E.F.K.S in the Court of Appeal

By Samoa Observer 28 May 2017, 12:00AM

“And it shall turn to you as a testimony.”

A Biblical Rejoinder from Luke 21:1-38 Revisited.


By T.S. Malifa, Malua, 25 May 2017 


At the beginning of proceedings in what is now Reupena v Senara [2016] WSSC 140 and CA 11/16, I caused to be published in these pages a biblical rejoinder from Luke 21:1-38 (Samoa Observer 22 May 2015, p.p. 13-14, 23).

Then, in Kerita Reupena v Congregational Christian Church Samoa [2015], the Congregational Christian Church Samoa (EFKS, the Church) inherits Jesusʼ words to his disciples, “But before all these, they shall lay their hands on you, and persecute you, delivering you up to the synagogues, and into prisons, being brought before kings and rulers for my nameʼs sake” (KJVS). While governors, kings and prisons are fairly self explanatory, ʻsynagoguesʼ is less clear.

It is a reference to the religious order of the day. ʻSynagoguesʼ were the worship places of the Jewish religion - yet to be formalized in the Judaism of today - since the destruction of the Temple in the first century Anno Domine.

The synagogue is still the worship place of Judaism today. Jesusʼ followers were Jewish, as is He. To be delivered up to the synagogues was to face religious persecution. Back then in Kerita Reupena v Congregational Christian Church Samoa WSSC 140 [2015], I said that the Congregational Christian Church Samoa inherits the words of Jesus made to his followers.

They were to be persecuted by the political, religious and social order of the day. Kerita Reupena, especially his counsel Mrs. Olinda Woodroffe, had just ʻlaid their handsʼ on the followers of Jesus, and had brought the followers of Jesus ʻbefore kings and rulersʼ and ʻpersecutedʼ them. Kerita Reupena was a member of the EFKS and his suit, counseled by Mrs. Olinda Woodroffe, as it becomes clear as matters progressed, was religious persecution if any there was.

They wanted to invalidate the way the EFKS has operated for over 200 years, by bringing to bear on the EFKS the cumbersome, and overbearing processes of the Courts. In turn, the rejoicing in all quarters of the religious order in Samoa and abroad at the persecution of the Church was palpable.

For the followers of the simple Nazarean, simpler Galileans fishermen themselves, and simplest still Samoans of the EFKS ilk, the threat of prison was acute.

The venerable scholars of the Directors Committee, believed that they faced prison time and some refused to accept the service of documents on account of this action, because they felt persecuted. They anticipated imprisonment, and feared the Courts. 

Then, I wrote in these pages that, the Church need not do anything. The Church should just sit back and relax, and let the Court case take its course. As a Defense, I said then that the Church need only submit to the Courts her life history: how the EFKS has been operating for the last two hundred years.

I said then that the Church could only follow and emulate Jesus when he was brought to be judged. When he was brought before Pontius Pilate to be judged, he said to the Roman Pro-Consul: “You would have no authority over me at all, unless it was given to you from above” (John 19:11).

I said then that this is what the Church does when she submits her Committee deliberations and meetings and Constitution to the Courts. It is also what was demanded by Jesus when he told his followers, “And it shall turn to you for a testimony” (Luke 21:13). Jesus knew that the persecution that would engage his followers would be an occasion for his followers to bear witness to its life and His.

For testimony Jesus used the Greek word, marturion a noun from the Greek verb, marturew ʻbear witnessʼ. He knew that his followers would endure their persecution as their ʻmartyrdom.ʼ He continued in the kind of defense that he advocated as he acted, 14“Settle it therefore in your hearts, not to meditate before what you shall answer. 15For I will give you a mouth and wisdom, which all your adversaries shall not be able to gainsay nor resist” (Luke 21:14-15).

Jesus warned his followers, to put in their hearts, not to appoint or to prepare to be defended, because He would give them a mouth and wisdom, a defense that their opponents will not be able to resist. He defended himself before the Roman Courts, and the Synagogue. He told his followers not to engage legal counsel, but to believe that He himself will give them a Defense that their persecutors would not withstand. 

Back in 2015 as these proceedings went to trial, I urged the Church in these pages and privately, not engage legal counsel in obedience to the words of encouragement of the Lord.

The Directors Committee collectively and individually needed only to represent themselves before the Court - incidentally something that the Courts allow - and tell the Court why they did what they did and how they have done this for over two hundred years. How then Kerita Reupena was part of this Committee and its deliberations. They need only answer to what is asked of them and no more no less.

I think this was what Jesus meant when he said, ʻI will give you a mouth and wisdom, which all your adversaries shall not be able to gainsay or resist.ʻ Jesus is asking the Church to stake her future on her present life and faith. 

As soon as the Church engaged counsel, the Church had thrown herself at the mercy of the Court. Solicitors and Barristers and Queenʼs Counsel, are officers of the Court, and are required to do things in a certain way as officers of the Court.

They assist the Court to make a decision on matters before the Court. They are beholden to the Court and not the client Church.

The Church bought the services of a Queensʼ Counsel from New Zealand, and retained Samoan counsels, to defend the Church, showing the Church has now depended on the expertise of highly regarded Court person to spin her life of martyrdom to the Court, so that the Court can make a decision.

It has no faith in her own systems and her own life. The Church wanted to save herself from having to bear witness (marturein). Jesus wanted her to be a marturion, and be martyred. 

Then in Reupena v Senara [2016] WSSC 140, Chief Justice (CJ) Sapolu dismissed Reupenaʼs claim against the members of the Directorsʼ Committee, now Komiti o Mataʼupu Tau le Aufaigaluega of the Congregational Christian Church Samoa, that he had been unfairly dismissed from his post in the Queensland District and the Church.

CJ Sapolu had also discharged an injunction that had stopped the Church from moving forward in the division of the District of Queensland and the appointment of new officers. The CJ ruled that Reupenaʼs claim against the Church could not be decided in Court.

The CJ added that even if the Reupenaʼs claim against the Church could be decided in Court, the Constitution of the Church permitted the dismissal as proper procedure and compliant with the principles of natural justice. But from hereon, the processes of the Court, onto which the Church had thrown herself, would prevail.

The Samoan Courts is an adversarial system and an appeal was a given. Mrs. Woodroffe, Reupenaʼs counsel, appealed to the Court of Appeal, on behalf of Reupena, challenging the CJʼs conclusion that the claim could not be brought in a Court in Samoa.

Reupena and counsel also challenged in appeal, the CJʼs conclusion that the Constitution of the Church permitted the dismissal of Reupena as compliant with the principles of natural justice. The appellant alleged that the CJʼs decisions were motivated by actual and apparent bias.

The bias alleged by Reupenaʼs counsel is that the CJ and his wife are members of the Church and also office holders, and the CJʼs wife is indebted to the Church for the balance of rental arrears for a business lease the CJʼs wife had held with the Church.

The CJ was actually biased and preferred the case of the Church over his own, because his wife was indebted to the Church.

Reupena claims of the CJʼs findings, that if actual bias cannot be proven, then there was apparent bias. Reupena has also appealed the dismissal of a recall application in the Supreme Court. 

The CA, Honourable Justice Blanchard, Honourable Justice Panckhurst and Honourable Justice Tuala Warren gave the Courtʼs Judgement on 31 March 2017.
The Court of Appeal heard how this bias is said to have been in practice in the rulings made by the CJ in the course of the trial.

Mrs. Woodroffe says that the Church was allowed to file five lengthy affidavits on the day prior to the hearing, and her client had only 

20 minutes to read these, and did not have time to consult his counsel concerning these affidavits, before the hearing.

The Court of Appeal found instead that the Church could have chosen to have witnesses give their evidence orally, in which case Reupena would have been unaware of what they were going to say until it was put to him in cross examination.

The Honourable Justices said that the decision was made to have the Churches witnesses swear affidavits, otherwise Reupena would have had to face that situation of answering to verbal evidence.

The reference to the 20 minutes reading time, is misleading, they said, because Reupena had the rest of the day and the next morning to read what amounted to a four page affidavit, because the trial did not begin until the afternoon of the next day. 

Mrs. Woodroffeʼs also objected that she was unable to confer with her client because he was in the middle of cross examination. The Honourable Justices were satisfied that the arrangement made by the CJ, to meet with both counsels and the appellant in the morning, to have any issues aired, providing also for a private discussion between the appellant and his counsel concerning matters raised in the affidavits.

The Honourable Justices thought that greater embarrassment could have been caused to the appellantʼs case had not affidavits been provided. 

Mrs. Woodroffe also claimed that she was not allowed to make an opening statement in relation to her clientʼs case, whereas the Church counsel Mr Cooke QC, was allowed to do so. She also claimed that the CJ frequently interrupted her re-examination of Reupena.

The Honourable Justices found that there was nothing to these complaints. The Honourable Justices found that none of the rulings made by the CJ during the trial had any appearance of bias against the appellant. 

The Honourable Justices then turned to the critical matter of Mrs. Sapoluʼs debt to the Church. The CJ has denied knowing of his wifeʼs indebtedness to the Church. There was, the Honourable Justices found, no evidence from the appellant that challenged the CJʼs denial.

Mrs. Woodroffe suggested to the Court of Appeal that the CJ should not be believed, not knowing of his wifeʼs substantial debt to the Church.

The Honourable Justices found while that is surprising between husband and wife, the Court must accept the CJʼs sworn statement that he did not know of his wifeʼs indebtedness to the Church. 

It follows then that there was nothing that has been referred to the Court, that supports the claim of actual bias. As to apparent bias, a normal person must also conclude that the CJ did not know of his wifeʼs debt and that the CJ would not have decided the case other than on its own merits. 

There could not be a real danger of bias when the CJ was unaware of the matter that could lead to a concern of bias. The bias ground of appeal therefore fails, the Honourable Justices found [15] and [16].

The CA found that none of the rulings of the CJ during the trial had any appearance of bias against the appellant. He had summarily dismissed the appellantʼs recall of judgement application because he may have been irritated by the allegation of bias, or that he had already considered, correctly, that the matter is to be dealt with in the CA [13]. 

Having dismissed the grounds for appealing the CJʼs conclusion and having dismissed Reupenaʼs recall of judgement application, a lay person as I would have thought that the matter was therefore concluded.

The recall of judgement and appeal of the CJʼs conclusions that Reupenaʼs claims cannot be decided in Court had been based on allegations of bias. That basis was now found to be non existent.

The recall of judgement application had also been correctly dismissed. I assumed that the appeal had failed and the CJʼs Judgment at Reupena v Senara [2016] WSSC 140 stands. 

The CA however turned to what it called, Factual Findings, of the Supreme Court Reupena v Senara [2016] WSSC 140. At [17] the Judgement under the above heading, says that the ʻcase is about the removal of the appellant from his office as an Elder Ministerʼ, meaning WSSC 140, because in [19] - [29], the CA revisited the evidence presented in the Supreme Court, leading to the dismissal of Reupena from his position in the Church. 

At [30] to [34] the Honourable Justices turned to the Constitution of the Church, looking at parts of the Constitution that they thought had a bearing on the CJʼs decision. 

The CA considered how the CJ came to the conclusion that Reupenaʼs claims could not be decided in Court. The CJ had consulted a number of precedents close to the facts of this case, in Australia and New Zealand and the UK.

The CJ had decided to follow the approach of the Courts in New Zealand and Australia, in Mabon v Conference of the Methodist Church of New Zealand Inc.

[1998] 3NZLR 513 (CA) and Ermogenous v Greek Orthodox and Community of South Australia Inc.

[2002] HCA 8; (2002) 209 CLR 95 (HCA). as closely resembling the case being considered, where the ministers are selected and appointed by congregations and the ministers remuneration is paid for by donations by the members of congregations, and depends on what the members of the congregations can afford.

The CJ referred to the special place that the Church and ministers of religion occupy in Samoan society as reflected in the Preamble of the Constitution of Samoa. All of this was in line with the traditional common law approach of non intervention in the internal 

affairs of a voluntary unincorporated religious organization. The CJ therefore concluded that Reupenaʼs action could not be dealt with in Court and should be dismissed [37]. 

In the CA however, the Court applied a UK case, Shergill v Khaira [2014] UKSC 33; [2014] 3 All ER 243 to the CJʼs decision. The CJ had disregarded this case as departing from the traditional common law approach. The CA now says that Shergill v Khaira had developed, appropriately, the common law approach to religious bodies, as in Mabon and Ermgenous.

The CA found from Shergill that while religious communities are voluntary, the Constitution of religious association is a civil contract which sets out the rights and duties of both the members and its governing organs.

The CA also found that the jurisdiction of the Courts can be invoked if the religious organisation acts beyond its legal power and authority, and the religious organization has acted clearly and demonstrably beyond its own Constitution, and in a manner calculated to affect the rights of any of its members. 

In the case before the Court, the CA found that the Constitution of a religious body like the Church, (a) is a civil contract, which sets out the rights and duties of both the members and its governing organs; (b) gives the holder of an office the rights relating to that office found in the Constitution, as well as rendering the office holder subject to the duties found there; and (c) disallows the Courts to interfere at the behest of an office holder unless a governing organ of the Church acts outside of its Constitutional powers, or if there is a breach of fair procedure, or if there is a breach of the rules of natural justice [47].

The Honourable Justices concluded that with due respect to the CJ, the CA considered that these are common law principles that do apply in Samoa and to the Church.

The CA found that this is not a burdensome constraint for the Church and its governing organs. In choosing to adopt a Constitution, the Church has chosen to apply to its members, office holders and organs the rules and regulations found therein.

The CA continued that having considered the provisions of the Constitution, it is brought to the view that the Constitution must have been intended to have contractual force in the sense that members, officeholders and governing organs are bound in law to comply with its terms.

The Court stresses that it sees no contradiction in the statements of religious principles in the Constitution and the intention that the Constitution operates contractually [49].

It also stressed the observation of the Court in Shergill that the civil court does not decide the merits of disciplinary action if that action is taken within the contractual powers of the religious organization, and it acts without breaching the rules of natural justice [49]. 

The CA concluded that the present dispute is actionable in the Courts, even though both parties are agreed that there was no contract. The Court held to its position that while the parties did not enter into a contract, a contract exists because of the Constitution of the Church. 

The CA perused the Constitution of the Church relating to the powers of the Eldersʼ Committee and the Sub-Committee, Directorsʼ Committee and at [52] and [53] agreed that the Church had the disciplinary powers to remove Reupena, assuming a fair process by the Directorsʼ Committee [54]. 

The CA however found that the Directorsʼ Committee, in this dispute, neither followed fair process nor conduct itself according to the principles of natural justice. The Directorsʼ Committee did not allow Reupena a fair hearing, in that he was not present to defend himself when the decision to remove him was made. The Court ruled out of order the usual business of the Directorsʼ Committee, as in this case.

The Court adjudged that it was ʻquite wrong for the decision to be made before the appellant had the opportunity to be heard.ʼ The Court found that it was not a remedy to afford the appellant the opportunity to speak after the decision to remove him had been made [55]. 

The Honourable Justices allowed the appeal in Court of Appeal 11/16. The removal of Reupena from the District was unlawful because the principles of natural justice in relation to his removal were not honoured [57].

The appellant conceded that the Church has moved forward in its work in the Queensland District, and due process of relief is not a viable option. The CA also conceded that it was reluctant to order reinstatement in a situation where it is clear that there is a loss of trust in each side, as is evident here. The Court reserved costs [56]. 

I have tried to write about this Judgement as a means of understanding it because of the real threat to the Congregational Christian Church Samoa and its life and people.

In 2015 at the beginning of these proceedings, in A Biblical Rejoinder from Luke 21:1-38, I wrote that Shergill, being a UK case involving the Sikh religion, could not contribute to a resolution of a case involving the Church in Samoa. The Sikh religion is as voluntary as the Church is a business.

In Australia, I have found that the Church can be brought before the Courts if it is incorporated or is a limited company, not because it has a Constitution.

When I wrote in these pages in 2015 and urged the Church - members of the Directors Committee being sued - to represent itself and themselves in Court, it was in obedience to the call of Christ, firstly not to prepare a defense before hand, and secondly, to show to the civil Court the witness bearing, the martyrdom, that is the true character of the Church. 

There is persecution in the Courts when church people are dragged before the Courts, as people are in fact scared stiff of the Courts, as a place of punishment for offending. The lawyers and solicitors are amicus curiae, friends of the Court.

I believed that however the Supreme Court ruled in Reupena v Senara [2016], no appeal would have been possible if the members of the Directorsʼ Committee represented themselves. Appointing counsel before the courts is a thing of this world.

The Church is not of this world in that respect. The present Constitution of the Church has a Preamble like that of the Constitution of Samoa.

The Constitution reads as a Preamble, ʻThis Constitution has been prepared in the hope that it will guide the whole Church in villages, Sub-Districts and Districts. There is belief and faith in the truth and integrity of offering for the work of God as led by Jesus Christ, the head of the Churchʼ (p. 4).

This Preamble serves also as the purpose of the Constitution, and shows quite clearly that any reading of any part of this Constitution, must be so done with the express purpose of professing the faith, truth and integrity of the life of the Church, the work of God, as led by Jesus Christ the Head of the Church. 

At [48] the CA, about the Constitution of the Church said that, there would be no point in saying that the decisions of the Church are binding ʻif they have no legal effect.ʼ

At [49] the CA said that having ʻcarefully considered the provisions of the Constitution of the Church we are brought to the view that if (sic) must have been intended to have contractual force in the sense that members, office holders, and governing organs of the Church are bound in law to comply with its terms.ʼ 

The CA has obviously not read the Preamble of the Constitution of the Church, where the only intention of the Constitution and the Church beholden to it, is to profess the faith, truth and integrity of the life of the Church under the leadership of Jesus Christ, the Head of the Church.

In this, it is speculative to ask about ʻintentionsʼ in the Constitution of the Church to be contractual.

The Constitution of the Church is not a contract, but a way of life. It is constituted from the Bible, but is not meant to replace the Bible as the Constitution of the Church. 

The procedures of the Directorsʼ Committee of the Church, found ʻunsatisfactoryʼ and ʻunfairʼ by the CA [56] are the procedures of the Directorsʼ Committee, as derived from the Constitution, under the leadership of Jesus Christ.

Kerita Reupena when he accepted the martyrdom of Christ in his life over several years, had followed these procedures. When he no longer accepted the burden of the rule of Christ in his life, he has duly dismissed himself under the Constitution of the Church.

The Directorsʼ Committee only relayed his apostasy to the Church of Christ. His appeal in the Court of law, against the sin that he has 

committed confirms this. The Church takes quite literally the leadership of Christ in her life, as her authority as derived from the authority of Christ.
But these are matters of the life of the Church that are not common knowledge.

No officer of the Court however clever, is meant to know these matters. The Honourable Justices of the Court of Appeal did not.

These matters are the way of life of ministers of the Church. They are best placed to relay these considerations in no uncertain terms to the Courts. In so doing they witness to the rule and authority of Christ in the world. 

The CA Judgement ensures that the Church will face persecution in the future. It may also open the Church to litigious persecution from the past. The Church is happy concerning all of this.

The Church is unlikely to change anything of its life and work because of this action and judgement. She will continue to witness to the authority of Christ in Samoa and the world as it has over several years.

She will show, as she has shown over several years, the life of martyrdom suitable only to the Church. One to which Bishop of Smyrna, in the first centuries of the Early Church, at the threat of being burned alive because of his faith in Jesus Christ, is said to have uttered, “Eighty six years have I known my Lord, and he has done me no wrong, how can I deny him now.ʼ 

With the Bishop of Smyrna some years ago, the Church responds to the principles of natural justice as they apply to members of the Church. EFKS church members have no natural rights, only unnatural rights to Christ. 



By Samoa Observer 28 May 2017, 12:00AM
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