to in paragraph 7. Pages 5, 6 and 7 of the essay are attached and stamped with the common seal of the Methodist of Samoa.
21. Three pages of the essay were not before the lower court, were denied from the applicants during the appeal hearing and did not feature or referred to during the examination of any party during the appeal hearing. But it featured significantly in paragraphs 5.1, 5.4 and 5.8 of the decision of Appeal Court and undoubtedly influenced the decision of the Court which referred to the 3 pages of the essay as an official church record.
22. There was nothing else of substance to reverse the decision of the lower court which was supported by the overwhelming weight of the evidence before it. The applicants were quite justified to be disappointed.
23. But it must be remembered that this is a judicial review proceedings and the issue here is one of bias. The powers of the Supreme Court to judicially review the decision of the Lands and Titles Court are confined to breaches of fundamental constitutional rights. See Toailoa v Lands and Titles Court unreported Supreme Court (11/5/04).The matters I have set out in paragraphs 20 – 23 above will be considered only in relation to the allegations of bias and will not be considered as a separate ground for judicial review.

The Evidence

24. Neither the President nor the two judges testified they all tendered affidavits. Since the accuracy and reliability of the contents of their affidavits were not tested under cross examination it naturally follows that on any matter in which the contents of the affidavits were in contention with the sworn testimony of any witness the court would prefer the tested sworn testimony. It must be said however any conflict between the testimonies and te affidavits was minimal and insignificant.

Submissions by the applicants

25. The thrust of the applicant’s complaint is the family connections of the appeal court judges to the second, third and fourth respondents resulting in the violation of their constitutional rights to a fair trial by an independent and impartial tribunal established by law. As the appeal court was influenced by actual or perceived bias through family connections, it accordingly lacked impartially.
26. Concerning the complaint against the President, counsel submitted that as Komisi and the President were matais of the President’s family there would have been familiarity of one to the other through family gatherings and likewise their children. Secondly it was also contended that Komisi’s adoptive family at Salailua and the President’s family would have met and exchanged customary obligations on occasions like funerals, church dedications and the like. As Komisi’s adoptive family included past presidents of the Methodist Church, the President ought to have familiarized himself with the other matais and leaders of Komisi’s adoptive family.
27. In respect of Judge Vaaelua it is submitted that although the judge’s former wife had died and had taken another wife, he was still obligated by custom through his children, to perform cultural obligations to the Tuiletufuga family. Likewise, Alofa is also obligated to do the same, so that the relationship Alofa and the judge has continued through their children. The issue as counsel put it is whether given judge Vaaelua’s connection to Alofa there was a real risk of Judge Vaaelua unfairly favouring Alofa’s side?
28. In relation to judge Taua’aletoa, counsel stated the follow submissions:

“The issue again, is whether there was a real danger of bias, given Taua’aletoa’s connection to Letaulau? The applicants submit there was a real danger and the decision itself and the reversal of the lower court’s well founded decision is proof of that. But even if there was no actual bias, the Applicants submit that the evidence is more than sufficient to show a real danger of perceived bias, given the nature of the connections ...”

29. Counsel submitted correctly that we live in a socio-cultural orientated society where formal links whether by blood, marriage or otherwise play a very significant role in determining or otherwise play a very significant role in determining our lines of obligations and responsibilities. No one is immune from this reality and it would include the judges of any court in Samoa who happen to be Samoans.

The law

30. Decided cases draw a distinction between actual bias and apparent, perceived, or imputed bias. Actual bias has been applied to situations where a

(i) A judge has been influenced by partiality or prejudice in reaching his decision, and

(ii) Where it has been demonstrated that a judge is actually prejudiced in favour of or against a party.

Findings of actual bias on the part of a judge are rare.

Apparent bias describes the situation where circumstances exist which give rise to a reasonable apprehension that the judge may have been, or may be biased.

See In Re Medicaments and Related Classes of Goods No 2 (CA) (2001) 1WLR 700

31. The test to be applied when determining whether a decision should be set aside on account of bias has, however, given rise to difficulty as reflected in judicial formulations that have appeared in conflict. The English House of Lords in R v Gough [1993] UKHL 1; (1993) 2 All ER 724 attempted to resolve the conflict. Before R v Gough the rule for disqualification was based on the perception of a reasonable man objectively deciding whether there was a likelihood of bias. R v Gough altered the test to whether in all the circumstances of the case, in the opinion of the reviewing court, there was a real danger or real likelihood of bias on the part of the judicial officer concerned. The reasons for the change in the test and whose perception was to be determinative were given by Lord Goff at page 670. 38:

“I think it necessary 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 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.”

32. Although R v Gough has not commanded universal approval in other jurisdictions including Australia, New Zealand, and the United Kingdom itself, it continues to be the leading authority in Sama on the doctrine of bias pursuant to the decision of the Samoa Court of Appeal in Stehlin v Police (1993) unreported 23/3/1993.

In any event the difference between the rule based on the perception of the reasonable man and the rule based on R v Gough appears to be a very fine one as recognised by the Privy Council in Man O’War Station Ltd v Auckland City Council (Judgment No.1) (2002) 3 NZLR 577 at para. 10. And in Auckland Casino Ltd v Casino Control Authority (1995) 1 NZLR 142 Cooke P delivering the judgment of the New Zealand Court of Appeal concluded that despite the different approaches in the two tests there was much in common in the approaches to disqualifying for bias. He said at page 149:

“The approach that has been adopted in this court in recent years, however, has been to emphasise that there is little if any practical differences between the tests.”

33. The point emphasised was that there is little point in ascertaining the perspective of a reasonable observer given that it was common ground that it was necessary to attribute knowledge of all material facts to that person. This meant there would be little difference between the view of a reasonable person and the court’s own view.

Discussion

34. The requirement that the tribunal should be independent and impartial is one that has long been recognised by the English Common law. It is also guaranteed under article 9 of our Constitution. A reviewing court will set aside a decision affected by bias.
35. It has long been recognised that where a judge has a pecuniary interest in the outcome of a case, he is automatically disqualified. It has its roots in the fundamental principle that a man may not be a judge in his own cause. Developed by the courts the principle has two similar but not identical implications:
    • (i) Applied literally, a judge who is a party or has a financial or proprietary interest in the outcome of a case of which he is presiding, is indeed sitting as a judge in his own cause. That is sufficient to cause his automatic disqualification.
    • (ii) The second application of the principle is where a judge is not a party and does not have a financial interest in the outcome, but in some other way his conduct or behavior may give rise to a suspicion that he is not impartial, for example because of his friendship with a party. See In Re Medicaments and Related Classes at Goods No 2 (CA) [2000] EWCA Civ 350; (2001) 1 WLR 700
36. There is nothing in the affidavits and the testimonies to suggest that any of the three judges was motivated by any bias. Neither was there a suggestion of a connection between any of them and the subject matter of the litigation. The focus of the complaint is that the familial connection of the judges to some of the members of the second, third and fourth respondents raised a real suspicion that they were not impartial by promoting the interests of the parties they were connected to. To put it another way the contention of the applicants is that the nature of the judge’s associations with the second, third and fourth respondents brought the case within the rule that judges should not sit when the circumstances viewed objectively, give rise to an apprehension that the judges might not be impartial. They had reasons to favour the respondents rather than the applicant.
37. It is not sufficient for the applicant to identify the familial connections of associations of the judges with the respondents. They must also articulate a logical connection between the associations and the feared deviation from the course of deciding the case on its merits. The point is explained by the High Court of Australia in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 345 at paragraph 8.

“The apprehension of bias principle admits of the possibility of human frailty its application is as diverse as human frailty. Its application requires two steps, first it requires the identification of what it is said might lead the judge to decide a case other than on its legal and factual merits. The second step is no less important. 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”.

38. It was also said in Ebner that in matter where a decision is challenged on allegation of apparent bias the test is one which requires no conclusion about what factors actually influenced the outcome. It also warned against any attempt to predict or inquire into the actual thought processes of the judge.
39. . It follows that bare assertions that judges have familial connections to a party will be of no assistance until the nature of 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. The laws approach to apparent bias was stated by Tipping J in the New Zealand Supreme Court decision in Saxmere Company Limited v Woolboard Disestablishment Co.Ltd [2009] NZSC 72; (2010) 1 NZLR 35 paragraph 42 required the party making the allegations to:

“....answer the question why the observer could reasonably think the judge might have been unconsciously biased. That question must be answered in an analytical way rather than as a matter of general impression or presumption. Whatever grounds for the allegation of apparent bias maybe the reconciliation of a judge’s duty to sit with the need sometimes to recuse depends on a careful and logical factual examination rather than one relying on instinctive reactions to fact superficially assessed”.

40. Surmise or conjecture is not enough. There must be a real likelihood of bias, or real possibility of bias, or as Lord Gorr prefer to put it, a real danger of bias. In Stehlin v Police Lord Cooke made the point that the doctrine of disqualification for bias has to be applied somewhat robustly in a jurisdiction the size of Samoa. The approach by the applicants alleging bias through distant impersonal associations and relationships would throw the management an operation of courts in Samoa into disarray and cause unnecessary delays through unwarranted challenges based on bias. Such an approach would not be conducive to the administration of justice.
41. The connections or associations of the three judges to the respondents are through marriage and matai titles, connections and associations which cannot be labeled as close, regular, or discomforting so as to trigger any feared deviation from being impartial. As Nelson J noted in Leleua v Land and Titles unreported Supreme Court of Samoa 4/12/09.

“We live in a country where everyone is related to each other in one way or another, through blood lines, through titles, through marriage. Extended families are by their very nature large not only on the paternal side but on the maternal side. But these are relatives and these 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 of family weddings”.

42. There was no real danger of bias

Result

(I) The notice of motion for judicial review to set aside or quash the decision of the Land & Titles appellate Court is refused.
(II) As the first respondents were unsuccessful in the Strike out motion, there will be no order as to costs.

JUSTICE VAAI