SUPREME COURT OF SAMOA
Eletise v Lutuiloa & Ors [2017] WSSC 155
Case name: 	Eletise v Lutuiloa & Ors	
		
Citation: 	[2017] WSSC 155	
		
Decision date: 	4 July 2017	
		
Parties: 	OKEAMOA ELETISE of Auckland New Zealand
and TIUMALU LUISA LUTUILOA, TAU LUTUILOA, FE’I LUTUILOA, TUNUFAI MANO, MALETA LUTUILOA, TOMASI TUPUOLA, KALAU OKEAMOA, EMA SEI and FILI MANO of Siumu Samoa 	
		
Hearing date(s): 		
		
File number(s): 		
		
Jurisdiction: 	CIVIL	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Leiataualesa Daryl Michael Clarke	
		
On appeal from:		
		
Order:	-	I declare a mistrial in these proceedings for the reasons I have set out. 
-	Counsels have 14 days to agree on costs, failing which, parties may file a Memorandum as to Costs for determination by the Court. After I have determined costs, I will refer the matter to the civil list for re-mention to set a new hearing date.	
		
Representation: 	A Su’a for the Plaintiff
T Tiotio for the Respondents	
		
Catchwords: 	Mistrial, failing, agree on costs.	
		
Words and phrases:	strike out motion	
		
Legislation cited:	Supreme Court (Civil Procedure) Rules 1980, 	
		
Cases cited:	Ridge v Baldwin [1964] AC 40 Lord Hodson, Dagnayasi v Minister of Immigration [1980] 2 NZLR 130, 141, per Cooke J, Ponifasio v Council of Samoa Law Society [2013] WSSC 11 (8 April 2013), His Honour Sapolu CJ 

	
		
Summary of decision:		

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

OKEAMOA ELETISE of Auckland New Zealand
Plaintiff

AND:

TIUMALU LUISA LUTUILOA, TAU LUTUILOA, FE’I LUTUILOA, TUNUFAI MANO, MALETA LUTUILOA, TOMASI TUPUOLA, KALAU OKEAMOA, EMA SEI and FILI MANO of Siumu Samoa
Defendants

Counsel:	
A Su’a for the Plaintiff
T Tiotio for the Respondents

RULING OF CLARKE J (MISTRIAL)
The Proceedings:
1.	By Statement of Claim dated 9th December 2015, the plaintiff brought these proceedings against the defendants alleging that the defendants willfully demolished and removed the plaintiff’s house at Siumu. The plaintiff pleads her cause of action against the defendants in conversion and seeks damages amounting to $218,860.00 against the defendants.
2.	Originally, the firm acting for the defendants filed a strike out motion dated 8th February 2016 on behalf of the first named defendant only. On the 30th March 2016, that motion was withdrawn by leave. On the 18th April 2016, a Statement of Defence was signed by Mr Brunt as “Counsel for the Defendants”. The words “First Named” was deleted and the letter “s” was added after the word “Defendant”. The same amendment was made to the copy of the Statement of Defence served on plaintiff’s counsel. The Statement of Defence was also drafted in the plural and concludes:
“WHEREFORE the defendants prays:-“
3.	After closure of the plaintiff’s case and at the end of the evidence of the first named defendant, Mr Tiotio advised the Court he acted for the first named defendant only. The question for determination is whether a mistrial should be declared.
The Hearing:
4.	The hearing proceeded on the 19th June 2017. By way of appearance, Mr Tiotio appeared as counsel for the ‘defendant’. Soon after the commencement of the plaintiff’s evidence, Mr Tiotio was asked why his clients were not present for the plaintiff’s evidence:
“HH:	before you continue Mr Su’a, Mr Tiotio where are your clients? 
Tiotio	your Honour I believe they are outside
HH	because they are party they are named party they are entitled to be in the Court room 
Reg	sei valaau atu Tiumalu ma le latou itu e susu mai o lea ua amata le faamasinoga
HH		is there any reason why they are outside?
Tiotio	your Honour I take that they are awaiting to be called
HH	yes but if there’s a claim made against them they are entitle to hear the case against them 
Tiotio	I apologize your Honour.”
5.	During the course of the plaintiff’s evidence, counsel should also have been alerted to the Court’s understanding that he acted for all defendants.
“HH	ok what is the situation Mr Tiotio is that in dispute or not? Do your clients concede that in which case then I will hear from Mr Su’a and I’ll hear from you whether I should admit the hearsay evidence or not? 
Tiotio	yes they pulled down the house.
HH	alright any objections counsel for the defendants if this is tender as exhibit P1 or not?
Tiotio	no your Honour.
…
HH	I know you have objections but you have to tell me why you object so Mr Su’a can respond and then I can rule
Tiotio	thank you your Honour I see it will affect justice on this matter by admitting the hearsay evidence 
HH	yes I know that I’ve made the point it is hearsay but you’ve got to tell me why it should not go in. you need to argue the case for your clients 
Tiotio	it will affect the credibility of my clients argument in Court when she 
HH		what is that?
Tiotio	that costs and the estimate they are given.
…
HH		Mr Tiotio are you calling any witnesses?
Tiotio	yes your Honour may I call upon the defendant to give evidence
HH		which one?
Tiotio	I’d like to call on the first name defendant 
HH		that’s alright Tiumalu Luisa.”
6.	After the evidence of the first named defendant, defence counsel then closed his case advising the Court that he acted for only the first named defendant. The exchange between the Court and defence counsel then proceeded as follows:
“Tiotio	Your Honour, I had a discussion with Mr Brunt who also recalled that we were only acting for the first name defendant.
HH		But what does it say on the statement of defence? 
Tiotio	I can see in the statement that all the defendants are included.
HH		But what does it tell you? Is that Mr Brunt’s signature?
Tiotio	Yes I can verify your Honour that that’s Mr Brunt.
HH		What does it say?
Tiotio	So it says that all these defendants are in this list.
HH	And are represented by the firm with which you are employed?
Tiotio	Yes.”
The law and a fair hearing:
7.	The Constitution of the Independent State of Samoa is the supreme law of Samoa (article 2(1)). Part II of the Constitution creates and protects certain fundamental rights.  Article 4 relevantly provides that “Any persons may apply to the Supreme Court by appropriate proceedings to enforce the rights conferred by the Constitution” (article.4(1)). Article 4(2) then gives to the Supreme Court the “...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 by the Constitution.”
8.	Article 9(1) of Part II of the Constitution provides:
“9. Right to a fair trial - (1) In the determination of his or her civil rights and obligations or of any charge against him or her for any offence, every person is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established under the law…”
9.	The right to a fair hearing involves, amongst other considerations, both procedural fairness and the observations of the rules of natural justice. In Ponifasio v Council of Samoa Law Society [2013] WSSC 11 (8 April 2013), His Honour Sapolu CJ dealt with procedural fairness and natural justice and said as follows:
“14.	It is generally accepted that there is an inter-connection between the concept of procedural fairness and the concept of natural justice so that the two concepts are often treated as synonymous. In Judicial Review of Administrative Action (1995) 5th ed by de Smith, Woolf and Jowell, para 7-007, the learned authors state that the expression ‘natural justice’ is the source from which procedural fairness flows.

15.	In Furnell v Whangarei High Schools Board [1973] AC 660 which was an appeal from New Zealand to the Privy Council, Lord Morris of Borth–y– Gest, in delivering the judgment of the majority, stated at p.679:
“Natural justice is but fairness writ large and juridically. It has been described as ‘fair play in action’
16.	In Constitutional and Administrative Law in New Zealand (2001) 2nd ed by PA Joseph, the learned author states at para 23.1, p.848:
“Natural justice’ is but fairness writ large and juridically: Furnell v Whangarei Schools Board [1973] 2 NZLR 705, 708. The duty to act fairly (or simply ‘fairness’) may substitute as a reference to natural justice: Dagnayasi v Minister of Immigration [1980] 2 NZLR 130, 141, per Cooke J. They are alternative descriptions for a single but flexible doctrine whose content may vary according to the nature of the public power and the circumstances of its use”
...
17.	Natural justice consists of two fundamental principles. The first principle is that no man should be condemned without being given notice and the opportunity to be heard. This is embodied in the maxim audi alteram partem. The second principle is that no man should be a judge in his own cause. This is embodied in the maxim nemo judex in causa sua. The first principle is sometimes referred to as the fair hearing rule and the second principle is sometimes referred to as the rule against bias.

18.	In Judicial Review of Administrative Action (1995) 5th ed by de Smith, Woolf and Jowell, the learned authors state at para 7-008, p.379:
“[Natural justice] became identified with the two constituents of a fair hearing; (a) that the parties should be given a proper opportunity to be heard and should be given due notice of the hearing (audi alteram partem) and (b) that a person adjudicating would be disinterested and unbiased (nemo judex in causa sua).
19.	In Constitutional and Administrative Law in New Zealand (2001) 2nd ed by PA Joseph, the learned author states at para 23.1, p.848:
“There are two pervasive principles of natural justice: that the parties be given adequate notice and opportunity to be heard (audi alteram partem) and that the decision-maker be disinterested and unbiased (no man a judge in his own cause – nemo judex in causa sua).
20.	I should also refer to the landmark case of Ridge v Baldwin [1964] AC 40 where Lord Hodson stated at p.132.
“No one, I think, disputes that three features of natural justice stand out – (1) the right to be heard by an unbiased tribunal; (2) the right to have notice of charges of misconduct; (3) the right to be heard in answer to those charges.”
10.	The Supreme Court (Civil Procedure) Rules 1980 does not expressly provide for mistrials. Rule 206 however states:
“206. Procedure in matters not provided for - If any case arises for which no form of procedure has been provided by the Judicature Ordinance 1961 or these rules, the Court shall dispose of the case in such manner as the Court deems best calculated to promote the ends of justice.”
Discussion:
11.	Due to the manner in which these proceedings had been conducted on behalf of the defendants, I asked counsels to make submissions on whether a mistrial should be declared. Mr Su’a consented to a mistrial given the manner in which the case for the defendants had been conducted and the risk that represented to the defendants’ rights to a fair hearing. That is to Mr Su’a’s credit.
12.	Mr Tiotio opposed the declaration of a mistrial on behalf of the defendants. In part, as I understood what he was submitting, the declaration of a mistrial and the possible award of costs against the defendants would be unfair.
13.	Each of the defendants were asked by the Court whether they sought a mistrial or not. The defendants Fei Lutiloa, Tunufai Mano, Maleta Lutuiloa, Tomasi Tupuola Ema Sei, Kalau Okeamoa and Fili Mano sought a mistrial. Only the defendants Tiumalu Luisa Lutuiloa and Tau Lutuiloa did not seek a mistrial.
14.	Mr Tiotio has put a case forward for only one of the firm’s clients, the first named defendant Tiumalu Luisa Lutiloa. No case has been put forward at all for the other defendants at the end of the plaintiff’s case and the completion of the first named defendant’s evidence. To exacerbate the problem, the defendant Tomasi Tupuola was not present for the hearing so not only did he not have the opportunity to cross-examine, but he did not hear the case against him.
15.	As a result, the defendants have not had the opportunity to cross-examine nor has Mr Tupuola heard the case against him. In the circumstances, all defendants have also not been given a proper opportunity to be heard, a key element to the right to a fair hearing. 
16.	It is regrettable that this issue only arose at the end of the first named defendant’s evidence. Mr Su’a similarly understood Mr Tiotio to represent all defendants. I have little doubt that experienced counsel claiming to act for only one defendant in a group of nine defendants would have promptly realized that when an opportunity to cross-examine had not been given to the other defendants, a procedural problem existed. Mr Tiotio’s inexperience has unfortunately resulted in this problem.
17.	I have no confidence that Mr Tiotio can now effectively represent the interests of all the defendants at this late stage of the hearing. I also have no confidence that he can resurrect the case on their behalf by the recall of witnesses to ameliorate the prejudice they now confront. Article 4 permits the Court to “make such orders as may be necessary and appropriate to secure to the applicant the enjoyment of any of the rights conferred by the Constitution.” To promote the ends of justice, I am also led to the same conclusion. A mistrial should be declared. 
Result:
18.	I declare a mistrial in these proceedings for the reasons I have set out. 
19.	Counsels have 14 days to agree on costs, failing which, parties may file a Memorandum as to Costs for determination by the Court. After I have determined costs, I will refer the matter to the civil list for re-mention to set a new hearing date.
Concluding Remarks:
20.	The conduct of these proceedings by Mr Tiotio is of concern, particularly given this is not the first time it has been at issue (see: Faapo v Cabinet/Caretaker Government [2016] WSSC 23 (25 February 2016) per Aitken J). Her Honour Aitken J also raised concerns about the supervision of counsel and more generally, about employed solicitors where Aitken J stated:

“34.	Mr Brunt, and other principals, need to take all such steps as may be appropriate to provide appropriate supervision of their staff. 
35.		This is an area where the Law Society should and does have a role ... They may wish to take this opportunity to review the scope of restricted certificates and/or develop guidelines (in consultation with the profession) articulating what supervision of junior staff should 	properly entail.”

21.	It seems that these concerns may not have been taken onboard. Defence counsel also did not appear to understand the rule in Browne v Dunn (1893) 6 R 67 (HL) now codified in section 76 of the Evidence Act 2016:
“HH:	Counsel do you know the rule in Browne v Dunn and what is in the Evidence Act about putting your case?

Tiotio	Your Honour, I have to check it.”
22.	As Aitken J has earlier stated, this is an area where the Law Society should and does have a role. Inexperienced counsels must be properly supervised. It also brings to the fore the importance of continuing legal education (“CLE”). I would suggest to the Samoa Law Society that there is real merit in addressing these issues through an effective CLE program. 
JUSTICE CLARKE