IN THE SUPREME COURT OF SAMOA
HELD AT APIA

IN THE MATTER of ALC 5126 P1 – P7, and the decision of the First Respondent of 9 July 2 004 granting leave to appeal to the Second Respondent.

AND

IN THE MATTER of a Motion for Judicial Review.

BETWEEN

PUNAFELUTU MAIAVA RS TOAILOA
of Leili, Solicitor.
Applicant

AND

PATU TIAVAASUE FALEFATU SAPOLU CJ,
President of the Land and Titles Court.
First Respondent

AND

SUA RIMONI,
of Lotopa.
Second Respondent

Counsel: TMP Toailoa Applicant in person
T Malifa for the Applicant
B Heather-Latu Madam Attorney General and D Clarke for the First Respondent
R Drake for the Second Respondent

Hearing: 2, 3 December 2004
Judgment: 17 December 2004

JUDGMENT OF BISSON J

On the 22nd April 1999 the Land and Titles gave its decision on certain petitions as to the true heirs of the title Vui. From this decision, a petition seeking the leave of the President of the Land and Titles Court to appeal was filed by Heirs of Vui Maluolelagi II, I’iga Vui Maluolelagi Su’a Siope Ii and Su’a Rimoni requesting that the said decision of the Land and Titles Court be set aside.

This petition came before the first defendant on the 8th July 2004 and on the next day he gave his decision granting leave to appeal. It is this decision that the plaintiff by notice of motion dated 20 September 2004 seeks from this Court, in exercise of its jurisdiction by way of judicial review, the following orders,

(1)	“By way of declaration that the conduct of the proceedings by the First Respondent constituted bias and favouritism, and thereby violating the Applicant’s right to a fair trial pursuant to Article 9(1) of the Constitution.

(2)	“By way of declaration that the First Respondent’s refusal to entertain the Plaintiff’s Motion seeking the disqualification of the Second Respondent and his refusal to accept written submissions violated section 85(2) of the Act and further constituted a miscarriage of justice and a violation of the Applicant’s right to a fair trial as aforesaid.

(3)	“By way of declaration that the First Respondent’s ruling granting leave to the Second Respondent to appeal the decision of the Court in ALC 5126, 5126 P1-P7 did not satisfy the requirements of section 79 and violated sections 2 and 76 of the Land and Titles Act 1981 (“the Act”), and therefore unlawful.

(4)	“By way of declaration that the First Respondent’s ruling:

(a)	giving the Second Respondent 21 days to file all grounds of appeal; and
(b)	giving the Plaintiff (and other parties) 21 days to reply thereto; and
(c)	giving the Second Respondent a further 10 days to file his further replies thereto;

violated section 88 of the Act and therefore unlawful.

(5)	“By way of declaration that the First Respondent’s ruling whereby the case was adjourned to the 21st of October 2004 for hearing violated sections 86, 40 and 41 of the Act and therefore unlawful.

(6)	“By way of costs."

Counsel for all parties before this Court did not question that the Supreme Court has jurisdiction for judicial review when, as in this case, it is alleged that there has been a violation of the plaintiff’s right to a fair trial pursuant to Article 9(1) of the Constitution of the Independent State of Samoa. I need go no further than to say that s.71 of the Land and Titles Act 1981 (“the Act) that decisions and orders of the Land and Titles Court are not reviewable by other Courts is overridden by Article 4 of the Constitution which provides remedies for enforcement of fundamental rights as follows:

4 (1)	“Any person may apply to the Supreme Court by appropriate proceedings to enforce the rights conferred under the provisions of this Part.”

(2)	“The Supreme Court shall have power 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.”

The plaintiff relies on this Article for the Supreme Court to secure him “the enjoyment of any of the fundamental rights conferred under Part II of the Constitution.” He claims that there has been a breach of his right to a fair hearing under Article 9(1). The relevant words are,

“9(1)	In the determination of his civil rights and obligations ……..every person is entitled to a fair…. hearing…. by an independent and impartial tribunal established under law.”

By Article 73(1) the Supreme Court shall have such original, appellate and revisional jurisdiction as may be provided by Act.

Mr Toleafoa submitted that revisional jurisdiction of the Supreme Court extended to decisions of the Land and Titles Court. But that ignores the words “as may be provided by Act.” No such revisional jurisdiction is provided for in the Land and Titles Act 1981. However, by s.31 of the Judicature Ordinance 1961 it is provided, s.31 the Supreme Court shall possess and exercise all the jurisdiction, power, and authority, which may be necessary to administer the laws of Samoa.

I turn to the law of Samoa under the Land and Titles Act 1981. By Part VIII of the Act the final decision of the Court shall be a majority decision (s.63(1)) and the final decision of the Court is subject to appeal under Part IX (s.63(3)). The right to appeal any final decision of the Court is under s.76 as follows:

“s.76	(1) Subject to subsection (2), any party to any proceedings may appeal against any final decision or order of the Court.”

“(2) There is no right of appeal against a decision or order made under section 49 or 50, or under sections 72(2) or 75.”

Then by s.78(1) “No appeal shall be lodged without the leave of the President.” It follows that in this case judicial review is not sought of a final decision of the Land and Titles Court but of an interlocutory decision of the President to grant leave to appeal. The question is whether the granting of leave to appeal determined any fundamental civil right of the applicant.

In the submissions of the Attorney General paragraph 5.13,

“The decision to grant leave to appeal to the 2nd Defendant’s party having been made, it is respectfully submitted that the decision does not breach the Plaintiff’s civil rights guaranteed under Article 9. First, the decision is not a final decision. Secondly, the decision relates to a matter which will facilitate the hearing of all substantial matters during the hearing of the appeal proper and does not affect any of the substantive matters in dispute between the Parties and before the Land and Titles court. Any matters in dispute of substance, as the First Defendant has deposed, can be dealt with appropriately in the Land and Titles Appeal Court….

In this context, it is respectfully submitted that no determination has been made by the 1st Defendant affecting the Plaintiff’s civil rights at the hearing of the interlocutory application and accordingly, no breach of Article 9(1) has occurred….

Furthermore, it is respectfully submitted that the Plaintiff has not in his pleadings shown that the hearing in question involved a determination of any of his civil rights and thus the current application should fail.”

I agree with these submissions but in case I am wrong I should deal with some other serious issues raised by the applicant.

In particular, I turn to the allegation that the application for leave to appeal was not heard in the words of Article 9(1) “by an independent and impartial tribunal.” He alleges that the first respondent’s conduct of the proceedings constituted bias and favouritism.

In his closing submissions Mr Malifa stressed that the “character and status of the President was not in question.” But in paragraphs 3 and 4 of the grounds in support of the allegation of bias it is said,

“That during the examination of the Second Respondent, the First Respondent was very keen to express his views/conclusions (which indicated bias) by making such remarks as:

•	“In my view, the decision was not proper.”

•	“You are seeking to have the matter referred back to the lower Court, don’t you think it would be better for the Appellate Division to make a final determination of the matter.”

•	“It seems that once Vui Viliamu stated in his oral testimony that Iiga Kalapu was not a true heir, then the Court should have adjourned proceedings in order for Iiga Kalapu to appear.”

“That the First Respondent’s bias was further evidenced by the fact that he was very accommodating of the Second Respondent’s views and hardly ever questioned the Second Respondent as to why he did not take part (ie. a party) in the lower Court proceedings, which was a crucial pre-condition to acquiring the right to appeal pursuant to section 76 of the Act.”

I have read the record of the hearing before the President and looking at it objectively I find absolutely no trace of bias, favouritism or accommodation for the Second Defendant’s views let alone anything which shows a real likelihood or even a reasonable apprehension or suspicion of bias. The passages quoted in ground (3) are such as any judge might say during the course of a hearing to raise with counsel matters which occur to or concern him and give counsel the opportunity to respond. Such statements are the very opposite of bias and are to be commended in the free exchange of comments between bench and bar in the interests of a fair hearing.

The plaintiff filed a motion with affidavit in support to have the second respondent disqualified, not being a “party” within s.2 of the Act which provides,

“Party” includes every person who takes part as claimant, objector, petitioner, respondent or applicant in any proceedings under this Act (other than as a witness) whether or not named as a party to any such proceedings, and, in any proceedings to appoint a matai, includes the pule and the proposed appointee."

The first respondent declined to deal with this motion which had been filed on the 5th July 2004 only three days before the hearing for leave to appeal and had not been brought to the prior notice of the first respondent. Further written submissions to those in support of the motion for judicial review were filed on the morning of the hearing by the applicant and a response by the second respondent. The record of the hearing shows that the first respondent dealt with these matters in accordance with established practice in these words,

“I would like to make it clear before we begin the consideration of this matter, this morning, that the Deputy Registrar gave me some new written information is said to have been from the Respondents, and are signed by Maiava Solomona Toailoa. There was therefore also a response given by the Appellants signed by Sua Rimoni.

Court procedure is that an appeal submission is made and is distributed to the other parties to see if they wish to respond/challenge the appeal submission and then an opportunity is given to the Appellants to lodge any further response/final reply to the responses/challenges lodged. What has happened though is that, that final step has concluded and yet another further step has been taken. Therefore, the Court would like to notify you that these last two sets of documents mentioned above are rejected/not accepted; the documents lodged earlier are sufficient for the purposes of this case; lest we change Court procedures and it lead to some other consequences down the line.

In his affidavit in response to the charges laid against him the first respondent deposed as follows,

“55 It was strongly asserted by the Plaintiff during the hearing of the leave to appeal proceedings that the Second Defendant is not a member of his family, is not an heir of the title Vui Umumalu, and was not a party in the lower court proceedings. The Plaintiff did not expressly challenge that the other members of the Appellant part of which the Second Defendant was the leader are not heirs of the title Vui Umumalu.

“56 It appeared to me right from the start of the hearing that the question of whether or not the Second Defendant was an heir would take up so much time at the hearing if allowed to be argued, because I expected that the Second Defendant would strongly oppose the strong assertions by the Plaintiff that he was not heir. I was of the view, even though it does not appear from the decision that I subsequently delivered, that it was not appropriate to come to a decision as to whether or not the Second Defendant was an heir of the title in question in proceedings for leave to appeal given the strong views expressed which would be expressed by the opposing sides.

“57 The question of whether or not a person is an heir of a matai title is a serious matter which normally involves the examination of genealogies. I did not consider that leave to appeal proceedings was the appropriate proceedings to make a final decision whether a person is or is not an heir of a matai title when there are conflicting opinions and contentions on the matter. Such an issue is normally decided in the lower Court or appellate Court. In fact, I doubt whether there is jurisdiction by the President sitting alone to hear leave to appeal proceedings to decide such an issue in the face of conflicting assertions and contentions. But even if the President has such jurisdiction, it would be unwise to make a decision on the issue in the face of strongly opposing and conflicting assertions because of the serious consequences that would ensue for the individual held not be an heir and his family. There is also serious doubt whether as a matter of law such a decision made by the President sitting alone in leave to appeal proceedings is subject to appeal in terms of the Land and Titles Act 1981 so that a person held not to be an heir in leave to appeal proceedings despite his opposition may not have a right of appeal.”

I cannot see that his not dealing with the motion in question was a denial of a fundamental civil right. Rather, the first respondent was at pains to protect the position of the applicant. The issue is alive and would be more appropriately dealt with in the Land and Titles Appeal Court. Furthermore there was no breach of s.85(2) as the parties were heard and made submissions.

A number of matters raised as grounds for Review are purely procedural and the decisions which do not determine any civil rights or obligations are well within the jurisdiction of the President under s.85(4) hearing an application for leave to appeal. The applicant has made much of the failure of the first respondent to give reasons for his decision. However, in the extracts he quoted from Wade and Forsyth Administrative Law (8th Edition) it is said, at p516,

“The principles of natural justice do not as yet, include any general rule that reasons should be given for decisions.”

And it is further said at p520 with regard to a general rule it would be,

“subject only to specific exceptions to be identified as cases arise.”

In Baker v Public Service Appeal Board [1982] 2 NZLR 437 I recognised that it was desirable for reasons to be given, and that in some cases the failure to give reasons may cause the Court to intervene because the Appeal Board could not then be seen to have been acting within its jurisdiction. Although the giving of reasons for decisions of administrative tribunals may be an essential element of administrative justice, I would not apply that to every decision made on an interlocutory application for leave to appeal. In my experience, reasons are commonly not given when leave is granted to appeal. Obviously the Judge is satisfied that the required grounds for leave to appeal have been made out. It may be significant that whereas the Act requires reasons for every decision on a petition (s.66) no such requirement for reasons is found in the Act in respect of decisions on applications for leave to appeal. In the circumstances of this case the fact that reasons were not given does not amount to a breach of the applicant’s right to a fair hearing.

In conclusion, it is clear from the record of the hearing that the first respondent was concerned that some substantial wrong or miscarriage of justice had occurred. The following passage sums that up.

“Q. What is your party’s view/opinion, a written statement was made, Vui Viliamu and Iiga Kalapu noth signed, there is nothing in it that says that Iiga Kalapu is adopted, and then when the case was heard and iiga Kalapu was not present then Vui said he was an adopted heir, could it be said that Vui Viliamu changed the statement without the old man being present, the difficulty is that Iiga was unable to answer, and then the decision came and his daughter was declared to be a true heir. Was there not a hint of betrayal in the fact that the words spoken different from the written statement?”

The last question is rhetorical and no satisfactory explanation was given. The decision of the first respondent was in accordance with what he considered to be fair and just between the parties (s.37(2)).

All in all, the motion for judicial review on the grounds stated has not been made out and it is dismissed. The applicant did not proceed on his statement of claim and it was struck out.

On the question of costs, they should follow the event so that both respondents are entitled to costs against the applicant. If the parties cannot agree, they may make written submissions for the Court to settle the issue.

BISSON J
Solicitors:
Sogi Law for the Applicant
Attorney General’s Office for the First Respondent
Drake & Co. Law Firm for the Second Respondent