Akeimo v Appellate Division of the Land and Titles Court [2017] WSSC 36 (10 May 2017)

SUPREME COURT OF SAMOA
Akeimo v Appellate Division of the Land and Titles Court [2017] WSSC 36

Case name:	Akeimo v Appellate Division of the Land and Titles Court
Citation:	[2017] WSSC 36
Decision date:	10 May 2017
Parties:	SEVAO AKEIMO and FEEPO LEATIOGIE SEFO matais of Faleula v APPELLATE DIVISION OF THE LAND AND TITLES COURT, constituted under section 77 of the Land and Titles Act 1981 and TUALA NIA MAUALAIVAO, SEILALA FILIPO, SOLA MALALA, VEA SEFO LAUPA, THERESA LAUPA KOSE, TUALA OLI AH HIM, LAUPA PETELO,
Hearing date(s):
File number(s):	MISC 252/14
Jurisdiction:	Civil
Place of delivery:
Judge(s):	CHIEF JUSTICE SAPOLU
On appeal from:
Order:	Appellate Division of the Land and Title’s Court
Representation:	F K Ainuu for applicants S Ainuu for first respondent M V Peteru for second respondents
Catchwords:	appeal – appeal hearing – appellate division of the Land and Titles Court– authority to make appointments to the title Laupa – Land and Titles Court at First Instance – leave to appeal hearing – motion for judicial review – President of the Land and Titles Court – real danger of bias test– title Laupa of Faleula – strike out motion
Words and phrases:
Legislation cited:	Lauvai v Land and Titles Court [2010] WSSC 185 Leleua v Land and Titles Court [2009] WSSC 123; Peniamina v Land and Titles Court [2004] WSSC ... Police v (R v Gough [1993] 3 A11 ER 724), Stehlin v Police [1993] WSCA 5
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER OF:
The Land and Titles Act 1981.

BETWEEN:
SEVAO AKEIMO and FEEPO LEATIOGIE SEFO matais of Faleula.

Applicants

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

First respondent

A N D:
TUALA NIA MAUALAIVAO, SEILALA FILIPO, SOLA MALALA, VEA SEFO LAUPA, THERESA LAUPA KOSE, TUALA OLI AH HIM, LAUPA PETELO,

Second respondents

Counsel: F K Ainuu for applicants
S Ainuu for first respondent
M V Peteru for second respondents

Judgment: 25 August 2014

Reasons for Judgment: 10 May 2017

REASONS FOR JUDGMENT OF SAPOLU CJ

Introduction

1. After hearing these proceedings on 25 August 2014, I struck out the applicants motion for judicial review and told counsel that my written judgment with reasons will be delivered to them in due course. I also invited counsel to file submissions as to costs in 14 days. Regrettably, due to oversight and pressure of work, that written judgment with reasons was overlooked until I was recently reminded by counsel from the Attorney General’s Office. This is the said judgment.

Nature of proceedings

2. These proceedings are concerned with a motion for judicial review by the applicants in relation to a decision of the appellate division of the Land and Titles Court (LTC) and the motions by the first respondent and the second respondents to strike out the motion for judicial review.

History of proceedings

(a) 1986 Land and Titles Court (LTC) proceedings

3. The 1986 LTC proceedings related to the title Laupa of the village of Faleula. The LTC at First Instance by its decision of 27 June 1986 confirmed the appointments of Petelo, Kose, and Tavaga to the title Laupa of Faleula. Laupa Kose as it will appear later in this judgment was the brother of Tuala Nia Maualaivao the leader of the second respondents in the present proceedings. The decision of 27 June 1986 was the subject of an appeal but leave to appeal was refused on 16 February 1988 by the then President of the LTC.

(b) 2007 Land and Titles (LTC) proceedings

4. The 2007 proceedings before the LTC at First Instance related to the title Laupa of Faleula and the appointments which had been made to that title. The LTC on 8 March 2007 held:

“(1) The authority to choose and appoint a holder or holders of the title Laupa of Faleula is vested in the heirs of the title Laupa Leoo represented by the claimant party (Itu Tagi) of today’s proceedings.

“(2) If any differences arise between the heirs of the title Laupa when making their choices, then Malietoa must be informed for his opinion because he holds the pule faamalumalu (ceremonial authority).

“(3) The title Laupa is the Sa’o of his family. The title Feepo is prohibited from further interference in matters relating to the title Laupa of Faleula.

“(4) The bestowal of the title Laupa on Gia, Sione, Sevao, Paul and Totuna is confirmed as Laupa Kose consented to it.

(c) 2012 Land and Titles Court (LTC) proceedings

5. The 2012 proceedings were concerned with the leave to appeal proceedings before the President of the LTC in relation to the decision of 8 March 2007. Only the second respondents filed an appeal which was directed at para (4) of the said decision of 8 March 2007 on the ground that Laupa Kose who was the Sa’o of their family did not consent to the bestowal of the title Laupa on Gia, Sione, Sevao, Paul and Totuna. The present applicants did not file an appeal against the 2007 decision or a response to the appeal by the second respondents. In practice, if a party wants to oppose an appeal then a response is filed against the appeal. But that was never done by the applicants in this case.
6. In written submissions dated 22 August 201, it is pointed out by counsel for the applicants that the second respondents filed their leave to appeal application in time and it was heard on 5 December 2012. It is also pointed out by counsel for the applicants in his submissions that the President of the LTC was notified about the plea by the applicants to file their appeal and response to the appeal by the second respondents but the President still proceeded to grant leave to appeal to the second respondents. In the individual affidavit of the applicant Feepo Leatiogie Sifo, it is alleged that the applicants were not present at the leave to appeal hearing. If that is right, then it is not clear to me how the applicants who were not present at the leave to appeal hearing notified the President of the LTC about their plea for leave to file an appeal and a response to the second respondents appeal but the President still granted leave to the second respondents.
7. Anyhow, the appeal procedures in the LTC are as follows. Under s.76 of the Land and Titles Act 1981, any party to proceedings before the LTC at First Instance may appeal a decision of the Court. The appeal period as provided under s.81 is 21 days from the date of delivery of the Court’s decision but that period may be extended by the President to 2 months. When the appeal is filed, a period of 21 days is allowed to the respondent party to file a response to the appeal. Usually such a response is filed if the respondent party wishes to oppose the appeal. The appellant party is then allowed 14 or 21 days to file a response to the response by the respondents party. In terms of that procedure, the appeal by the second respondents was timely filed. That must have been by 8 May 2007 at the latest assuming that the second respondents had been granted a 2 months extension to file their appeal because the decision which was the subject of the appeal was delivered on 8 March 2007. So if the applicants had wanted to appeal the 2007 decision and were granted 2 months to file an appeal, they should have filed an appeal at the latest by 8 May 2007. For the applicants to notify the President at the leave to appeal hearing on 5 December 2012 that they wanted to file an appeal was more than 5½ years late. That was far too late. The President was clearly justified in not granting the applicants plea to file an appeal at the hearing of the application for leave to appeal by the second respondents.
8. The applicants plea at the leave to appeal hearing on 5 December 2012 for the opportunity to file a response to the appeal by the second respondents was also far too late. If the applicants had wanted to comply with the appeal procedures, their response to the second respondents appeal should have been filed at the latest by 29 May 2007. To leave matters until 5 December 2012 was also far too late. Again, the President was clearly justified in not granting leave to the applicants to file a response to the appeal by the applicants but to grant leave to appeal to the second respondents.
9. In my view, if the applicants had any real intention to appeal the 2007 decision or to file a response to the appeal by the second respondents, they would have done so well before the leave to appeal hearing on 5 December 2012. Not to do so for more than 5½ years clearly suggests that they had no such intention.
10. The outcome of the leave to appeal proceedings was that leave to appeal the 2007 decision to the appellate division of the LTC was granted to the second respondents.
11. To be noted here, by the time of the 2012 leave to appeal proceedings, Laupa Kose who had been the leader of the second respondents party in the 2007 proceedings had passed away and his sister Tuala Nia Maualaivao had been chosen by their family to be the leader of the second respondents.

(d) 2013 Land and Titles Court (LTC) appeal proceedings

12. At the hearing of the appeal by the second respondents before the appellate division of the LTC on 15 February 2013, both the second respondents and the applicants participated as parties and were given the same opportunities to be heard and examined by the Court. The second respondents led by Tuala Nia Maualaivao were the appellants and the applicants were the respondents. If there had been any natural justice defect in the hearing of the application for leave to appeal, that was cured at the appeal hearing.
13. The central issue that was before the appellate division of the LTC in 2013 was whether the bestowal of the title Laupa on Gia, Sione, Sevao, Paul and Totuna pursuant to para (4) of the decision 8 March 2007 by the LTC at First Instance should be cancelled. The contention by the second respondents was that pursuant to para (1) of the decision of 8 March 2007, the Court held:

“(1) The authority to choose and appoint a holder or holders of the title Laupa of Faleula is vested in the heirs of the title Laupa Leoo represented by the claimant party of today’s proceedings”

14. The claimant party to which para (1) of the decision of 8 March 2007 was referring was the party of the second respondents family. So the authority to choose and appoint a holder of the title Laupa belongs to them. However, the appointments of Gia, Sione, Sevao, Paul and Totuna to the title Laupa was not made with the consent of the late Laupa Kose who was the Sa’o of their family at the time. They also alleged that Feepo Sifo, one of the present applicants, was instrumental in the said appointments being made to the title Laupa but he had no authority to do so. The basis for this allegation by the second respondents is that before the bestowal of the title Laupa on Gia, Sione, Sevao, Paul and Totuna, Laupa Kose the late Sa’o of their family had made two attempts to meet with Feepo Sifo was unsuccessful. The said bestowal of the title Laupa were also held at the maota (customary residence) of Feepo Sifo. Furthermore, even though the Savali publication of the titles Laupa bestowed on Gia, Sione, Sevao, Paul and Totuna shows Malietoa as the faapogai (initiator), that could not be right. Paragraph (2) of the decision of 8 March 2007 is clear that Malietoa can only intervene if any differences arise between the heirs of the title Laupa when making their choices as to the holder or holders of the title Laupa because Malietoa holds only a pule faamalumalu (ceremonial authority).
15. The contention by the applicants in the 2013 proceedings, as it appears from the transcript of those proceedings in their answers to questions from the Court, was that the appointments of Gia, Sione, Sevao, Paul and Totuna to the title Laupa were made under the authority of Malietoa and that is confirmed by the publication in the Savali where Malietoa appeared as the faapogai (initiator) of those appointments. In other words, those appointments were not made by or under the authority of Feepo Sefo or the title Feepo but that of Malietoa. The problem here for the applicants is that they did not appeal the 2007 decision.
16. I think, one has to be aware of the realities of the types of situation which involved His Highness the late Malietoa Tanumafili II and his families around the country. Malietoa very often did not act on his own volition in matters pertaining to matai titles of his families. His families requested him before he acted. This is based on my many years of experience in the LTC. The bestowal in question of the title Laupa were also held at the maota of Feepo Sifo. Laupa Kose, the late Sa’o of the second respondents family had also made unsuccessful attempts to meet with Feepo Sifo before the said bestowal was held. In addition, the transcript of the 2013 proceedings shows that the second respondents testified that Gia, Sione, Sevao, Paul and Totuna are relatives of Feepo Gia and the applicants. In my respectful view, the reasonable inference to be drawn from all of this is that Feepo Sifo was instrumental in the appointments of Gia, Sione, Sevao, Paul and Totuna to the title Laupa. Even though the name of Malietoa appeared as faapogai in the Savali publication, it was Feepo Sifo who was instrumental in the making of the the appointments.
17. The decision of the appellate division of the LTC delivered on 1 March 2013 is as follows:

“1. The appeal by the Appellants is allowed.

“2. Paragraph (4) of the decision of the Court of First Instance of 8 March 2007 is set aside.

“3. The Registrar is ordered to cancel the titles Laupa of Gia, Sevao, Paul and Totuna from the Register of Matais”.

Motion for judicial review

18. The bench that heard and determined the appeal comprised of the President of the LTC and two LTC Judges. Only the President presided at the leave to appeal hearing. By the time of the leave to appeal hearing, Laupa Kose who had been the leader of the second respondents party in the 2007 proceedings in the LTC at First Instance had passed away. His sister Tuala Nia Maualivao who did not take part in the 2007 proceedings was chosen by the second respondents to be their leader in the leave to appeal hearing and then the appeal hearing.
19. Following the decision of the appellate division of the LTC, the applicants filed a motion for judicial review on 14 March 2014. The motion seeks orders: (a) to set aside part 4 of the LTC’s decision of 1 March 2013, and (b) for a rehearing of the appeal by a differently constituted bench. The grounds of the motion maybe set out as follows:

(a) The decision of the appellate division of the LTC (first respondent in these proceedings) violated the applicants right to a fair trial by an independent and impartial tribunal guaranteed by Article 9 of the Constitution.

(b) The President of the LTC should not have presided at the hearing of the appeal as he is related to the leader of the second respondents who were the appellants at the appeal hearing.

(c) As a result of the failure by the President to recuse himself, there was an actual or perceived bias on his part in favour of the second respondents.

20. The motion for judicial review were opposed by the first respondent and second respondents who filed strike out motions.

Strike out motion by the first respondent

21. The strike out motion by the first respondent relies on rule 70 and/or rule 206 of the Supreme Court (Civil Procedures) Rules 1980 and the inherent jurisdiction of the Court. The grounds of this strike out motion may be set out as follows:
    • (a) There was no apparent or perceived bias on the part of the President of the LTC so that there was no breach of the applicants right to a fair trial under Article 9 of the Constitution.
    • (b) The motion by the applicants seeks to ask this Court to re-examine the appeal that was before the appellate division of the LTC (the first respondent) but this Court has no jurisdiction to do so.
    • (c) The applicants ought to have known at the hearing of the appeal before the first respondent about the alleged connection of the President of the LTC and the leader of the second respondents and should have raised it before or during the hearing of the appeal.

Strike out motion by the second respondents

22. The strike out motion by the second respondents also relies on rules 70 and 206 of the Supreme Court (Civil Procedure) Rules 1980. The grounds of this strike out motion may be summarised as that the applicants have not shown any breach of their right to a fair trial under Article 9 of the Constitution.

Was there a breach of right to a fair trial under Article 9 of the Constitution?

23. The central issue raised in the applicants motion for judicial is that the hearing of the appeal by the first respondent was in breach of their right to a fair trial under Article 9 because of actual or perceived bias on the part of the President of the LTC due to his alleged connection to Tuala Nia Maualaivao, the leader of the second respondents. Even though the motion by the applicants is focused on the appeal hearing, the same issue that is raised would also to be relevant to the leave to appeal hearing because the President also presided in those proceedings and Tuala Nia Maualaivao was also the leader of the second respondents in the same proceedings. For better clarity, I will discuss this issue under the following subheadings:

(a) Alleged connection of the leader of the second respondents to the President of the LTC

24. As earlier mentioned, Tuala Nia Maualaivao did not take part as a member of her family’s party in the 2007 LTC proceedings. The leader of her family’s party in the 2007 proceedings was her late brother Laupa Kose. The appeal that was heard by the first respondent in 2013 arose from the decision of the LTC in the 2007 proceedings. By the time of the leave to appeal hearing in 2012, Laupa Kose had passed away. So the second respondents chose Tuala Nia Maualaivao to be the leader of their family’s party for the leave to appeal hearing and subsequently for the appeal hearing in 2013.
25. According to the affidavit sworn by the leader of the second respondents on 25 April 2014, she has a sister named Fania Silva. Her sister Fania Silva was married to Sala Isitolo Leota who has passed away. Sala Isitolo Leala was a first cousin of Lamositele Sio, the late father of the wife of the President of the LTC. She, therefore, has no blood connection to the President of the LTC. Neither does she have any direct familial ties to the President. The President of the LTC in his affidavit sworn on 16 May 2014 confirmed what is said in the affidavit of the leader of the second respondents. He said that he did not recuse himself from presiding in this matter because he considered that the connection between his wife and the leader of the second respondents was too remote.
26. In the joint affidavit by the applicants sworn on 5 March 2014, they said that they did not discover that the President of the LTC is related to the leader of the second respondents until after the hearing of the appeal in 2013. This must be in response to the allegation by the leader of the second respondents that the applicants ought to have known about the alleged connection between herself and the President prior to or during the leave to appeal hearing or the hearing of the appeal but did nothing about it.

(b) Relevant law

27. The approach to be adopted where there is an allegation of perceived bias under Samoan law was stated by the Court of Appeal in Stehlin v Police [1993] WSCA 5 where Cooke P, in delivering the judgment of the Court, said:
    • “The doctrine of disqualification for alleged bias has to be applied somewhat robustly in a jurisdiction of the size of Western Samoa. Indeed, the present tendency of case law around the world, including a recent decision of the House of Lords (R v Gough [1993] 3 A11 ER 724), is in the direction of robustness in this kind of matter... There was certainly no real danger of bias”
28. I must say that in the past, the work of the LTC had been brought to a halt at times because no Judge, or insufficient Judges, could sit to hear a case because of allegations of apparent or perceived bias. In about two cases, some of the parties called for overseas Judges to hear their cases even though such Judges would not understand the Samoan customs and usages relating to matai titles and customary lands. These allegations of apparent or perceived bias were often based on remote family connections or previous relationships of a Judge before his appointment as a Judge. The “reasonable suspicion of bias” and the “reasonable likelihood of bias” tests created real difficulties because of the unique circumstances of our own society in relation to family relationships and connections. I am, therefore, of the view that a test for bias that will make the Courts unworkable or difficult to operate efficiently would not be a good test for apparent or perceived bias for Samoa. Because of this realization, the Samoan Courts since Police v Stehlin [1993] WSCA 5 have consistently followed the “real danger of bias” test: see, for example, Peniamina v Land and Titles Court [2004] WSSC 12; Leleua v Land and Titles Court [2009] WSSC 123; Lauvai v Land and Titles Court [2010] WSSC 185.

(c) Application of the real danger of bias test

29. In applying the real danger of bias to this case, the following circumstances should be taken into account. Laupa Kose the then Sa’o of the second respondents family did not consent to the appointments that were made to the title Laupa which were the subject of these proceedings; in 2007 the LTC at First Instance determined that the authority to choose and appoint a holder of the title Laupa is vested in the heirs of Laupa Leoo and the applicants did not appeal that decision; in the 2007 decision Malietoa was not vested with the authority to make appointments to the title Laupa and the applicants did not appeal; the individuals who were appointed to the title Laupa were not only all relatives of the applicants but their appointments were held at the maota of Sevao Sifo which suggest that the applicants were instrumental in the making of those appointments; and the connection between the leader of the second respondents and the President of the LTC was remote.
30. Taking into account all of those circumstances, there could not be perceived that there was a ‘real danger’ of bias on the part of the President of the LTC when he presided at the appeal hearing in 2013 and the leave to appeal hearing in 2012. There was also no actual bias which appears from the way the leave to appeal hearing or the hearing of the appeal was conducted by the President.

Conclusion

1. For the foregoing reasons, I had decided to strike out the motion for judicial review.

CHIEF JUSTICE