Ioane v Judicial Service Commission [2021] WSSC 54 (2 November 2021)

THE SUPREME COURT OF SAMOA
IOANE v JUDICIAL SERVICE COMMISSION [2021] WSSC 54

Case name:	Ioane v Judicial Service Commission
Citation:	[2021] WSSC 54
Decision date:	02 November 2021
Parties:	IOANE of Falelatai, matai (Applicant) v JUDICIAL SERVICE COMMISSION established pursuant to Article 72 of the Constitution of Samoa (First Respondent) ATTORNEY GENERAL sued for the INDEPENDENT STATE OF SAMOA according to an order of removal of the plaintiff signed by the Head of State (Second Respondent)
Hearing date(s):	16 August 2021
Written Decision (s):	02 November 2021
File number(s):
Jurisdiction:	Civil
Place of delivery:	The Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Vaai
Order (s):	The amended statement of claim and motion for judicial review are struck out. The Applicant will pay costs of $800 to each Respondent.
Representation:	A Su'a for the Applicant S Leung Wai for the First Respondents DJ Fong for the Second Respondent
Catchwords:	motion for judicial review – motion to strike-out – misbehavior – statement of claim – notice of motion – breach of natural justice – breach of the judicial code of ethics –– rule of law
Words and phrases:	Application for leave to appeal
Legislation cited	Acts Interpretation Act 2015, sections 28(2) and 43 Constitution 1960, article 72(4) Land and Titles Court Act 1981, section 29(4) Supreme Court (Civil Procedure) Rules, 1980, Section 70
Cases cited:	Enosa v Samoa Observer Company Ltd [2005] WSSC 6. Reupena v Senara [2015] WSSC 53 Suafa “Tu'umatavai” of Matavai Safune in ALC 6629 P12-P17
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

IOANE of Falelatai, Matai
Applicant

A N D

JUDICIAL SERVICE COMMISSION established pursuant to Article 72 of the Constitution of Samoa
First Respondent

AND
THE ATTORNEY GENERAL sued for the INDEPENDNET STATE OF SAMOA, according to an order of removal of the plaintiff signed by the Head of State
Second Respondent

Counsel:
A Su'a for the Applicant
S Leung Wai for the First Respondent
DJ Fong for the Second Respondent

Written Decision: 02 November 2021

WRITTEN DECISION OF VAAI J

Introduction

1. This proceeding is concerned with motions filed by the First and Second Respondents to strike-out the statement of claim and notice of motion by the Applicant which seeks orders to:

(i) review the decision and recommendation of the First Respondent; and

(ii) review the decision of the Second Respondent.

The Applicant

2. A former judge of the Land and Titles Court, the Applicant was appointed judge in December 2015. On the 05^th September 2019 the Applicant and other judges were suspended from their judicial duties following complaints received by the First Respondent (JSC). A three member judicial complaints committee (“committee”) was appointed by the JSC to investigate the complaints.
3. Following the findings and recommendations of the committee, the Applicant and another judge were removed and dismissed as judges of the Land and Titles Court. By letter dated 29^th November 2019 the Applicant requested the JSC to reconsider its decision. The grounds and reasons to reconsider are set out in the letter.
4. On the 16^th December 2019 the JSC considered and discussed the request. The decision to terminate stood.

Background to the lodging of complaints against the Applicant and others

5. The Applicant was one of the four judges appointed to travel to Savaii island to preside at the Tuasivi Court on the week commencing Monday 08^th August 2016. Deputy President Seve Panapa (“Deputy President”) was the leader of the team. They travelled on Sunday 07^th August and were all accommodated in one house next to the Tuasivi Court house.
6. The list of cases scheduled for hearing at Tuasivi is normally distributed in Apia on Friday of the week before to enable judges to identify if any of them has unmanageable conflicts in any of the cases and to allow for substitution if necessary.
7. Scheduled for hearing on Tuesday was the determination of the original blood descendants of the matai title Tu’umatavai of Safune village, in particular the Asoto’elau branch. Another matter from a different village was also listed for Tuesday.
8. The Applicant did hold the title Tu'umatavai but in 2015 the Land and Titles removed and disallowed the Applicant and other holders of the title. This was before the Applicant was appointed a judge in 2015. Quite properly, the Applicant told the Deputy President of his conflict in the Tu'umatavai matter.
9. On Tuesday the full bench including the Applicant presided. The Applicant delivered the opening prayer before proceedings commenced. The other matter was called and adjourned and the Tu'umatavai was stood down to commence after the short break. With the exception of the Applicant the bench returned to the Court after the break to commence the hearing of the Tu'umatavai matter. It was adjourned part-heard to the next day, Wednesday, for continuation.
10. On Wednesday, the full Coram including the Applicant entered the Court and two matters from two different villages were called, adjourned and the Court retired before the Tu'umatavai matter resumed. Hearing of the Tu'umatavai matter was completed on Thursday and adjourned to 01^st September 2016 for delivery of decision. This date was later changed to 08^th September 2016.
11. The Deputy President, the Applicant and one of the presiding judge in the Tu'umatavai matter returned to Tuasivi the week commencing Monday 05^th September 2016 to hear scheduled cases and to deliver the decision on Thursday 08^th September of the Tu'umatavai matter.
12. On Tuesday the 06^th September a hand written draft of the decision was given by the Deputy President to the typist at Tuasivi Court for typing. The print out copy of the typed draft was given to the Deputy President who made amendments and additions. The amended typed draft decision was returned to the Deputy President before the typist finished work on Tuesday.
13. On Thursday morning, the Deputy President again made some minor changes which were attended to before copies were printed for the signatures and delivery of the decision.

The Complaints

14. Two of the litigants lodged applications for leave to appeal the decision of 08^th September 2016. Both applications attacked the integrity of the Applicant and of the Court. In summary they allege:

(i) the Court and its decision was influenced and corrupted by the Applicant;

(ii) the presence of the Applicant at Tuasivi during the week of the hearing was questionable, suspicious, allowed the Applicant to influence the Court;

(iii) it was unsettling and suspicious for the Applicant to stay together in the same house with the other judges during the week;

(iv) the Applicant’s immediate family genealogy was included in paragraph 12 of the decision, yet those details were not before the Court either by way of written statements of the parties, by way of evidence, or through the responses of parties to questions from the bench. Yet paragraph 12 specifically names the Applicant, his father and his siblings.

15. Upon receipt of the applications for leave to appeal, the President of the Land and Titles lodged the applications with the JSC for the investigation of the complaints.

Paragraph 12 of the Court’s decision

16. It is common ground that the contents of paragraph 12 (other than the first two named persons) was extraneous material. It was not included in any written materials filed by the parties nor in the oral evidence adduced before the Court. Paragraph 12 was inserted obviously for the benefit of the Applicant and his immediate family.

The Judicial Complaints committee (“committee”)

17. The committee was established by the JSC to investigate the complaints against the judges and the Applicant. It comprised of Taulapapa Brenda Heather-Latu, a former Attorney General as the Chairperson; Utufua Naseri, a retired Church Minister; and Fata Meafou, a retired and former Deputy Registrar of the Land and Titles Court.
18. The purpose of the investigation pursuant to the Terms of Reference at paragraph 5 is to:

(i) Inquire into, review and investigate complaints received by the President of the Land and Titles Court and the Acting Chief Justice, against the suspended judges;

(ii) determine as to whether the actions and the conduct of the suspended judges in relation to the complaints, with reference to the matter of Suafa “Tu'umatavai” of Matavai Safune in ALC 6629 P12-P17, dated 08 September 2016 in the Preliminary Hearing:

(a) Amount to misbehaviour?

(b) Breached the judicial code of ethics?

(c) Constitutes conduct unbecoming of a Judge of the LTC?

(iii) and if a violation is found to have been committed, to recommend the appropriate penalty or remedy to be undertaken;

(iv) complete these tasks and functions by no later than 31^st October 2019 or such other time as allowed by the Commission.

19. When the Applicant was suspended by letter of the 05^th September 2019 signed by the Chairman of the JSC he was also informed:

(i) that a committee will be established to investigate the complaints;

(ii) the committee will advise him of the venue and the time the committee will interview the Applicant.

20. By letter dated 15^th October 2019, the secretary of the committee advised the Applicant he will appear before the committee on the 17^th October 2019 at 1pm. The two applications for leave to appeal containing the complaints, the transcript of proceedings in the Tuasivi Court and the decision of the Court were enclosed with the same letter.

Procedure of the committee

21. There is no transcript of the proceedings of the committee. The Chairperson did take handwritten notes of the proceedings. She has also filed an affidavit explaining the process and in particular, for this exercise, the responses of the Applicant as well as his oral statements to the committee. She deposed in paragraph 15 of her affidavit:
    15. IN my respectful view, the committee properly conducted its inquiry in accordance with its Terms of Reference, and in a fair and reasonable manner and put the allegations or statements made by others to the Judges concerned and were careful to ensure that each witness clearly:
        1. Understood the reason for their attendance and the role of the committee;
        2. Were given the opportunity to express their views in response to each question asked by the committee by the use of open questions;
        3. Were told of the statements made by others about them (or their actions) and invited to respond;
        4. Were asked to explain or clarify any issues which the committee were unclear about;
        5. Were asked if they had any questions of the committee, which it responded to.

The Applicant’s interview

22. The Applicant obviously acknowledged he travelled to Savaii, ate, slept and lived in the same house with his fellow judges from Monday to Thursday.
    
23. He admitted he discussed the case with the judges. His colleagues were teasing him that he was not an heir of the title as his name was not mentioned in any of the statements. He explained in detail to the judges his lineage to the title.
24. He admitted that despite some mistake in the first line of paragraph 12 of the decision, the contents of the paragraph are the details of his genealogy he told the judges. Counsel for the Applicant quite properly and with commendable frankness conceded that the contents of paragraph 12 could only have been provided by the Applicant.
25. He denied the allegation by the Deputy President it was him, the Applicant who inserted paragraph 12 into the Court’s decision. The committee accepted that the Deputy President wrote paragraph 12.
26. The Applicant also wanted to relay to the committee numerous other serious incidents in the Land and Titles Court; however, the committee quite properly denied the request.

Applicant’s motion for Judicial Review

27. The amended motion seeks:

(i) Certiorari to quash or nullify and declare void the advice and recommendation of the First Respondent to terminate the services of the Applicant.

(ii) Certiorari to quash and declare void the decision or order of removal signed by the Second Respondent to terminate the services of the Applicant.

(iii) To declare the order of the removal of the Applicant signed by the Head of State as unlawful and void ab initio.

28. The amended motion is supported by an affidavit from the Applicant.
29. The amended statement of claim pleads two causes of action:

(i) Breach of Article 9(1) of the Constitution;

(ii) Breach of natural justice.

30. Relief sought in the statement of claim are:

(i) Damages of $150,000 for pain and suffering and loss of income;

(ii) Certiorari to quash the decisions of the First and Second Respondents as sought in the motion;

(iii) Declaratory orders to declare the order of removal by the Head of State as unlawful and void ab initio.

Application to strike-out the statement of claim and motion for Judicial Review

31. Before the amended statement of claim was filed, the JSC had already filed the application to strike-out the claim and motion. Consequent to the filing of the amended statement of claim, which added the Second Respondent, the Second Respondent filed the strike-out application. In response to the amended statement of claim the JSC filed a notice of opposition alleging that:

(i) There is no breach of Article 9(1) of the Constitution. The Article applies only to the determination of civil rights and obligations or of any charge for any offence to a fair and public hearing;

(ii) Article 74 of the Constitution does not prohibit the First Respondent from appointing the committee to investigate the complaints against the Applicant and other judges.

32. The JSC’s notice of opposition was incorporated with and to be dealt together with its strike-out application.

Strike-out principles

33. All counsels are in agreement as to the settled principles applicable to strike-out motions. In Woodroffe v Mataia^[1] the Court of Appeal set out the principles at paragraphs 16 & 17.

“[16] The principles applicable in a strike-out context are well settled and for present purposes may be shortly stated. Section 70 of the Supreme Court (Civil Procedure) Rules, 1980, provides:

‘No cause of action - Where by any proceedings no cause of action is disclosed the Judge may, on the application of the defendant order the proceedings to be struck out.’

This jurisdiction, however, is to be sparingly exercised. A claim may be struck out as disclosing no cause of action only where it is plain and obvious that it is so clearly untenable that it cannot possibly succeed: see Sapolu CJ in Enosa v Samoa Observer Company Ltd [2005] WSSC 6.

[17] Moreover, where despite inadequacies in the manner in which the case is pleaded the case nonetheless appears to have merit, time may be allowed to amend the pleading. Importantly, in assessing the case the Court proceeds on the assumption that the facts pleaded in the claim are capable of proof: see Reupena v Senara [2015] WSSC 53. This assumption may, however, be rebutted where uncontested affidavit evidence establishes that some matter essential to the claim is plainly incapable of proof.”

Breach of Article 9(1) of the Constitution?

34. The Applicant contended he was denied the right by the JSC, to a fair and public hearing by an independent and impartial tribunal established under the law, when the JSC appointed a committee to investigate the complaints instead of referring the complaints to a tribunal. He also contended the committee did not grant him a fair hearing by:

(i) giving him less than 48 hours to prepare for the investigation;

(ii) failing to provide him with witnesses statements;

(iii) failing to give him the opportunity to be heard before the committee determined him guilty of misbehaviour.

35. Against the Second Respondent, the Applicant contended that he was denied the right to be heard before the Head of State signed the order removing and terminating his services as a judge of the Land and Titles Court; a position he was entitled to hold until 65 years old or more.

Establishment of the committee by the JSC to investigate the complaints

36. The Applicant submitted that the JSC has no power to establish the committee and to delegate to the committee. Submissions by counsel on this issue in my respectful view is wordy, confusing and illogical. At paragraph 63 of his latest set of submissions^[2] dated 23 August 2021, he submits how the committee could have been created. He contended:

63. We respectfully submit, that the First Respondent has no powers by the referred provisions of the law to delegate as it did with the Judicial Complaints committee. In fact, the duty and function of the First Respondent is limited to its advice to the Head of State to dismiss the Applicant. Simply put, the powers could have been delegated by the Head of State to the Minister. Subsequently, the Minister may delegate such powers to an associate Minister or public officer. Accordingly, this is the process by which the Judicial Complaints committee could have been created and its panel then appointed to investigate and then report to the First Respondent thereon, for its advice to the Head of State.

37. The referred provisions articulated by the Applicant in the first and second line of paragraph 63 are the:

(i) section 29(4) Land and Titles Court Act 1981,

(ii) sections 28(2) and 43 Acts Interpretation Act 2015,

(iii) article 72(4) of the Constitution 1960.

These are enactments which the Respondents contended gives the JSC the power to delegate and to establish the committee.

38. In developing his submissions, counsel contended that the powers of the Head of State to dismiss should comply with due process as implied by section 28(2) Acts Interpretation Act 2015. The same powers enables the Head of State to create a tribunal to hear and determine the complaints. At paragraph 65 the submission states:

65. An analogy to assist the Court in this part of our submissions is as follows;

65.1 The Head of State delegates its powers to dismiss the Applicant by creating and appoint a tribunal for the First Respondent;

65.2 The First Respondent to either preside as the tribunal or to create and appoint an independent tribunal to hear the complaints against the Applicant;

65.3 The First Respondent then creates and appoints an investigation committee in the form of the appointed Judicial Complaints committee;

65.4 The Judicial Complaints committee to appoint a prosecution while also giving the opportunity for the Applicant to engage legal representation;

65.5 The matter is then to be adjudicated and determined by the First Respondent which findings should then advise the Head of State thereof.

39. A complete turnaround in the Applicant’s argument is made at paragraphs 85 and 86 of the submissions which states:

85. We do not contend that the First Respondent does not have the authority or power to establish a Judicial Complaints committee to investigate the complaint. However, more so of the Applicant’s contention is that, the whole process chosen by the First Respondent, (i.e., setting-up the Judicial Complaints committee that gathers evidence and then submit it to the First Respondent for final review and determination without any opportunity for the Applicant to personally test the evidence against him) is a violation of Article 9(1) of the Constitution.

86. It is our contention that the same powers, namely section 29(4) of the Land and Titles Act 1981; Article 72(4) of the Constitution 1960; sections 28 and 43 of the Acts Interpretation Act 2015, that enabled the First Respondent to establish the Judicial Complaints committee also enables them to formulate other mechanisms for these proceedings, which would be compliant with Article 9(1).

40. To comply with the nemo judex principle the JSC could not investigate the complaints and determine whether the appointment of the Applicant should be terminated. Mr. Leung-Wai, counsel for the JSC, correctly submitted the JSC quite properly and lawfully established the committee to investigate the complaints.
41. Prohibition against delegation relates to the decision and not necessarily the process leading to the decision.^[3]
42. The power to dismiss the Applicant, pursuant to Article 72(3) of the Constitution 1960 (Article 79(4) Amended Constitution)^[4] is vested in the JSC which then advised the Head of State to issue the appropriate order.

Did the committee breach the rules of natural justice?

43. The Applicant submitted that the investigation process by the committee was unfair and procedurally defective. It is alleged:

(i) the Applicant denied and contended most parts of the evidence and findings by the committee;

(ii) the Applicant was not given the evidence to respond to;

(iii) the Applicant was not given reasonable time to prepare;

(iv) the Applicant was denied the right to hear and to question the evidence of the Respondents;

(v) the Applicant was not given the opportunity to make submissions on the evidence gathered by the committee;

(vi) the Applicant was not informed of the right to legal representation.

44. Counsel for the JSC conceded in his submissions that the report of the committee should have been made available to the Applicant before the JSC decided on the fate of the Applicant. However, he submitted that in fairness to the Applicant the JSC did reconsider its decision in response to the written request by the Applicant.
45. The contention by the Applicant as to the nature of the investigation and the procedure of the committee is in the Court’s view misconceived and materially incorrect. In the first place the committee investigated the complaints of the two parties in the Tu'umatavai title case. The Respondents, the JSC and Second Respondents were not the complainants and did not appear before the committee as alleged in paragraph 88.3 of the Applicant’s submissions. In the second place the committee did not gather evidence against the Applicant, or the other judges before the Applicant was interviewed. Before the Applicant and the other judges were interviewed on 17^th October 2019, the committee interviewed the staff of the Ministry of Justice and Courts Administration to get an insight and overview of the work of the Land and Titles Court, its procedures and mechanisms. It also heard from the two complainants.
46. The focus of the complaints against the Applicant and the judges is the inclusion of the Applicant’s genealogy in paragraph 12 of the decision when it was quite obvious to all parties, the judges, and the Applicant, that the Applicant’s genealogy was not the subject of any written material or oral testimony at the hearing.
47. As noted in paragraph 20 above, the two copies of the complaints contained in the complainants application for leave to appeal were given to the Applicant two days before he appeared before the committee. The allegations contained in the complaints are:

(i) the Applicant was at Tuasivi Court during the hearing of the Tu'umatavai matter;

(ii) the Applicant was living in the same house as the presiding judges;

(iii) the Applicant’s family genealogy was included in paragraph 12 but the genealogy was not discussed or mentioned during the hearing.

These allegations are admitted by the Applicant.

48. During his interview the Applicant:

(i) told the committee, he went to Savaii and stayed in Savaii on instructions from the Deputy President;

(ii) admitted to the committee he did discuss with the judges his family genealogy and connection to the Tu'umatavai title, at the judges residence;

(iii) denied he told the judges to include his genealogy in the decision. He also denied inserting paragraph 12 in the decision. As noted in paragraph 25 above, the committee accepted it was the Deputy President who wrote paragraph 12.

49. The evidence upon which the committee relied on and based its findings was the evidence admitted by the Applicant and what the Applicant told the committee. So for the Applicant’s counsel to submit that the Applicant denied and contended most parts of the evidence as noted in paragraph 43(1) above and paragraph 88(1) of the submissions dated 23^rd August 2021 in plainly incorrect. No piece of evidence was identified by the Applicant to be incorrect and contentious.
50. A similar approach is adopted by the Applicant in his supporting affidavit in which he accused the committee, particularly the Chairperson of having already made up their minds. He also made generalisations of unfairness without giving particulars or identifying remarks or questions which support the allegation. He simply stated at paragraph 6 of his affidavit:

“My impression of my interview with the Investigating Committee, that they had already made up their minds of their decision before I attended the interview with them. The Committee Chair took up most of the time while the other two members only had one or two questions each... ”

51. Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representation on his own behalf either before the decision is taken with a view to producing a favourable result, or after it is taken with a view to procuring its modification or both.^[5]
52. As noted in paragraph 44 the Applicant did seek to procure a review of the recommendations of the committee and a re-consideration by the JSC of its decision. He identified, correctly, that the vital issue is the inclusion of his genealogy in paragraph 12 of the decision. Quite properly and correctly his plea for reconsideration of the decision to terminate his service was denied by the JSC.

Discretion to grant the orders

53. Counsel for JSC submitted that even if the report of the committee was provided to the Applicant to enable the Applicant to respond, the JSC would have reached the same decision and revoke the appointment of the Applicant.
54. Counsel for the Applicant contended that it is in the interest of justice to grant the orders sought given the seriousness of the complaint, the substantial defect in the investigations by the committee, and the unrepairable consequences of the decision on the Applicant.
55. Contrary to established practice, the Applicant did travel to Savaii. If indeed he was not aware until he got to Savaii that the Tu'umatavai matter was listed for hearing in Savaii, he should have returned to Apia. His excuse that he was told by the Deputy President to stay is lame, and childish excuse from a mature man who spent thirty four (34) years working as a public servant and three (3) years in the public sector before being sworn a judge in 2015. His stay in Savaii with the sanction of the Deputy President, was contrary to established practices. It was contrary to good sense as litigants to the Tu'umatavai title case obviously knew. It contravenes paragraph 4.5 of Part III of the Land and Titles Bench Book. Part of that paragraph reads:

“Judges should exhibit and promote high standards of judicial conduct so as to reinforce public confidence which is the cornerstone of judicial independence.”

56. The Applicant, the Deputy President and two other judges blatantly ignored the advice of the Bench Book and as a consequence successfully eroded the confidence of the public in the judiciary.
57. Paragraph 4.5 in the Bench Book also states:

“Judges must firmly reject any attempt to influence their decisions in any matter before the Court outside the process of the Court.”

This requirement is fundamental to the rule of law and fair trial. Judges must decide disputes based on law, evidence and procedure without pressure, influence or interference from the parties, public or other judges. The Applicant despite his vested interest in the Tu'umatavai matter decided and agreed to discuss and in fact told the bench of his genealogy to the title. His lame excuse that he was asked is totally irrelevant and unacceptable.

58. The Applicant claims the decision of the JSC to terminate his services has done irreparable harm to his integrity and embarrassment to his family. The Court says he and the three judges have embarrassed and ruined the integrity of the judiciary.
59. In the interest of justice the orders sought against the JSC should not be considered in the surrounding circumstances.

Allegations against the Second Respondent

60. The Applicant alleges that the Second Respondent breached Article 9(1) when the Head of State in exercising his powers under section 29(4) Land and Titles Act 1981:

(i) failed to grant to the Applicant access to the Court;

(ii) failed to disclose all evidence against the Applicant; and

(iii) failed to grant to the Applicant the opportunity to be heard.

61. The Court has already addressed and dealt with all the above grounds in the strike-out motion filed by the JSC.
62. The Court accepts the contentions by the Second Respondent that the Head of State is not obliged to hear directly from the Applicant. Article 72(3) of the Constitution 1960 vests in the Head of State the power to dismiss a judge on the advice of the JSC. Any challenge by judicial review of the dismissal by a disgruntled judge should be directed against the advice of the JSC.

Result

(i) The amended statement of claim and motion for judicial review are struck out.

(ii) The Applicant will pay costs of $800 to each Respondent.

JUSTICE VAAI

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^[1] Woodroffe v Mataia [2017] WSCA 5 (31 March 2017).
^[2] Applicant counsel filed 4 sets of submissions:

(a) Submissions of Applicant opposing Respondent’s application to strike-out (29/01/21).

(b) Submissions of Applicant opposing Respondent’s submission to strike-out (02/02/21).

(c) Submissions of Applicant opposing Second Respondent’s submissions (13/08/21).

(d) Submissions for the Applicant (23/08/21).
^[3] R (Varma) v HRH The Duke of Kent [2004] EWHC 1705 (Admin).
^[4] There is no Article 72(4) in the 1960 and the Amended Constitution cited by counsels for the Applicant and JSC in their submissions.
^[5] Regina v Secretary of State for the Home Department ex parte Doody [1993] UKHL 8; [1993] 3 WLR 154 at 168.