Esekia v Land and Titles Court [2017] WSSC 145 (9 November 2017)

SUPREME COURT OF SAMOA
Esekia v Land and Titles Court [2017] WSSC 145

Case name:	Esekia v Land and Titles Court
Citation:	[2017] WSSC 145
Decision date:	09 November 2017
Parties:	TAPUSALAIA LAUTOGIA TUUU ESEKIA, IULIA FAIGA, and others of Siumu (Applicants) AND THE LAND AND TITLES COURT continued pursuant to the Land and Titles Act 1981 (First Respondent) AND PRESIDENT OF THE LAND AND TITLES COURT appointed pursuant to the Land and Titles Act 1981 (Second Respondent) AND MANO NONU LAMI, LEIATAUALESA KATIFA, TUUU FALETOESE BRYCE and others of Siumu. (Third Respondents)
Hearing date(s):	-
File number(s):	MISC 157/16
Jurisdiction:	Civil
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	Article 4(2) of the Constitution empowers the Supreme Court “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” of the Constitution. There will accordingly issue the following orders: (i) Quashing the decision of the first respondent dated 26 March 2013 in LC 9996/P1-P11. (ii) Quashing the decision of the second respondent dated 20 May 2015 in LC 9996/LC 9996 P1-P11. (iii) The applicants original petition LC 9996 is to be re-heard by a differently constituted panel of the Land and Titles Court. (iv) In view of the serious delay, such rehearing is to be given priority by the respondents and is to take place expeditiously and subject to the convenience of the parties, within 30 days hereof. (v) Costs are awarded to the applicants as against the first and second respondents, appropriate memorandum to be filed within 7 days hereof.
Representation:	S Ponifasio for applicants S Ainuu and E Fruean for first and second respondents M Betham-Annandale for third respondents
Catchwords:	Conflict of interest – recusal – judicial review - leave to appeal – fundamental jurisdictional errors – fundamental decencies – breach of an applicants fair trial right – political rights – opportunity to be heard – in dependent and impartial tribunal – real danger of bias – want of jurisdiction – natural justice – bias – fair hearing – familial connection – voluntary disqualification –objective observer – mutual consent – serious delay
Words and phrases:
Legislation cited:
Cases cited:	Esekia v Appellate Division of Land and Titles Court [2016] WSSC 141 Lautogia v Appellate Division of Land and Titles Court [2016] WSCA 13 Silipa v President of the Land and Titles Court [2017] WSSC 32
	Malifa v President of the Land and Titles Court [2014] WSSC 170 Ulisese and others v The Land and Titles Court and others (unreported) 04 November 1998 Reupena v Senara [2017] WSCA 1 R v Gough [1993] UKHL 1; [1993] AC 646 EbnOffi Official Trustee in Bankruptcy (2000) 205 CLR 33 (HCA) at 345 Sa Core Co Ltd v Wo v Wool Board Disestablishment Co Ltd&[2009] NZSC 72;&#a href="http://www.paclii.olii.org/cgi-bin/LawCite?cit=%5b2010%5d%201%20NZLR%2035" title="View LawCite Record">[2010] 1 NZLR 35 at [3] Stehlin v Police [1993] WSCA 5 Samoa Party v Attorney General [2009] WSSC 23 Lormines v France a judgment dated 09mber 2006 concerning applicpplication no. 65411/01 at paragraph 59 Findlay v the United Kingdom, judgment of 25 February 1997 Brudnicka and Others v Poland, no. 54723/00, & 38, ECHR 2005-II Kleyn and others v Netherlands judgment dated 06 May 2003 R v Sussex Justices ex p McCarthy [1923] EWHC KB 1; [1924] 1 KB 256 Clarke v UK judgment dated 25 August 2005 in application no. 23695/02 Micallef v Malta 15 October 2009 application no. 17056/06 Leleua v Land and Titles Court [2009] WSSC 123 Siaso v Appellate of Land and Titles Court [2014] WSSC 26 Saxmere Company Limited v Woolboard Disestablishment Co.Ltd [2009] NZSC 72; (2010) 1 NZLR 35 E T Oldehaver and Company Ltd v Attorney General [1970 – 1979] WSCR 159 Smith v Kvaerner Cementation Foundations Ltd [2006] App LR 03/21 R v Bow Street Magistrate, ex parte Pinochet (No 2) [200] 1 AC 119 In Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 431 Millar v Dickson [2001] WLR 1615 Jones v DAS Legal Expenses Insurance Co [2003] EWCA Civ 1071 R v Bow Street Magistrate ex parte Pinochet (No 2) [1999] UKHL 1; (2000) 1 AC 119 Auckland Casino Ltd v Casino Control Authority [1995] 1 NZLR 142
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

TAPUSALAIA LAUTOGIA TUUU ESEKIA, IULIA FAIGA, and others of Siumu.

Applicants

AND:

THE LAND AND TITLES COURT continued pursuant to the Land and Titles Act 1981.
First Respondent

AND:

PRESIDENT OF THE LAND AND TITLES COURT appointed pursuant to the Land and Titles Act 1981.
Second Respondent

AND:

MANO NONU LAMI, LEIATAUALESA KATIFA, TUUU FALETOESE BRYCE and others of Siumu.
Third Respondents

Counsel:
S Ponifasio for applicants
S Ainuu and E Fruean for first and second respondents
M Betham-Annandale for third respondents

DECISION OF NELSON J

Background

1. The applicants and third respondents became embroiled in a dispute concerning the pule over certain customary lands at Siumu upon which had been situated a coconut oil business. The matter ended up in the Land and Titles Court and was set down for hearing on 15 December 2008 before a panel comprising Vice President Fuimaono Nonu of the Court, two other judges and an assessor.
2. As Vaai, J did in the previous Supreme Court proceedings in this matter (Motion to Strike Out - Esekia v Appellate Division of Land and Titles Court [2016] WSSC 141) I take judicial notice of the following facts:
   • (i) Each judge of the Land and Titles Court is given his or her roster sheet every Friday (or Thursday if Friday is a holiday) for the forthcoming week.
   • (ii) The roster sheet allocates the composition of each bench and the cases for their determination.
   • (iii) Copies of the petitions, history of each and other documents relevant to each case are also included.
3. Before proceedings commenced on 15 December 2008, Vice President Fuimaono of his own accord and not in response to the urgings of any party, recused himself from sitting in the following manner:

“Na fai le malologa ona sei tau silasila le faamasinoga ona o talosaga o loo tuuina mai e faaauau le mataupu, peitai e iai ona faaletonu o loo iai, ina nei faaauau atu, uma tuu atu se faaiuga a le faamasinoga ae tou silafia mulimuli ane o au o Fuimaono lea e tauavea, o le tamaitai o lou aiga lea e tausi alii ia Tofaeono Tuasivi. O le isi itu, o lo o iai foi le itu a Faatonu, o lea ou te vaai i nisi o ona uso ma latou fanau o loo matou nonofo faatasi i Leufisa, e faigata foi lena itu, e le tatau ona ou faaauauina lea mataupu. Pau le fesili e tuuina atu, tou te avanoa i le aso 11 o Fepuari 2009 ae o le a sei saili se isi Sui Peresetene.”

4. This amounted to a clear acknowledgement by the Vice President of a conflict of interest because a lady of his family was the wife of Tofaeono Tuasivi Mano Togamau the leader of the first respondent party. It is common ground she is the daughter of the Vice Presidents first cousin. A further conflict disclosed by the Vice President was that he resided at Leufisa together with the brothers and children of ‘Faatonu’ another party to the litigation. The matter was accordingly adjourned to 11 February 2009 to be heard by a panel chaired by a different Vice President.
5. For various reasons the proceedings did not come to hearing until 08 April 2013. In the intervening period the identity of the parties did not change. Likewise there is nothing before me to indicate that the circumstances that led to the Vice President disqualifying himself had materially or in any way altered.
6. On 08 April 2013 the matter again came before a panel chaired by Vice President Fuimaono. On that day the learned Vice President began by adjourning hearing of the matter for one week to accommodate an adjournment application by one of the parties. When reminded by the leader of the applicants of his earlier recusal there ensued the following discussion:

“Tapusalaia Lautogia – Lau afioga matou te teena lau afioga ona o le maotu faamasinoga i le 2009 na e teena le matou faamasinoga e te le faataunuuina ona o lou faia pei ona taua. Pe tolopo pe a, a ia faia le mea amiotonu.

Fuimaono – ia o le a tolopo lau tou mataupu i se aso sei avanoa se Sui Peresetene.

Tofaeono Mano Togamau – Talu ai o lenei mataupu ua autausaga ua uma ona sue le pule ao lenei lava e lalaga mai tulaga ia.

Fuimaono – ona o lea e teena mai au e le itu lea a Tapusalaia Lautogia pau le faaiuga e fai o le tou mataupu i se aso sei maua se Sui Peresetene ona toe faaauau lea o le tou mataupu, o le mea sao lava o le teine o le matou aiga e nonofo ma Mano o le afafine o Toelupe, ae le o sou tuafafine, o le mea lena ia tou malamalama iai, ma e leai ni faiga aiga e faia i le faamasinoga ua uma ona faia le matou tautoga I le Atua, ae ou te talia lou finagalo Tapusalaia e le faia nao au se faaiuga ae e alofa atu ona ua leva tele le tou mataupu.

Tapusalaia Lautogia – ia ua uma se manatu ua ou malie o le a e faia le matou mataupu, faafetai lava, ae ia faia i le amiotonu.

Fuimaono – ua lelei o le a tolopo lau tou mataupu i le aso 15/4/2013.”

7. This indicates the Vice Presidents first instinct was to abide by his recusal and adjourn the proceedings not for one week, but “i se aso sei avanoa se Sui Peresetene” (until a Vice President is available) and “i se aso sei maua se Sui Peresetene” (until another Vice President is found). It was made clear to the parties that only then would their matter proceed. Furthermore that the reason for the adjournment was the objection by the applicants.
8. The Vice President then went on to try and dilute the relationship which formed the basis of his earlier recusal by saying about the wife of the first respondent leader “e le o sou tuafafine” (she is not my sister); but ignoring completely the second ground of his recusal. Followed by a reassurance to the parties that their case would be dealt with impartially and not solely by him and would be decided in accordance with the oaths taken by the adjudicating panel. While at the same time expressing sympathy for the lengthy delay in having the case heard, a matter of obvious concern to the parties.
9. The applicants were presented with a Hobsons choice. Persisting in their objection would result in proceedings already seriously delayed being adjourned indefinitely. Affidavit evidence before the court reveals the applicants leader was critically ill and on dialysis. It was not known how much longer he had to live. In this context the applicants withdrew their objection and allowed the matter to proceed before Vice President Fuimaono and his panel.
10. The rest is history. The matter was heard on 15 April 2013, the objecting parties lost and they are the present applicants. Their Amended Motion for Judicial Review seeks:
    • (i) a declaration that the decision of Vice President Fuimaono and his panel in LC 9996/P1-P11 dated 26 April 2013 is invalid;
    • (ii) an order quashing the said decision;
    • (iii) an order quashing and/or setting aside the Land and Titles Court of Appeal ruling LC 9996/LC 9996 P1-P11 dated 20 May 2015 refusing leave to appeal and upholding the decision;
    • (iv) a rehearing of the applicants original petition LC 9996; and
    • (v) costs.

On the grounds that the first and second respondents did not act impartially and have breached the applicants constitutional right to a fair trial guaranteed by article 9.

11. At the hearing of this Motion, all parties agreed the proper second respondent was the President of the Land and Titles Court as it was he who denied the applicants leave to appeal the first respondents decision to the Appellate Division of the Land and Titles Court. The identity of the first named third respondent was also clarified and corrected.
12. It is also agreed amongst the parties that if the first respondent is found to be in constitutional breach, the decision of the second respondent refusing leave to appeal is fatally tainted by such breach. As observed by the Court of Appeal in Lautogia v Appellate Division of Land and Titles Court [2016] WSCA 13:

“Where tribunals like the LTC and the ADLTC are linked by legislation, it will be expressed or implied in the legislation that they share a common purpose. The function of the first tribunal may be to hear the case, and that of the appellate tribunal to correct any errors committed, but they have the shared purpose and responsibility of achieving justice for the parties. In that sense they are acting in tandem. The responsibility is indivisible. The appellate tribunal cannot abdicate from its own duty to contribute to the shared responsibility of achieving justice for the parties.

In our view that shared responsibility extends to duties stemming from the Constitution. First instance tribunals, and tribunals having the power to determine appeals from them, have the joint responsibility of ensuring that effect is given to art 9 of the Constitution. We see that as inherent in art 9. The Constitution requires appellate courts to intervene when faced with a first instance decision which is vitiated by a breach of art 9 of the Constitution. An appellate tribunal’s failure to grant a remedy in that situation is itself a breach of the Constitution.”

Issues

13. The essential challenge is therefore to the decision of the first respondent. The basis of the challenge is ‘apparent’ as opposed to ‘actual’ bias on the part of the presiding Vice President. Allegations of actual bias are in fact raised in the applicants supporting affidavits but applicants counsel did not present their argument that way. She argued on the basis of apparent bias due to Vice President Fuimaono presiding despite his earlier disqualification and admitted connections to parties who were ultimately successful. From this perspective the applicants say their constitutional right to hearing “by an independent and impartial tribunal” has been breached.
14. Although expressed as a consequence of violation of their right to trial by an independent and impartial tribunal, it seems to me the applicants assertion of breach of their constitutional right to a “fair hearing” under article 9 is in the circumstances of this case a second and separate issue. A proceeding before a tribunal that is not independent or impartial clearly breaches the “fair hearing” guarantee but the scope of the guarantee is broader. Thus for example denial of the right to be heard has been considered a breach of the fair trial right: Silipa v President of the Land and Titles Court [2017] WSSC 32. See also paragraph 47 of the courts judgment in Malifa v President of the Land and Titles Court [2014] WSSC 170:

“The Chief Justice has opined that such “an exceptional case” would be where the Land and Titles Court made a decision in respect of land that was not customary land or pronounced judgment upon a title that was not a matai title. It is easy to see why such fundamental jurisdictional errors would be reviewable. Similarly a good case for review exists where “fundamental decencies” such as the opportunity to be heard has been breached by the court. Such cases would probably also be reviewable on a Constitutional basis as being in breach of an applicants fair trial right.”

15. In discussing the concept of “fair hearing,” Justice Young in his landmark decision in Ulisese and others v The Land and Titles Court and others (unreported) 04 November 1998 said:

“At least it is likely to encompass the typical judicial review grounds of want of jurisdiction, natural justice, bias, and no doubt others. Here all parties are agreed that the three grounds previously mentioned are clearly within “fair” hearing in civil cases.”

16. But article 9(1) protects only “civil” and not “political” rights – Samoa Party v Attorney General [2009] WSSC 23.
17. The right to a hearing by “an independent and impartial tribunal” is in my view separate and divisible from the all encompassing right to a “fair hearing”. I approach the matter on this basis.

Bias - relevant law

18. The applicable principles concerning apparent bias were recently restated by the Court of Appeal in Reupena v Senara [2017] WSCA 1:

“The courts in the United Kingdom, Australia and New Zealand have described what amounts to apparent bias in slightly difference language. The United Kingdom approach is to ask whether there is a “real danger” of bias: R v Gough [1993] UKHL 1; [1993] AC 646. The Australnd Nand New Zealand Courts have united in saying that, subject to considerations of waiver or necessity – neither of which is relevant in this case – a judge is disqualified &#8220 fair-minded lay observer mver might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”; the question is one of possibility (“real and not remote”), not probability: Ebner v OffiTrustee itee in Bankruptcy (2000) 205 CLR 33 (HCA) at 345 and Saxme Ltd v Wool Boar Boardstablishment Co Ltd [2NZSC 72; [2009] NZSC 72; [2010] 1 NZLR 35 at [3]. It has said that that the respective tests of apparent bias are essentially the same: Saxmere

Importantly the court must examine the matter in two steps:

(a) first, the identification of wt is said might lead a judge to decide a case other than on its legal and factual merits; ats; and

(b) secondly, 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.

Cooke P remarked in Stehlin v Police [1993] WSCA 5 that the doctrine of disqualification for alleged bias has to be applied somewhat tly iurisdiction the sthe size of Samoa.”

19. It is worth noting thng that in interpreting article 6(1) of the European Convention on Human Rights which is word for word identical to article 9(1) of the Samoa Constitution, the European Court of Human Rights (“ECHR”) said in Lormines v France a judgment dated 09 November 2006 concerning application no. 65411/01 at paragraph 59:

“In order to establish whether a tribunal can be considered “independent” within the meaning of Article 6 & 1, regard must be had, inter alia, to .....the question whether the body presents an appearance of independence (see Findlay v the United Kingdom, judgment of 25 February 1997 and Brudnicka and Others v Poland, no. 54723/00, & 38, ECHR 2005-II).”

And of impartiality it said in paragraph 60:

“There are two aspects to the requirement of impartiality. First, the tribunal must be subjectively free of personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect. Under the objective test, it must be determined whether, quite apart from the judges’ personal conduct, there are ascertainable facts which may raise doubts as to their impartiality. In this respect even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public and above all in the parties to proceedings (see Kleyn and others v Netherlands judgment dated 06 May 2003).”

20. The “objective observer” test has found favour with the ECHR on the basis of the oft-quoted maxim ‘justice must not only be done, it must be manifestly and undoubtedly be seen to be done’: R v Sussex Justices ex p McCarthy [1923] EWHC KB 1; [1924] 1 KB 256 per Lord Hewart, CJ. It has been applied by the European court in a number of cases: Clarke v UK judgment dated 25 August 2005 in application no. 23695/02; Micallef v Malta 15 October 2009 application no. 17056/06; and others.
21. In cases involving personal relationships to judges, reference should also be had to Leleua v Land and Titles Court [2009] WSSC 123 where the court held:

“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.......... There are connections people are not even aware of until funerals or family weddings.

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.”

22. As well what my brother Vaai, J said in Siaso v Appellate of Land and Titles Court [2014] WSSC 26:

“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.

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.

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 Li v ed v Woolboard Disestablishment Co.Ltd [2009] NZSC 72; (2010) 1 NZLR 35 paragraph 42 required the party making the allegations t>

“....answer the question why the observer could reasonably think the judge mightmight have been unconsciously biased. Thattion must be answered in an analytical way rather than as a as a matter of general impression or presumption. Whatever grounds for the allegation of apparent bias may be, 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”.”

Bias - analysis

23. This represents the state of the law as I understand it in this country. The present case however significantly differs from those cited above. Here the Vice President considered in 2008 that the relationships in question between him and the leader of the first respondent and between him and the brothers and children of Faatonu warranted his voluntary disqualification. A clear admission of bias and lack of independence on his part. This state of affairs continued to exist in 2013 and when reminded of his recusal, his initial reaction was to continue with recusal.
24. Why he then carried on in the manner he did is open to differing interpretations. But having of his own volition disqualified himself in 2008, it was no longer open, absent a material change in circumstances, to “requalify” himself as able to preside. His conflicts remained. Reversing his earlier decision was an error and would give rise in the mind of the informed fair-minded lay observer or in terms of the ECHR jurisprudence an ‘objective observer’, to a reasonable apprehension that in 2013 the Vice President was not bringing an impartial or independent mind to his task. This much is clear from his own admissions statements and conduct.
25. I agree with Vaai, J:

“When the Vice President was on Friday 5^th April 2013 given hiedule ofle of court hearings for the week commencing Monday the 8^th April 2013, he shhave made made arrangements, as was the practice, (emphasis is mine) to swap with another vice presidentident. He obviously did not. When confronted by the applicant about his disqualification in 2008 his blunt answer was a further adjournment. After a delay of more than 4 years the litigants were now confronted with a further delay. He told the litigants:

“.... since I am objected to by Tapusalaia (the applicant) the only ruling on your matter is to adjourn until another vice president is available.”

He then, as counsel for the applicant correctly submitted, watered-down his familiar connection with the wife of the leader of one party. He ignored and made no reference to his second ground for disqualification.

The message was blunt and clear; there will be another lengthy adjournment if Vice President Fuimaono will not preside.”

26. What was not independent and impartial in 2008 remained not independent and impartial in 2013. The Vice President should have followed his initial instincts and stayed recused. His failure to do so has resulted in a breach of the applicants article 9 guarantee to a hearing by an “independent and impartial tribunal.”

Fair trial – relevant law

27. Article 9 relevantly provides:

“9. Right to a fair trial – (1) In determination of his or her civil rights and obligations .......every person is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established under the law.”

28. As observed earlier, the fair hearing guarantee exists independently of the other civil law requirements of article 9(1). In Ulisese and others v The Land and Titles Court and others (supra), Justice Young said:

“Here the allegations by the plaintiffs about the conduct of the first defendants are prima facie allegations of a lack of “fair” hearing as referred to in Article 9. 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 judicial review grounds of want of jurisdiction, natural justice, bias, and no doubt others.”

29. Ulisese established for the first time the principle that decisions of the Land and Titles Court could be reviewed for alleged breach of any of the fundamental rights conferred on every citizen by Part II of the Constitution. Many of those core rights are enshrined in article 9 and in relation to the civil law, in article 9(1). Youngs decision has been followed and applied in numerous subsequent cases including at appellate level.
30. The ECHR also has established jurisprudence concerning interpretation of what is “fair” under their article 6(1). But it is unnecessary for present purposes to canvass those authorities.

Fair trial - analysis

31. The regrettable history of the Land and Titles Court first instance proceedings have already been traversed. The question arising is whether in the circumstances the applicants have been given a “fair hearing” in accordance with article 9(1) of the Constitution? I am of the view they have not. Having voluntarily recused himself in 2008, absent a change of circumstances, the learned Vice President was duty bound to continue in that vein. He was aware the Friday before the proceedings it was scheduled for hearing before his panel on the Monday, there was ample time to swap cases with one of the other four Vice Presidents of the Court. His attempt to downplay his connection to the matter, which only addressed one aspect of his disqualification, was evidence of a desire to chair the inquiry. Whether this was genuine or nefarious in purpose I prefer not to speculate. But his further and continued involvement was patently unfair to the objecting applicants. In choosing to do so he has breached the applicants constitutional right to a fair hearing.
32. Significant reliance has been placed by the respondents on the argument that the applicants on 08 April 2013 “waived” their right to object by ultimately agreeing to the Vice President presiding. It is necessary to give this aspect some consideration.

Waiver – relevant law

33. In E T Oldehaver and Company Ltd v Attorney General [1970 – 1979] WSCR 159, the Court of Appeal in dealing with waiver of the requirement for a lessee to give notice of renewal of a lease prior to its expiry stated:

“But for acts of waiver to be effective against the Lessor they must be both intentional and given with full knowledge. After careful consideration of the submissions and the evidence we find no reason to disagree with the finding expressed by the learned Chief Justice who said at page 4 of his judgment:-

I have considered the possibility that the defendant could be said to have waived the notice requirement by its conduct, but again, Halsbury’s Laws of England (3^rd ed.) Volume 23 page 310 observes that such waiver must be intentional and with full knowledge. I cannot find on the evidence that there was an intentional waiver with full knowledge on the defendant’s part. There was negligence on the defendants part in failing to clarify the renewal position promptly but nothing in the nature of a deliberate waiver.”

34. In Smith v Kvaerner Cementation Foundations Ltd [2006] App LR 03/21, the English Court of Appeal extensively discussed the concept of waiver and its prerequisites:

“The basic principle is that waiver requires that the person who is said to have waived ‘has acted freely and in full knowledge of the facts’ – per Lord Browne-Wilkinson in R v Bow Street Magistrate, ex parte Pinochet (No 2) [200] 1 AC 119 at 137. In Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 431 at p.475 this court commented: “a party with an irresistible right to object to a judge hearing or continuing to hear a case may.... waive his right to object. It is however clear that any waiver must be clear and unequivocal, and made with full knowledge of all the facts relevant to the decision whether to waive or not.”

In Millar v Dickson [2001] WLR 1615 at 1629 Lord Bingham of Cornhill observed: “In most litigious situations the expression “waiver” is used to describe voluntary, informed and unequivocal election by a party not to claim a right or raise an objection which it is open to that party to claim or raise. In the context of entitlement to a fair hearing by an independent and impartial tribunal, such is in my opinion the meaning to be given to the expression.”

Finally we should refer to an unreported decision of this court which is particularly relevant having regard to its facts. Jones v DAS Legal Expenses Insurance Co [2003] EWCA Civ 1071 involved a claim by a litigant in person before an Employment Tribunal. At the start of the hearing the chair informed the claimant that her husband was a barrister and was occasionally instructed by the respondents. She stated that she did not consider it a problem and the claimant then said he had no objection. The Court of Appeal did not consider that in these circumstances the claimant could be said to have acted freely in waiving his right to object. They were left with a nagging doubt that he had been ‘hustled into’ his decision. The court went on to find, however, that he had subsequently waived his right to object to the chair. The court provided the following ‘guidance’ for a judge who becomes aware of circumstances which might give rise to an appearance of bias:

(i) If there is any real as opposed to fanciful chance of objection being taken by that fair-minded spectator, the first step is to ascertain whether or not another judge is available to hear the matter. It is obviously better to transfer the matter than risk a complaint of bias. The judge should make every effort in the time available to clarify what his interest is which gives rise to this conflict so that the full facts can be placed before the parties.
(ii) Some time should be taken to prepare whatever explanation is to be given to the parties and if one is really troubled perhaps even to make a note of what one will say.
(iii) Because thoughts that the court may been biased can become festering sores for the disappointment litigants, it is vital that the judges explanation be mechanically recorded or carefully noted where that facility is not available. That will avoid that kind of controversy about what was or was not said which has bedeviled this case.
(iv) A full explanation must be given to the parties. That explanation should detail exactly what matters are within the judges knowledge which give rise to a possible conflict of interest. The judge must be punctilious in setting out all material matters known to him. Secondly, an explanation should be given as to why the problem had only arisen so late in the day. The parties deserve also to be told whether it would be possible to move the case to another judge that day.
(v) The options open to the parties should be explained in detail. Those options are, or course to consent to the judge hearing the mater, the consequence being that the parties will thereafter be likely to be held to have lost their right to object. The other option is to apply to the judge to rescue himself. The parties should be told it is their right to object, that the court will not take it amiss if the right is exercised and that the judge will decide having heard the submissions. They should be told what will happen next. If the court decides the case can proceed, it will proceed. If on the other hand the judge decides he will have to stand down, the parties should be told in advance of the likely dates on which the matter may be re-listed.
(vi) The parties should always be told that time will be afforded to reflect before electing. That should be made clear even where both parties are represented. If there is a litigant in person the better practice may be to rise for five minutes. The litigant in person can be directed to the Citizens Advice Bureau if that service is available and if he wishes to avail of it. If the litigant feels he needs more help, he can be directed to the chief clerk and/or the listing officer. Since this is a problem created by the court, the court has to do its best to assist in resolving it.

This is useful guidance but, as the court made plain, it should not be treated as a set of rules which must be complied with if a waiver is to be valid. The vital requirements are that the party waiving should be aware of all the material facts, of the consequences of the choice open to him, and given a fair opportunity to reach an un-pressured decision.”

35. Vaai, J in his decision on the Motion to Strike [2016] WSSC 141 at paragraphs 26 and 27 relied on these principles:

“A waiver must be clear and unequivocal, and made with full knowledge of all the facts relevant to the decision whether to waive or not: Locabail (UK) Ltd v Bayfield Properties Ltd (2000) QB 431 at 475. And in R v Bow Street Magistrate ex parte Pinochet (No 2) [1999] UKHL 1; (2000) 1 AC 119 Lord Browne-Wilkinson at 137 said the basic principle is that the person who is said to have waived has acted freely in full knowledge of the facts.

The applicants so called waiver was not voluntary, not informed and not unequivocal. It was not a waiver.”

Waiver – analysis

36. Certain matters emerge from the court transcript of 08 April 2013:
    • (i) The precise nature of the Vice Presidents relationship with the wife of the first respondent leader and with the leader himself was not elaborated. The Vice President merely stated “she was not his sister.” The extent of his interaction and dealings if any with her either on a day to day or extended family basis was not disclosed. Ditto his level of familiarity with her husband.
    • (ii) The difficulty in assigning another of the courts four (4) Vice Presidents to the case was not addressed. Nor was there any comment on how long a delay this would entail. The learned Vice President referred to “a delay” but failed to indicate whether a week or a month or longer was envisaged.
    • (iii) No time was given to the applicants to consider their position and whether or not to agree to a waiver of their objection. Or to consider the likely implications. They were put on the spot and an immediate response was expected by the Vice President. A trained judicial officer versus a layman, hardly an equitable contest and certainly not in an environment for reaching an “unpressured decision.”
    • (iv) Considering the relevant excerpt as a whole one cannot help but form the impression that in the language of the Court of Appeal in Jones, the applicant was “hustled into” agreeing that the Vice President could preside. The term “bullied” would be equally applicable. The reticence on the part of the leader of the applicants can be seen from his twice repeating the phrase that in any event “ia faia le amiotonu.”
37. The applicants waiver was not made with the benefit of all the facts. It was given in a situation of duress and consequent upon reassurances by Vice President Fuimaono that in essence, all would be well. It was not in my assessment voluntarily or freely given. It does not meet the tests espoused by law, it certainly breaches several of the guideline requirements of Jones.
38. The first and second respondents also referred to the New Zealand Court of Appeal decision in Auckland Casino Ltd v Casino Control Authority [1995] 1 NZLR 142 where it was said:

“There is much authority that a party who in the course of a hearing has become aware of facts which may constitute disqualification for bias or otherwise will be held to have waived the objection, or refused discretionary relief, if he allows the hearing to continue without protest. This is sometimes stigmatized as keeping an objection up a party’s sleeve, but the description may be harsh if a party through no fault of its own has been confronted with an agonizing choice.”

39. There is no conflict between this and the principles earlier referred. In the instant case the applicants reminded the Vice President of their objection and his recusal and the reasons therefore. These facts were apparent from the outset. It was then that the Vice President said the matter would be adjourned for a replacement Vice President.
40. The first and second respondents argument seems to be that because the proceedings were in fact adjourned for one week to 15 April 2013 and the hearing occupied some 18 days, there was ample time for the applicants to fully consider their position and make further objection. Instead they chose “to keep it up their sleeve” and only raised bias because they were unsuccessful.
41. This ignores two essential facts: firstly we are dealing here with lay matais and lay parties not professional lawyers and litigants of the kind that existed in Auckland Casino. In respect of whom there existed “overwhelming evidence of knowledge by lawyers, directors, advisors and supporters at a variety of times prior to the conclusion of the hearing.” Secondly the court itself recognized the harshness of a party through no fault of its own being confronted “with an agonizing choice” and of how –

“a failure by a legal representative at the trial to note objections and to ask that they be recorded, although often a significant handicap, may sometimes be explained in the forensic setting. It will be rare that it is to a party’s advantage for its representative to challenge the fairness of a Judge. Or to impugn the Judge’s neutrality. Still more rare will it be to suggest bias, or the appearance of bias, on the part of that Judge. To the end of the trial, the parties and their representatives depend so heavily upon the opinion of the Judge that there will be natural inhibitions, psychological impediments and forensic constraints which restrain challenges of this kind where they are not absolutely necessary.”

It is unrealistic to impugn to the unqualified lay litigant in the Land and Titles Court the knowledge standard and ability of the trained professional lawyer or indeed, of a trained and experienced judicial officer.

42. In addition, I am not certain that even if there was waiver that a person can as a matter of law waive his constitutional right to a “fair trial” and trial by “an independent and impartial tribunal.” I see difficulties in principle with such an approach and a jurisprudence that would allow judicial officers to preside over trials involving close relatives on the basis of mutual consent. The caution of Lord Hewart leaps to mind. However this was not argued by or raised with counsel and is a matter best left to proceedings where the question directly arises.

Conclusions and orders

43. The applicants right to a “fair hearing” and his right to trial “by an independent and impartial tribunal” under article 9(1) of the Constitution have been blatantly and egregiously breached by Vice President Fuimaono presiding in their matter. I take into account the pre-eminence of the position and the leading role a Vice President plays in such litigation. There was no valid or effectual waiver of the applicants rights and this argument does not save the first respondents decision. The effect of such constitutional breaches flow through and adversely affect the second respondents decision.
44. Article 4(2) of the Constitution empowers the Supreme Court “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” of the Constitution. There will accordingly issue the following orders:
    • (vi) Quashing the decision of the first respondent dated 26 March 2013 in LC 9996/P1-P11.
    • (vii) Quashing the decision of the second respondent dated 20 May 2015 in LC 9996/LC 9996 P1-P11.
    • (viii) The applicants original petition LC 9996 is to be re-heard by a differently constituted panel of the Land and Titles Court.
    • (ix) In view of the serious delay, such rehearing is to be given priority by the respondents and is to take place expeditiously and subject to the convenience of the parties, within 30 days hereof.
    • (x) Costs are awarded to the applicants as against the first and second respondents, appropriate memorandum to be filed within 7 days hereof.

Postscript to judgment

45. Following hearing of submissions, first and second respondents counsel took the unprecedented step of filing by letter an affidavit from Vice President Fuimaono dated 03 October 2017. The other parties were served and they wisely chose not to respond to an obvious effort to introduce new material to influence the outcome of these proceedings post hearing of the applications.
46. This is not a practice to be condoned. If considered relevant such evidence should have been made available prior to hearing in the normal manner to allow the other parties the opportunity to respond. In particular to decide if cross examination of the various deponents including the Vice President would be required and/or whether further affidavits were necessary.
47. I have accordingly not taken the affidavit into account.
    

JUSTICE NELSON