IN THE COURT OF APPEAL OF SAMOA
HELD AT APIA

IN THE MATTER of ALC 4363, 433 P1 & P2 concerning the title
ASIATA in the Branch of Maimaifaga of Satupaitea, Savaii.

AND

ASIATA PENIAMINA & OTHERS
of Satupaitea, Savaii.
Appellant

AND

THE LAND & TITLES COURT
First Respondent

AND

ANAPU AIALII, SELESELE TANIELU & OTHERS
of Satupaitea, Savaii.
Second Respondents

Coram: The Rt Hon Lord Cooke of Thorndon, President
The Rt Hon Sir Maurice Casey
The Rt Hon Sir Gordon Bisson

Hearing: 6 December 2004

Counsel: T Malifa and T R S Toailoa for Appellants
D Clarke and D Kerslake for First Respondent
No appearance of Second Respondents

Judgment: 17 December 2004

JUDGMENT OF THE COURT DELIVERED BY SIR MAURICE CASEY

The appellants moved the Supreme Court for judicial review seeking to set aside or quash a decision of the Land and Titles Court given on 27 March 1991 relating to the above-mentioned title Asiata. The grounds alleged were judicial bias, violation of the principle of res judicata, and want of jurisdiction. An application to strike out those allegations was made by the first respondent, the Land and Titles Court, and on 14 September 2004 the Chief Justice struck out the allegations of bias, but allowed the other allegations to stand, to be determined in a substantive hearing. The present appeal was directed at His Honour’s rejection of the allegation of judicial bias. In both the Supreme Court and in this Court there was no appearance by the second respondents. The Chief Justice recorded that appellants’ counsel said they had been served, but their counsel had advised that they would not take part in the proceedings.

Background

The lengthy history of this matter has been fully set out by the Chief Justice which we summarise as follows. The appellant Asiata Peniamina claims he is the holder of the Asiata title in the branch of Maimaifaga, and that the second respondents are the heirs of Asiata Eliapo, who was at one time the holder of the Asiata title. In 1916 the Land and Titles Commission (the fore-runner of the Land and Titles Court) decided that Asiata Eliapo was not the true heir of that title. In 1954 that Court accepted Asiata Lagolago (Asiata Eliapo’s son and the uncle of the first respondent, Anapu Aialii) to be also a holder, but confirmed that they were not the true heirs of the title, and that their family had no right to it. Instead, its true heirs were those of Taetoloa and Feauaina, who had the authority over the title. In 1973 the Court held that these latter heirs formed the aga potopoto (family) of the title. The heirs of Asiata Eliapo and Asiata Lagolago were not parties to that proceeding and were not mentioned. Similar rulings affirming the heirs of Taetola and Feauaina as being the heirs of the title and having authority over it were made in 1976 and 1977, when unauthorised appointments to the title were cancelled.

Anapu Alialii had attempted unsuccessfully to be joined as a party to the 1977 proceedings. By 1988 he had been appointed a Samoan Judge of the Land and Titles Court, and on 20 June of that year he wrote to the president of that Court, Justice Norman Smith, complaining that the 1916 decision had been reached without proper genealogical evidence and seeking a re-hearing, to which the president replied by memorandum on 12 August 1988 stating that he could file a fresh petition under S 38 of The Land and Titles Act. Whether one was filed is not clear: the Court in its decision of 27 March 1991 seems to have treated the President’s memorandum as a direction for a re-hearing, in which the appellant Asiata Peniamina opposed Anapu Aialii’s application. The Court held that Asiato Eliapo and Asiata Lagolago were the true heirs of the title, and in effect set aside the earlier decisions. As noted above, the appellants moved for judicial review on 21 August 2003, seeking orders to quash that decision of the Land and Titles Court and to declare it null and void, on the grounds that it was tainted by judicial bias; that it violated the principle of res judicata; and that the Court had no jurisdiction to set aside its earlier decisions.

Bias

The Chief Justice correctly adopted the approach advocated by Lord Goff in R v Gough [1993] 2 All ER 724, 737 asking whether, in the relevant circumstances disclosed in the material before him (which was all that could have effectively been put forward in substantive proceedings), there was a real danger of bias on the part of the Judge. The test is an objective one. This approach was favoured by the New Zealand Court of Appeal in Auckland Casino Ltd v Casino Control Authority [1995] NZLR 142 and in Collier v Attorney General (CA 84/00 and 218/00; 13 November 2001), while in the Court of Appeal in Samoa it was described as fostering the robust approach to allegations of bias appropriate to this jurisdiction – per Cooke P in Sonny Stehlin v Police ([1993] WSCA 5; CA 13/93; 23 March 1993). Appellants’ counsel suggested that the House of Lords had resiled from the Gough test of real danger of bias in In re Pinochet [2000] AC 119. Although Lord Browne-Wilkinson referred to different approaches in some Commonwealth jurisdictions, he expressed no view on them. The case did not depend on any implication of bias, but simply on the principle of automatic disqualification of a Judge involved in the same cause as a party. In any event an alternative test derived from Pinochet and postulating the hypothetical reasonable and informed observer does not usually and would not in this case produce any difference from the real danger test.

Three matters were relied on to support of the claim of bias:

(1)	A suspected family connection between the presiding Judge of the Land and Titles Court at the 1991 hearing and Anapu Aialii. Asiata Peniamina raised this at the outset of that hearing, even though he had not responded to the customary notice given to parties at least seven days beforehand to advise the registrar of any judge they did not wish to sit. The record shows that the Judge explained there was no such family connection, and that the appellant was satisfied and agreed to continue. The Chief Justice added that there was nothing in the appellant’s affidavits filed in the present proceedings showing a connection. There is no substance in this point.

(2)	The presiding Judge should not have sat because he had been a member of the Court in 1977 when decisions were given cancelling appointments made to the title Asiata in the branch of Maimaifaga without the consent of the heirs of Taitola and Feauaina, who had been given authority over the title. Anapu Aialii was not a party to those proceedings although he had applied unsuccessfully to join, and they were not concerned with the question of whether his grandfather Asiata Eliapo and his uncle Asiata Lagolago were heirs of the title, which was the issue in the 1991 decision. Those 1977 decisions involved straightforward applications of the earlier judgments going back to 1916 recognising other persons as the heirs having authority over the title. We agree with the Chief Justice that the Judge’s involvement in this way in 1977 cannot support a conclusion that there was real danger of bias when he sat in 1991.

(3)	By the time of the 1991 hearing Anapu Aialii had become a Samoan Judge of the Court and accordingly was a colleague and work-mate of the judges sitting on the case. The Chief Justice assumed there was a perception of bias in this situation without any finding to that effect, but concluded that the doctrine of necessity was a sufficient justification. This common-law doctrine whose origins can be traced back to 1429 (see the discussion by Gillard J in Metropolitan Fire & Emergency Services Board v Churchill [1998] VSC 51) is an exception to the general rule, allowing a person disqualified for bias to sit if otherwise a court cannot be constituted to hear the matter. It was considered by the Australian High Court in Laws v Australian Broadcasting Tribunal (1990) CLR 70 and affirmed by the majority (Mason CJ, Brennan and Deane JJ), but with the qualification by Deane J that it would apply only to the extent that necessity justifies, and not where its application would involve positive and substantial injustice. In Ebner v Official Trustee (2000) 205 CLR 337 the majority expressed the obiter view that necessity would have justified a Judge’s continuing to sit and give a decision in a lengthy trial after inheriting a small financial interest in one of the parties. If it is possible and practicable to appoint another person the doctrine does not apply.

The Chief Justice took the view that if the allegation of bias was well-founded because of the affinity of Judges with each other, then every Land and Title Court Judge in Samoa would have to disqualify himself for the same reason. Consequently the case could never be heard, because that Court has exclusive jurisdiction over matters relating to matai titles and customary land. When it sits it must include at least two Samoan Judges, and their qualification for appointment is the holding of a matai title, which is one registered under the Land and Titles Act (see the definition in s 2). It would not be reasonably possible or practicable to bring in overseas Judges to take their place, as they would lack this necessary qualification. We are satisfied that the Chief Justice correctly applied this doctrine in these circumstances. The decision of the Land and Titles Court gives no impression that there has been “positive and substantial injustice” (per Deane J in Laws v Australian Broadcasting Tribunal at p 97) which might warrant the intervention of the Court.

Unfairness by Trial Judge 

In their final ground of appeal the appellants alleged errors of fact and law on the part of the Chief Justice showing an unbalanced and unfair view of the case, and listed a catalogue of comments and omissions in his judgment. They were said to suggest bias and favouritism for Anapu Aialii. This unjustified criticism was trimmed down in Counsel’s submission to a proposition that His Honour’s decision was based on an unfair exercise of judicial discretion by reason of those listed matters. We cannot see how they have any bearing on the exercise of his discretion to strike out the bias allegations. As this judgment demonstrates, he had ample justification for doing so, and an order was inevitable. 

Conclusion

During the hearing we thought it might be appropriate to treat the appeal as a substantive hearing of the other allegations in the motion relating to want of jurisdiction and res judicata. At our suggestion, counsel made some written submissions on those issues. On further consideration, we now think it preferable that these should be dealt with in a substantive hearing in the Supreme Court in the normal way. We thank counsel for their industry in producing those submissions at short notice; no doubt their research will be useful at that hearing.

The appeal is dismissed with costs of $500 to the first respondent in this Court together with disbursements to be fixed by the registrar if the parties cannot agree.

Solicitors:
Sogi Law Firm and Toailoa Law Firm for Appellants
Attorney General’s Office for First Respondent