SUPREME COURT OF SAMOA
Tuitolovaa Siaso v Appellate of the Land and Titles Court [2013] WSSC 21

Case name: Tuitolovaa Siaso v Appellate of the Land and Titles Court
Citation: [2013] WSSC 21
Decision date: 9 May 2013
Parties: 
AGAFILI LAAU TUITOLOVAA, NOATAUTALAMAAITU TUITOLOVAA SIASO and others of Salailua, Savaii (Applicants) and APPELLATE DIVISION OF THE LAND AND TITLES COURT constituted under section 77 of the Land and Titles Act 1981 (First Respondent),  AGAFILI IOANE, LEILUA TALENI, ALOFA KOFE, FIAPAIPAI KOFE, and others of Salailua, Savaii (Second Respondents), LEULUAIALII PERIVE, MAIAVA TITI LEULUAIALII, MAIAVA SOPO LEULUAIALII, LETAULAU LEULUAIALII LUATUA, of Salailua, Savaii (Third Respondents) and LEULUAIALII LELEI, LEULUAIALII SIKUEA, MATAPULA TOMASI MATAPULA, and others of Salailua, Savaii
Hearing date(s): 16 January 2013
File number(s): 
Jurisdiction: Civil
Place of delivery: Mulinuu
Judge(s): Justice Vaai
On appeal from:
Order:
Representation: 
TRS Toailoa for applicants
K Seuseu and A Iati for first respondent
Catchwords: 
Words and phrases:
Actual bias and perceived bias
Legislation cited:
Land and Titles Act 1981
High Court of Australia
English House of Lords
English Extradition Act 1989
Supreme Court  Civil Procedure Rules
Cases cited:
Webb v The Queen 181 CLR 41, at 74
R v Bow Street Metropolitan Stipendiary Magistrate and Others EX parte Pinochet Ugarte (No2) (1999) WLR 272
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: MISC 178/12

BETWEEN:
AGAFILI LAAU TUITOLOVAA, NOATAUTALAMAAITU TUITOLOVAA SIASO and others of Salailua, Savaii

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:

AGAFILI IOANE, LEILUA TALENI, ALOFA KOFE, FIAPAIPAI KOFE and others of Salailua, Savaii

Second Respondents

A  N  D:

LEULUAIALII PERIVE, MAIAVA TITI LEULUAIALII, MAIAVA SOPO LEULUAILII, LETAULAU LEULUAIALII LUATUA of Salailua, Savaii

Third Respondents

A  N  D:

LEULUAIALII LELEI, LEULUAIALII SIKUEA, MATAPULA TOMASI MATAPULA and others of Salailua, Savaii

Counsel:
TRS Toailoa for applicants
K Seuseu and A Iati for first respondent

Decision: 9 May 2013

DECISION OF THE COURT

1.	By Notice of Motion for Judicial Review dated the 13th February 2012 the applicants seek orders to:
(a)	quash and/ or set aside, and or deemed void the decision of the First Respondent; dated the 8th April 2011; and 
(b)	that the appeal be reheard by a differently constituted bench.
2.	The grounds of the motion are that the decision violates the applicants’ right to a fair trial by an independent and impartial tribunal guaranteed by Article 9 of the Constitution.  It is alleged that the President and the two judges who presided had family connections to the second third and fourth respondents and should therefore have recused themselves.  As a consequence of their failure to recuse there was actual or perceived bias on their part in favour of the second and third and fourth respondents.
3.	At the time of the hearing of the Appeal the connections of the three judges to the second, third and fourth respondents were not fully known to the applicants, otherwise they would have objected to the bench.
The First Respondent 
4.	The first respondent is the Appellate Division of the Land and Titles Court which determines appeals from the Lands and Title Court (lower court) and consists of the President and two judges of the Court appointed by the President to hear the appeal.
5.	The appeal hearing in 2011, the subject of this application for judicial review, concerned three appeals against the decision of the lower court which granted to the present applicant ownership (pule) of certain customary land in the village of Salailua.  In allowing the appeals the First Respondent reversed the decision of the lower court thus depriving the applicant the ownership of the land granted by the lower court.
6.	Three affidavits were filed alleging that the three judges which presided in the 2011 appeal hearing have family connections to the successful appellants, the second and third respondents in these proceedings.  A statement of claim was not filed to comply with rule 196 (1) Supreme Court (Civil Procedure) Rules but the non-compliance was not objected to by the Respondents and secondly the non-compliance is not fatal to the application.
7.	Each of the three judges has filed affidavits in response to the allegations leveled against them and in support of the Strike Out application. 
Second, Third and Fourth Respondents
8.	The second and third respondents were two of the appellants in the 2011 appeal hearing.  The third appellant to whom the president is alleged to be connected is not cited as a party, while the fourth Respondent, although cited as a party, no allegations are leveled against it. 
Allegations against the President
9.	It is alleged that the President is related to the Third appellants in the 2011 appeal hearing through the person named Komisi who held the title Fu’e from the President’s family at Saoluafata village where the President resides.  Komisi also held the title Savaiinaea from the family of the Third Respondents at the village of Salailua.
10.	Komisi, as the President deposed in his affidavit, was the first cousin of the President’s grandmother.  Komisi was adopted by a lady from Salailua named Tatupu who had a brother called Tuiatua Siaki Filo (Filo).  Filo’s grandson Tuiatua Leuluaialii, was the leader for the third appellants in the 2011 appeal hearing; the other grandson Seinafo Ioane was the leader for the same party in the 2005 lower court hearing.
11.	In response to the allegation the President in his affidavit confirmed Komisi held the title Fu’e from the President’s family at Saoluafata.  He also deposed that since Komisi’s children were not part of the proceedings in 2011 appeal hearing, and because he was not connected to Komisi’s adoptive family, there was no need for him to disclose any connection to Komisi.
12.	The second allegation leveled against the President was that because of his close connection to Komisi, the decision of the Court was influenced or based on an essay written by Komisi’s grandson during his final year at the Methodist Theological College.
Allegation against Judge Vaaelua
13.	Alofa Kofe (Alofa) the third-named Second Respondent was a witness in the 2005 lower court hearing and a witness for the same party in the 2011 appeal hearing.  Alofa was married to Kofe (deceased) who was the brother of the late Tuiletufuga of Apia.  Tuiletufuga was the father of judge Vaaelua’s wife, Penina, who also passed away in 2002.
14.	Judge Vaaelua concedes his connection to Alofa but he deposed at paragraph 9 of his affidavit:
“That, despite the family connection through my first deceased wife, there is no blood connection between myself and Alofa and Fa’apaipai.  I did not disclose the connection because I was not made aware of the list of witnesses until the date of hearing.”
Fa’apaipai who was also a witness for the first appellants in the 2011 hearing, is the daughter of Alofa.
15.	Judge Vaaelua also deposed that he had not maintained a relationship with his deceased wife’s family since her death in 2002.
Allegation against Judge Taua’aletoa
16.	Allegation against Judge Taua’aletoa is two-fold.  The first is that the judge is related to one Pasui Leota Tapunuu (Tapunuu) as they are both heirs of the title Taua’aletoa of Faleapuna.  Tapunuu’s wife, Letaulau the last named third respondent was a witness for the second Third Respondent in the 2011 hearing. 
17.	The second alleges that the judge’s niece, Palasia, is married to the grandson of one Maeata’anoa who is alleged to be a family member of Tapunuu referred to in paragraph 16.
18.	Judge Taua’aletoa concedes that he is connected to Tapunu’u through the title Taua’aletoa, but otherwise they are not closely related as they are from different lineages and therefore do not share the same cultural obligations and responsibilities to the title.
19.	He also concedes that his niece Palasia is married to the grandson of Maeata’anoa whom so far as the judge understood is a relative of Tapunu’u.  In any event Palasia had no connection to the 2011 appeal hearing and the judge was not aware that Letaulau: 
“was the second appellant to the 2011 appeal matter and a witness for that matter prior to the hearing.”
The Strike Out Motion
20.	The First Respondent has moved to strike out the motion for judicial review in its entirety or in part pursuant to the inherent jurisdiction of the court upon the grounds, firstly, that the motion is frivolous, vexatious and an abuse of court process because:
(a)	the decision did not violate the Applicant’s right to a fair trial as it was made by an independent and impartial tribunal; and
(b)	the three affidavits in support of the motion do not disclose clear, direct or blood relationships between the second, and the third respondents named in the motion to any of the three judges, and 
(c)	the applicants did not at any point before or during the hearing of the appeal raise any of the allegations against any of the three judges and the applicants have therefore waived the right to raise an objection of bias.
21.	Alternatively the First Respondent contended that if this Court finds that the alleged connection between the three judges and the parties are true, such connection however are too remote to have resulted in any actual or perceived bias on their part in favour of the second, third and fourth respondents.
Discussion
22.	As this is a strike out application, it must be assumed that the facts pleaded and relied on by the applicant are capable of proof.  In the absence of a statement of claim the facts relied upon are asserted in the three affidavits supporting the motion for judicial review.  Indeed the three judges in their affidavits do not deny their connections to the litigants alleged by the applicant, which follows that the contention by counsel for the first respondent that the connection of the three judges to the litigants as alleged by the applicants tantamount to speculations has no substance.
23.	In respect of the allegations leveled at the President, the President acknowledged he is related to Komisi through the title Fu’e from Saoluafata.  He also deposed that Komisi’s children were not parties to the 2011, an indication that he knows Komisi’s children, which indicates that there is currently a cultural connection between the family of the President at Saoluafata and the adoptive family of Komisi at Salailua through the titles Su’e and Savaiinaea held by Komisi. 
24.	In respect of the other two judges, they knew or ought to have known through their preparations for the 2011 Appeal hearing that the particular litigants they are connected to were witnesses for the second and third respondents both in the lower court hearing in 2005 and in the 2010 leave to Appeal hearing.  In the case of Judge Va’aelua, the litigant Alofa Kofe was one of the signatories in the application seeking leave to appeal filed by the Second Respondent.
25.	Surprisingly neither of the two judges disclosed their connections when those particular litigants were about to be sworn in and did in fact took the oaths together with their respective parties at the 2011 appeal hearing, so that whilst the two judges and the particular litigants knew of their connections, the applicant did not.  However the two judges contended in their sworn affidavits that it was unnecessary to disclose their connections as they were not related by blood.
26.	In my view the connections of the three judges to the particular litigants cannot be determined to be too remote as contended by counsel for the First Respondent simply because the association or relationship between the parties is not by blood.  The application for judicial review is premised on both actual bias and perceived bias, so that even if none of the judges was actually motivated by any bias, it is also submitted in the alternative that because of the nature of their connections with other persons related to the litigants, the judges judicial independence may have been affected by an unconscious bias in favour of those other persons, and through them, of the litigants. 
27.	It is fallacious for the First Respondent to maintain that there was no need for the three judges to recuse themselves or to disclose their connections because their links to the litigants or other persons related to the litigants were not by blood, and were therefore very distant.  As Dean J expressed in the decision of the High Court of Australia in Webb v The Queen 181 CLR 41, at 74:
“The area covered by the doctrine of disqualification by reason of the appearance of bias encompasses at least four distinct, though sometimes overlapping and main categories of case.  The first is disqualification by interest, that is to say, cases where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or prejudgment.  The second is disqualification by conduct, including published statements ….. .   The third category is disqualification by association.  It will often overlap with the first and consists of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in the proceedings.  The fourth is disqualification by extraneous information.  It will often overlap with the third …. .
28.	A good example of disqualification by association is illustrated in the judgment of the English House of Lords in R v Bow Street Metropolitan Stipendiary Magistrate and Others EX parte Pinochet Ugarte (No2) (1999) WLR 272 which dealt with the arrest of  Pinochet, the notorious former Head of State of Chile who was while on a visit to England arrested under warrants issued pursuant to the relevant provisions of the English Extradition Act 1989 following receipt of international warrants of arrest issued by a Spanish Court alleging various crimes against humanity including torture and murder committed while he was in office.  The Divisional Court quashed the warrants and on appeal to the House of Lords, Amnesty International which had campaigned against Pinochet obtained leave to intervene in the appeal.  The House of Lords by a majority of three to two, allowed the appeal (Pinochet No 1) and restored the warrants.
28.1   Pinochet’s legal advisers subsequently discovered that one of the law lords in the majority was, although not a member of Amnesty International, an unpaid director and chairman of A I C Ltd, a charity which was wholly controlled by Amnesty International.  One of the objects of A I C Ltd was to procure the abolition of torture, extra-judicial execution and disappearance.  Pinochet petitioned the House of Lords to set aside its previous decision in Pinochet No 1 on the ground of apparent bias on the part of the law lord associated with AIC Ltd.
28.2  In granting the petition the House of Lords stated that the fundamental principle that a man may not be a judge in his own cause was not limited to the automatic disqualification of a judge who had a pecuniary interest in the outcome of a case but was equally applicable if the judge’s decision would lead to the promotion of a cause in which he was involved together with one of the parties.
29.	Counsel for the First Respondent further submitted that having regard to all the relevant details and circumstances, and applying the real likelihood of danger test, the court cannot come to the conclusion that the links between the judges and the particular persons were such that they cannot give the appearance that the judges might have biased against the applicant.
30.	It must be remembered this is a strike out application, based on the grounds that the applicant’s allegations are frivolous, vexatious and an abuse of process.  The application of the true test for perceived bias is a question properly to be left to be considered at the substantive hearing.  Suffice to say that the applicant has identified and satisfied the first step of the inquiry namely the allegation which it said might have led the three judges to decide the appeal other than on its merits.  If I were the entertain the submission of counsel for the First Respondent and I apply the proper test at this stage and determine that there was either actual or perceived bias then there is no legal issue left for the substantive hearing to determine.
Waiver
31.	Counsel for the First Respondent also contended that the applicant:
“has waived his right to raise an objection to the judges and it is an abuse of process to cry foul at this late stage” (paragraph 65).
32.	The submission is based the affidavit of the President who upon the granting of the leave to appeal in 2010 also read out the names of the judges who will preside on the hearing of the appeal and that any party who object to any of the allocated judges must do so at least 14 days before the appeal hearing.  No objection was lodged by the applicant.
33.	If the judges had disclosed their connections to the second and third Respondents and the applicants remained silent or acquiesced by not objecting, the argument by the First Respondent that the applicant waived his rights has merit.  As already pointed out above the applicant was ignorant of the connections at the time of the appeal hearing.  He could not be deemed to have waived his right.
34.	The applicant accordingly did not waive his right to object.
Result
1.	The Strike Out application is dismissed.
2.	Costs are reserved.
JUSTICE VAAI