IN THE SUPREME COURT OF SAMOA
Tapusalaia Esekia v Appellate Division of the Land and Titles Court v Nonu Lani [2016] WSSC 141
Case name: 	Tapusalaia Esekia v Appellate Division of the Land and Titles Court v Nonu Lani	
		
Citation: 	[2016] WSSC 141	
		
Decision date: 	4th August 2016	
		
Parties: 	TAPUSALAIA LAUTOGIA TUUU ESEKIA, IULIA FAIGA, and others of Siumu (Applicant) APPELLATE DIVISION OF THE LAND AND TITLES COURT, established under the Lands and Titles Act 1981 (First respondent) MANO NONU LANI, LEIATAUALESA KATIFA, TUUU FALETOESE BRYCE and others of Siumu (Second respondent). 	
		
Hearing date(s): 		
		
File number(s): 	Misc157/16	
		
Jurisdiction: 	Civil	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	JUSTICE VAAI	
		
On appeal from:		
		
Order:	(i)	The motion for judicial review is struck out.
(ii)	Each party to pay its own costs.	
		
Representation: 	S Ponifasio for Applicant
S Ainuu for First Respondent	
		
Catchwords: 	Land disputes - familial connection – impartial tribunal	
		
Words and phrases:		
		
Legislation cited:		
		
Cases cited:	Locabail (UK) Ltd v Bayfield Properties Ltd (2000) QB 431 at 475
R v Bow Street Magistrate ex parte Pinochet (No 2) (2000) 1 AC 119
Penaia v Land and Titles Court (2012) WSCA 6

Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

Misc157/16

BETWEEN:

	TAPUSALAIA LAUTOGIA TUUU ESEKIA, IULIA FAIGA, and others of Siumu
Applicant

AND:

	APPELLATE DIVISION OF THE LAND AND TITLES COURT, established under the Lands and Titles Act 1981.
First Respondent

AND:

	MANO NONU LANI, LEIATAUALESA KATIFA, TUUU FALETOESE BRYCE and others of Siumu
Second Respondents

Counsel:	
S Ponifasio for Applicant
S Ainuu for First Respondent

Ruling:	21st July 2016

Reasons:		4th August 2016

JUDGMENT OF THE COURT
Introduction
1.	In April 2013 the Land and Titles Court gave judgment on the pule (authority) over land at Siumu.  That decision was appealed by the applicant.  One of the grounds of appeal was that the Vice President who had close familial connection to the successful party should have recused himself, but as he did not, there was therefore an appearance of bias.
2.	The leave to appeal was not heard until the 13th May 2015, a period of more than 2 years after the judgment of the lower court.  On the 20th May 2015 the President of the Land and Titles Court denied the leave to appeal application.  One the issue of bias, the President determined the Vice President did advise parties of his familial connection and the applicant did waive his right to complain and allowed the Vice-President to preside.
Application for Judicial Review
3.	The applicant seeks order to set aside and quash the leave to appeal ruling by the President and to rehear the leave to appeal application on the grounds:
(i)	the President failed to give due consideration to the earlier voluntary disqualification by the Vice President prior to the 2013 hearing, and failed to give due consideration to the objection by the applicant; and
(ii)	the applicant’s right guaranteed under article 9 of the Constitution to a fair hearing by an independent and impartial tribunal has been breached.
Background
4.	The dispute over Siumu land was listed for hearing in the Land and Titles Court on the 15th December 2008 before Vice President Fuimaono, two judges and one assessor.  But the Vice President had familial connection to two of the parties.  The first was a lady of his family was the wife of the leader of one of the parties.  The second was that the Vice President was residing together at the village of Leufisa with the brother and children of one of the member of the other party.  It was then adjourned to the 11th February 2009 for hearing before a different Vice President as Fuimaono voluntarily disqualified himself due to familial connection.
5.	It was not until the 8th April 2013, a Monday, that the matter was again listed for hearing before the same Vice President Fuimaono and a different panel of judges and assessor.  As the leader of one of the parties was not present it was indicated by the bench that the hearing be adjourned to the following Monday 15th April 2013, and will proceed on that day regardless whether the other party attends.  At that point the applicant objected to the Vice-President and reminding him of his voluntary disqualification in 2009.
6.	In response the Vice President said the hearing will again be adjourned for another Vice President to preside.  One of the party leader then voiced concern about the years of delay.
7.	In reply the Vice President said (my translation)
	“As I am objected to by Tapusalaia (applicant) the only ruling to make is to adjourn your matter to another date for another Vice President to hear.  The truth is the lady of my family living with Mano is the daughter of Toelupe, she is not my sister, that is the thing you should understand, and no family business is done in court, we have sworn our oath to God, but I accept the wishes of Tapusalaia.  I do not alone make the decision but I sympathise for you as your matter has dragged on.”
8.	At that moment the applicant addressed the Court:
	“Ia ua uma se manatu, ua ou malie o le a e faia le matou mataupu, fa’afetai lava, ae ia faia le amiotonu.”
	(I rest my concern, I agree to you handling our case, thank you, but do the honest thing).
9.	The hearing was then adjourned to the following Monday 15th for hearing.
Undisputed Facts 
10.	It is common knowledge that Vice President Fuimaono did voluntarily disqualified and recused himself on the 15th December 2008.
11.	Other than Fuimaono there were four other Vice Presidents in April 2013.  In December 2013 Fuimaono retired and his replacement was immediately appointed.
Judicial Notice
12.	I take judicial notice of the following:
(i)	Each judge of the Land and Titles Court is given his or her roster sheet every Friday (or Thursday if Friday is a holiday) for the forthcoming week.
(ii)	The roster sheet allocates the composition of each bench and the cases for their determination.
(iii)	 Copies of the petitions, history of each case and other documents relevant to each case are also included.
13.	On Friday the 5th April 2013, Vice President Fuimaono would have been notified through his roster sheet and relevant documents that the Court case involving the Siumu land in which he disqualified himself in 2008 was set down for hearing before him and his bench on Monday the 8th April 2013.
Affidavit of the Applicant in support of Motion for Judicial Review
14.	In paragraphs 1 to 8 of his supporting affidavit the applicant retraced the history of the court proceedings to the time of the substantive hearing in April 2013.  At the hearing date he was already on dialysis treatment he was worried that he may not live long enough to have his day in court and he was extremely concerned that it has taken 10 years since he filed his petition before it was finally heard in 2013.
15.	In relation to the leave to Appeal hearing he deposed that he voiced the familial connection of the Vice President and his voluntary disqualification.  He also voiced evidential matters which demonstrated that the familial connections of the Vice President influenced his determination of the evidence in favour of the party he was connected to.
Strike Out Application 
16.	Counsels in their written submissions are in agreement that the decision of the President in refusing the leave to appeal is final and not reviewable by this Court unless there was a violation of article 9 of the Constitution.
17.	The first respondent’s principal ground to strike out is that the applicant waived his right to object to the Vice President presiding on the 8th April  2013 and he is therefore estopped from raising that argument.
Submissions by the Applicant
18.	At paragraph 3.4 of her written submissions counsel for the applicant contended:
	“The key issue in this proceeding is whether the first applicant’s consent to Vice President Fuimaono Nonu presiding in the first proceeding, amounted to a waiver”
19.	It is contended that the consent or agreement by the applicant on the 8th April 2013 for the Vice President to preside did not amount in law to a waiver.  Counsel submitted that the so called waiver by the applicant was not clear and was not unequivocal.  It was also made without full knowledge of all the facts relevant to his decision whether to waive or not.
20.	Counsel said there was a condition imposed by the applicant when he gave his consent for the Vice President to preside.  And because there was a condition imposed, counsel said it cannot be said that the agreement was clear and unequivocal.  The condition upon which the agreement was given was that the Vice President should conduct the hearing with just and fairness (paragraph 3.9 of submissions).  The condition it was submitted was not met because of the Vice President’s close familial connection.
21.	It was also submitted that the familial connection was a lot closer than the one disclosed by the Vice President.  And having recused himself in 2008, the efforts of the Vice President in 2013 to water down the familial connection as insignificant and his obvious insistence to preside could only be viewed as attempts by him to influence the outcome of the hearing.
22.	Counsel also contended that the decision by the applicant was not voluntary, he was pressured to go ahead with the trial after a lengthy adjournment of more than four years and he was not given time to consider his decision.  The essence of the argument is that the hearing scheduled for the 8th April 2013 would be given another lengthy adjournment if the applicant maintained his objection against the Vice President.  He was accordingly pressured to agree to enable the hearing to proceed.
Discussion
23.	Other than contending that the Vice President did disqualify himself in 2008 and the applicant on the 8th April 2013 did waive his right and allowed the same Vice President to preside, counsel for the first respondent did not address the voluntary disqualification in 2008 and the conduct of Vice President in April 2013.  The reason was plainly obvious.  The conduct of the Vice President in April 2013 was plainly unprofessional, shameful and contrary to the judicial oath.
24.	Two reasons were given by him for his voluntary disqualification in 2008.  He obviously considered his close familiar connection before he advised the parties of his ruling to disqualify and the reasons for doing so.
25.	When the Vice President was on Friday 5th April 2013 given his schedule of court hearings for the week commencing Monday the 8th April 2013, he should have made arrangements, as was the practice, to swap file with another vice president.  He obviously did not.  When confronted by the applicant about his disqualification in 2008  his blunt answer was a further adjournment.  After a delay of more than 4 years the litigants were now confronted with a further delay.  He told the litigants: (my translation)
	.... since I am objected to by Tapusalaia (the applicant) the only ruling on your matter is to adjourn until another vice president is available.”
He then, as counsel for the applicant correctly submitted, watered-down his familiar connection with the wife of the leader of one party. He ignored and made no reference to his second ground for disqualification.  
26.	The message was blunt and clear; there will be another lengthy adjournment if Vice President Fuimaono will not preside.  The applicant was pressured into agreeing to waive his objection.  It was not a voluntary waiver; it was extracted by a false and misleading statement from the bench.  There were other vice presidents available.   A waiver must be clear and unequivocal, and made with full knowledge of all the facts relevant to the decision whether to waive or not:  Locabail (UK) Ltd v Bayfield Properties Ltd (2000) QB 431 at 475.  And in R v Bow Street Magistrate ex parte Pinochet (No 2) (2000) 1 AC 119 Lord Browne-Wilkinson at 137 said the basic principle is that the person who is said to have waived has acted freely and in full knowledge of the facts.
27.	The applicant’s so called waiver was not voluntary, not informed and not unequivocal.  It was not a waiver.
28.	But the application for judicial review is not challenging the court hearing of April 2013.  Instead of challenging the 2013 decision by judicial review, alleging breach of Article 9 of the Constitution, the applicant instead issued the challenge by way of Appeal to the Appellate division of the Land and Titles Court.  The denial of the leave to appeal by the President of the Land and Titles Court in May 2015 is the subject of the challenge by judicial review.
29.	The challenged leave to Appeal hearing is alleged by the applicant to be in breach of Article 9 on the basis that the President failed to consider and give due and necessary attention to the conduct of the Vice-President, and the failure to do so amounted to unfair treatment of the applicant.
30.	It is not denied by the applicant that the President did consider the issue of disqualification and waiver in the leave to appeal hearing.  What is contended is that the leave to appeal application should have been granted not only on the merits but also on the issue of bias of the Vice President.
31.	For this court to investigate the issue contended by the applicant would involve this court in the examination of the jurisdiction of the Land and Titles Court which is prohibited by the ouster provisions of the Land and Titles Act 1981.  See Penaia v Land and Titles Court (2012) WSCA 6.  This court may disagree with the conclusions of the President which led to the denial of the leave to appeal application but as was pointed out in Penaia v Land and Titles Court that is the consequence of the ouster provisions in the Land and Titles Act 1981.
Result 
(i)	The motion for judicial review is struck out.
(ii)	Each party to pay its own costs.

JUSTICE VAAI