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FETUUNAI MUNIAO LIPOTI O SUESUEGA GALUEGA FAATINO 2
TO: “Ia iloilo ma suesue Tulafono a Samoa, pe faapefea ona tutoatasi le Faamasinoga o Fanua ma Suafa mai Faamasinoga o Soligatulafono, e aunoa ma le aafia ai o mataupu o le Faavae.”
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Table of Contents
BACKGROUND ...... 3 1. PART 1: AUTONOMOUS LAND AND TITLES COURT ...... 4 2. PART 2: HISTORY OF THE LAND AND TITLES COURT (1889- 2019) ...... 4 3. PART 3: ANALYSIS OF THE 1975 COMMISSION OF INQUIRY REPORT ON THE LAND AND TITLES COURT ...... 9 4. PART 4: COMPARATIVE ANALYSIS - LAND & TITLES PROTECTION ORDINANCE 1934 AND LAND & TITLES ACT 1981 ...... 11 5. PART 5: SUPREME COURT AND COURT OF APPEAL LTC CASE LAW ANALYSIS ...... 12 6. PART 6: 57 YEARS OF 23 CONSTITUTIONAL AMENDMENTS ...... 18 7. PART 7: SIMILAR SPECIAL COURTS IN OTHER JURISDICTIONS ...... 19 8. PART 8 - INTERVIEW WITH SOME MEMBERS OF THE JUDICIARY...... 26 9. APPENDICES ...... 29 Appendix A (1) - Similarities between the LT Ordinance 1934 LT Act 1981 ...... 29 Appendix A (2) – Differences between the LT Ordinance 1934 LT Act 1981 ...... 33 Appendix B – General: SC and LTC Case Review ...... 36 Appendix C – SC & COA Judicial Review of LTC Decisions ...... 43 Appendix D – Non-Judicial Review cases ...... 60 Appendix E - Special Courts of Other Jurisdictions considered ...... 84 LIST OF REFERENCES ...... 89
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BACKGROUND
By Cabinet Directive FK (19)31 of 20 September 2019 the Ministry of Justice and Courts Administration, the Office of the Attorney General and the Samoa Law Reform Commission were tasked to research and recommend on the following Terms of Reference.
Terms of Reference 1 To review and research the laws of Samoa on how customs and usages can be recognised and protected under the Constitution, within the ambits of the Constitution;
Terms of Reference 2 To review and research the laws of Samoa on how the LTC can be an independent set up from the formal courts, within the ambits of the Constitution; and
Terms of Reference 3 To make recommendations.
Following approval by the Hon Prime Minister and the Minister of MJCA on 11 October 2019 of the above TOR, the Samoa Law Reform Commission (SLRC) carried out research to inform the recommendations for this Project.
Similar to Terms of Reference 1, it is important that this very crucial task for Samoa is recorded in its making, and thus the Fetuunai Muniao Committee (SLRC, AGO, MJCA) has put together this Report, taken from the research of the Samoa Law Reform Commission.
This Report responds to Terms of Reference 2 - To review and research the laws of Samoa on how the LTC can be an independent set up from the formal courts, within the ambits of the Constitution.
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1. PART 1: AUTONOMOUS LAND AND TITLES COURT
Introduction
1.1 One of the complexities of legal pluralism is defining how its customary land and title court matters are dealt with in Samoa’s Court System. Although Samoa has a specialized Land and Titles Court with exclusive jurisdiction to hear customary matters, there remains the challenge of finding common ground when there are contradictions between customary law and western law.
1.2 With Terms of Reference 2, Government’s goal can be viewed as – ‘for Samoa’s Land and Titles Court to be autonomous and separate from the formal/western courts, to be able to decide on customary land and title matters without or, with little interference’.
1.3 This is not a new nor an uncommon goal of Government, in fact, research shows that this was the original intention behind the set-up of the Land Commission which later became the Land and Titles Court. (The following Parts of this Report will further discuss these).
2. PART 2: HISTORY OF THE LAND AND TITLES COURT (1889- 2019)
Summary
History informs that the Land and Titles Court was always intended to be an autonomous setup; a unique court with specialist jurisdiction to determine disputes on customary land and customary titles in Samoa.
2.1 At the opening of the additional Land and Titles Court at Savaii in 1970, former Prime Minister Tupua Tamasese Lealofi IV said of the criminal courts and the Land and Titles Court:1 “The respective roles and functions of the two courts are different. One is for the maintenance of law and order, the other is for the protection of rights to customary lands and titles- the two basic and fundamental things which form the very core of our Samoan society. The decision of the Criminal Courts ill affect only those accused, whereas the decisions of the Land and Titles Court have far reaching effect for they are binding even on the unborn generations.”
1 Epati A S; Lawyers and Customary Law Court, Pacific Courts and Legal Systems, IPS USP Fiji, 1988, Chapter 28.
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1.2 The Land and Titles Court (as currently known) survived 3 administration - the German, New Zealand and Independent Samoan.2 It has also maintained its general aim and objective of resolving disputes regarding customary lands and titles. The Constitution 1960 continues the Land and Titles Court and its jurisdiction over customary lands and titles cases is stipulated in the Land and Titles Act 1981. HISTORY OF THE LAND AND TITLES COURT (1889 – 2019)
(Fanaafi Aiono- Le Tagaloa, The Land and Titles Court of Samoa 1903-2008 (Continuity amid Change), A Thesis submitted for the degree of Doctor of Philosophy in Law at the University of Otago, Dunedin, New Zealand, August 2009.) Epati A S; Lawyers and Customary Law Court, in Powles G and Pulea M (eds), in Pacific Courts and Legal Systems, IPS USP Fiji, 1988 167 - 170 . 1889 Tri-Partite (German, Britain and USA) Land Commission 1889 (Berlin Act 1889) - Fore runner of the Land and Titles Court. TRIPARTITE (GERMAN, It consisted of 3 competent and impartial persons, one named by BRITAIN & USA) each of the Big 3, assisted by Natives Advocate (2 years to investigate and report to the Supreme Court of Justice) 1903 Land and Titles Commission established under German administration. GERMAN It was to adjudicate native disputes over native titles and lands. It comprised of an Imperial District Court Judge (as Chair) and 2 assessors appointed by the Imperial Governor.
1934 Enactment of the ‘Native Land and Titles Protection Ordinance 1934’
NEW ZEALAND This Ordinance established the ‘Native Land and Titles Commission’
1937 The name ‘Native Land and Titles Commission’ was changed to ‘Native Land and Titles Court’ Commission changed to a Court under NZ Administration 1951 Name changed again to ‘Samoan Land and Titles Court’.3 1960 Constitution of Samoa 1960 1962 Independence Day of Samoa 1970 Additional Land and Titles Court established in Savaii 1981 – to date Enactment of the Land and Titles Act 1981 (repealed the Samoan Land and Titles Protection Ordinance 1934)
2 Fanaafi Aiono- Le Tagaloa, The Land and Titles Court of Samoa 1903-2008 (Continuity amid Change), A Thesis submitted for the degree of Doctor of Philosophy in Law at the University of Otago, Dunedin, New Zealand, August 2009. 3 Legislative Amendment in 1951 altered the term ‘native’ to Samoan’ in all New Zealand legislation. (Samoa Amendment Act 1951 (NZ), s.2).
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The above information is reproduced below in the form of a Flow Chart.
FLOW CHART: HISTORY OF THE LAND AND TITLES COURT
1. TRI-PARTITE LAND COMMISSION 1889 (German, Britain and USA) Administration (1st colonial administration) of Samoa established a TRI-PARTITE LAND COMMISSION 1889 (Berlin Act) – FORE RUNNER OF LTC a) To consider land claims of any kind of land in Samoa b) Established to investigate and possibly validate the existing foreign purchases that had already been made c) Consisted of 3 competent and impartial persons one named by each of the Big 3,
assisted by Natives Advocate (2 years to investigate and report to the Supreme Court.
2. GERMAN LAND COMMISSION 1903 pursuant to the 1903 Ordinance and Instructions a) Following the signing of the Treaty of Berlin 1899, the Control of Samoa was divided between Germany and USA (Western Samoa was under German administration)
b) Land Commission established by the German administration to adjudicate native disputes over native title and lands c) It comprised of an Imperial District Court Judge (as Chair) and 2 assessors appointed
by the Imperial Governor
3. NEW ZEALAND LAND COMMISSION pursuant to Samoa Native Land and Titles Commission Order 1920 a) It was initially the Native Land and Titles Commission but it was converted into a Court of Record in 1934 (Samoan Land and Titles Protection Ordinance 1934) although it was not referred to as such until 1937 b) It confirmed its exclusively jurisdiction over the following matters: (i) In all matters relating to Samoan names and titles; (ii) To make orders and declarations in respect of Samoan names and titles that were
necessary to preserve or define them or the rights or obligations attached to them in accordance with the customs of the Samoan race and all relevant laws in force in Samoa;
(iii) In all claims and disputes between Samoans relating to ‘customary land’ and the right of succession to property held in accordance with usages and customs of the Samoan race
6 © Samoa Law Reform Commission 7 4. CONSTITUTION OF SAMOA 1960 a) Article 103 continues the Land and Titles Court – There shall be a Land and Titles Court with such composition and with such jurisdiction in relation to Matai titles and customary land as may be provided by Act. b) The Samoan Land and Titles Protection Ordinance 1934 (under NZ administration) was continued to be used by Samoa until 1981 when its own Parliament passed its own Land and Titles Act 1981 (which repealed the 1934 Ordinance) 1.3c) The The above Land flow and chart Titles allows Act 1981 some ope preliminaryrates to date analysis – AN. ACT to consolidate and amend the i. lawPrior relating to colonization to customary 100% land of andland titles, in Samoa and tow asthe customary LTC. land.
ii. With the arrival of the different colonial administrations, several customary lands were bought by foreigners in exchange of firearms and goods. This is the era of ‘land grabbing’ as scholars referred to. Under the Tri-Partite era, a Commission was established to investigate these transactions and validate them.
iii. The LTC (as currently known) was an institution established by Samoa’s former colonial powers with the intention to adjudicate status of lands (during the ‘land grabbing’ Tri-partite era) in Samoa. It was not homegrown.
iv. The intention/objectives of the LTC (as currently known) changed over the years: a. Tri-Partite was about investigating and validating foreign purchases already made (in the ‘land grabbing era) b. German administration was more sympathetic/understanding of Samoan land & customs and faamatai and chose a system that takes into account the views of Samoans in the process. Samoan customs were not expressly provided in the 1903 Ordinance and Instructions c. NZ Administration continued what the Germans established but clearly expressed in the Samoa Native Land & Titles Commission Order and the Samoan Land and Titles Commission Ordinance 1934, the exclusive jurisdiction of the Court to determine native titles and customary lands
v. Samoa’s Constitution 1960 continued the Land and Titles Court (established under the 1934 Ordinance of NZ) until our own Parliament passed its own local law by its own Parliament in 1981- Land and Titles Court Act 1981.
vi. The jurisdiction of the LTC has not changed much since the German Land Commission 1903- adjudicating customary land and titles matters following a ‘western styled judicial model.’. Records of some early cases under the 1903 Land Commission reveal that the structure then is the same now, with the composition now being mostly Samoans. In the 1903 Land Commission, the composition was mostly Europeans but a separate committee made of Samoans is consulted upon in certain cases. There were no lawyers present at the 1903 Land Commission (as now) and Samoan customs and usages were applied (as still the case today).
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JOURNEY OF THE LAND AND TITLES COURT
Tri Partite Land Commission (Berlin 1889 Act) was established under the Tri Partite (German, Britain and USA) Administration
The Land Commission was established pursuant to the Land and Titles Commission 1903 under the German 1903 Administration
The Native Land and Titles Commission 1920 was established pursuant to the Samoan Samoan Land and Titles Protection Ordinance Native Land and Titles Commission 1934 (Ordinance): Order 1920
converted the Native Land and Titles Commission into a court of record; Section 61 provides that 1934
“Neither the Supreme Court of New Zealand nor the High Court shall exercise control over the Land and Titles Court (whether in respect of want of jurisdiction or otherwise) by way of The Land and Titles Act 1981: appeal certiorari mandamus prohibition or repealed the Samoan Land and Titles otherwise howsoever”. 1981 Protection Ordinance 1934 Section 71 of the Act provides that “no decision of the Court shall be reviewed or questioned in any other court by way of appeal prerogative writ or otherwise howsoever.” Alaelua v LTC 1992 was the first case that 1992 determined the jurisdiction of the Supreme Court to review decisions of the Land and Titles Court. It held:
“Section 71 of the Land and Titles Act 1981 operates to oust the jurisdiction of the Aloimaina v LTC 1998 overturned the Supreme Court even when pleading decision of 1998 decision in Alaelua. IT held: the LTC is a nullity. “the Supreme Court can review decisions of the LTC where it is established that LTC has breached Part II of the Constitution (Fundamental Rights) . According to SLRC research, the precedent 2000 - set by the Aloimaina case has been followed/applied by subsequent similar 2017 judicial review cases.
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3. PART 3: ANALYSIS OF THE 1975 COMMISSION OF INQUIRY REPORT ON THE LAND AND TITLES COURT
(Fanaafi Aiono- Le Tagaloa, The Land and Titles Court of Samoa 1903-2008 (Continuity amid Change), A Thesis submitted for the degree of Doctor of Philosophy in Law at the University of Otago, Dunedin, New Zealand, August 2009.) Epati A S; Lawyers and Customary Law Court, in Powles G and Pulea M (eds), in Pacific Courts and Legal Systems, IPS USP Fiji, 1988, 167. Summary
To further support an autonomous nature of the Land and Titles Court, it is important to see the development of the LTC as seen through the Report by a Committee appointed by Cabinet in 1975 to review the old Land and Titles Protection Ordinance 1934.
Following the Commission of Inquiry Report in 1975, a number of important recommendations were made, pointing towards an autonomous Land and Titles Court. For example, - Customary legal system should be retained – as the instrument for preserving peace and harmonious relationships in society. A strong court is needed to help custom carry out this task in modern conditions. - The judges of the Supreme Court and the Land and Titles Court should avoid conflicts between the 2 jurisdictions and reconcile them where possible. This means the two systems must be separate. - The appointment of a President of the Land and Titles Court with equal standing as the Supreme Court Judges and Chief Justice suggests an LTC set up that is equally independent as the formal Courts.
Report of Committee appointed by Cabinet in 1975 3.1 In 1974 and 1975, a committee appointed by Cabinet reviewed the longstanding Land and Titles Protection Ordinance of 1934 which concerned the holding of matai titles, customary land and the land and Titles Court. The Committee comprised Members of Parliament (two of whom have since held the offices of Prime Minister and Minister of Justice), senior public servants, a Samoan Judge (Taulapapa Anesi), an acknowledged expert in custom and a legal adviser (Guy Powles). After wide consultation, the Committee produced a detailed report, some of the recommendations relevant to this review on an autonomous Land and Titles Court are set out below.4. Some Research Team Commentary are included.
4 Epati A S; Lawyers and Customary Law Court, in Powles G and Pulea M (eds), in Pacific Courts and Legal Systems, IPS USP Fiji, 1988, 168,169.
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Recommendations General The Land and Titles Court is an important and respected Court, founded in 1903. Its legislation and practice require a complete overhaul, including considerable expansion to deal with rapidly growing needs. Customary legal system should be retained – as the instrument for preserving peace and harmonious relationships in society. A strong court is needed to help custom carry out this task in modern conditions.
Status of the LTC and Formal Courts As the law of (Western) Samoa comprises of both English common law, equity and Samoan customary law, the judges of the SC and LTC to avoid conflicts between the 2 jurisdictions – reconcile them where possible.
Research Team Commentary: This is perhaps in line with Terms of Reference 1, incorporating custom in law within the ambits of the Constitution.
The status of the Court and its President should be recognized as being equal in some respects to the SC and CJ respectively.
Research Team Commentary: This is now put in place under Terms of Reference 2, for the existence of a Land and Titles Court independent from the courts of criminal and civil jurisdiction. The Chief Justice is the Head of the Bench in the Civil and Criminal Courts, and the President of the Land and Titles Court is the Head of the Bench of the Land and Titles Court.
Govt to appoint a Samoan as President as soon as a suitably qualified and experienced person is available Research Team Commentary: In 2004, the Land and Titles Act was amended to indert the following provision, to realise this 1975 recommendation.
s26A of the LT Act 1981 – Appointment of a person qualified to be a Judge or a Samoan Judge as President o (2) A Samoan Judge appointed under 26A(1) shall: a. have at least 5 years of relevant work experience in a senior position in the administration of justice; and b. hold such qualifications as may be determined by the JSC by notice.
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4. PART 4: COMPARATIVE ANALYSIS - LAND & TITLES PROTECTION ORDINANCE 1934 AND LAND & TITLES ACT 1981
Summary It has always been the intention and the spirit (as laid down by section 61 of the Land and Titles Protection Ordinance 1934) and section 71 of the Land and Titles Act 1981, that ‘no decision of the LTC is to be reviewed by any other Courts.’ This is a significant argument to note to support the ‘autonomous’ nature of the LTC.
KEY DIFFERENCES
The Ordinance – Part I – Town Area of Apia (sections 3 – 8) refers to the lands in Apia Town Area claimed by beneficial owner(s) who desires to alienate such land must make an application to the Secretary for the authority of the High Commissioner, Part II – Sale of Samoan Land to Samoans (sections 9 – 11) and Part III – Alienations by way of lease (section 12) are not included in the Act as sale of Samoan Land is prohibited.
Part V of the Ordinance in relation to ‘Pulefaamau’ is included in the Act, not as a whole Part but within the section regarding Surveys. Part VI – Titles Protection and Part VII – Land Titles Court are also included in the Act with few and minor differences. For example, these Parts have been explained in detail in the Act dividing it in divisions for easier read, which makes it more understandable for the reader and law makers;
Part VIII about Wills have also been removed and not included in the 1981 Act but in the Wills Act 1975.
KEY SIMILARITIES
Both legislation include an ouster provision which bars other Courts from reviewing decisions of the LTC: o Land and Titles Protection Ordinance 1934 - Section 61 expressly provides that “Neither the Supreme Court of New Zealand nor the High Court shall exercise control over the Land and Titles Court (whether in respect of want of jurisdiction or otherwise) by way of appeal certiorari mandamus prohibition or otherwise howsoever”.
o Land and Titles Act 1981– section 71 provides that “no decision of the Court shall be reviewed or questioned in any other court by way of appeal prerogative writ or otherwise howsoever.
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Although the wording of these 2 sections are slightly different, section 71 of the 1981 Act replicates s61 of the 1934 Ordinance. Prerogative writ mean ‘extraordinary remedies’ which includes 6 types of remedies – mandamus, prohibition, certiorari, habeas corpus, procedendo, quo warranto. The intention has been that the decisions of the Land and Titles Court cannot be reviewed by the Supreme Court or any other court.
Most of the sections of the Ordinance relating to the Land and Titles Court (“Court”) and Titles have been incorporated in the 1981 Act (although some were repealed by amendments of the 1934 Ordinance). The establishment of the Court and appointment of the Samoan judges and assessors, the appointment of matais etc, are provided for in the Ordinance and in the Act;5
The 1981 Act is not a total overhaul of the 1934 Ordinance as most of the sections in 1934 have been incorporated in the 1981 Act including those that were repealed by amendments to the 1934 Ordinance. (Appendix A(1) and Appendix A(2) provides in further detail the similarities and differences of the two pieces of legislation.)
5. PART 5: SUPREME COURT AND COURT OF APPEAL LTC CASE LAW ANALYSIS
Supreme Court and Court of Appeal and the Lands and Titles Court (1980-2017) Source: This Part was taken from the research and literature available.6 This Part is in 2 Divisions.
DIVISION 1 – General on SC & CA, Judicial review of LTC Decisions
Summary
1992: LTC a specialised Court and is not subject to review: The first case that determined the autonomy of the Land and Titles Court was decided in 1992 in the case of Alaelua v Land and Titles Court (1992). Alaelua held that “section 71 of the Land and Titles Act 1981 operates to oust the jurisdiction of the Supreme Court. The LTC is “not an inferior court, rather it is a unique court with exclusive jurisdiction over Samoan titles and customary land.”
5 A similar provision is found in the Samoan Status Act 1963 under section 6 that provides for the eligibility to hold a matai title. 6 Updated from ‘Case Law Analysis’, Teleiai Dr. Mulitalo, 2011, UQ.
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This landmark decision (in Alaelua) appears to reflect the intention of the law at the time, that the LTC is independent from the Supreme Court and that a decision or an order of the LTC cannot be reviewed or questioned in any other court for any reason.
1998: Except where fundamental rights are breached: However, this position was significantly discussed 6 years later in the case of Lia Aloimaina & Ors v LTC (Tuasivi), Toomata Ropati & Ors, Aloimaina Elekana (1998), where the Court held that the “Supreme Court can review decisions of the LTC where it is established that LTC has breached Part II of the Constitution (Fundamental Rights).” The court viewed that “for the purpose of review proceedings, the LTC is an inferior court”. It seems Aloimaina paved the way for the formal courts to follow and apply, when determining decisions of the LTC that are referred to the Supreme Court (and Court of Appeal) for judicial review. This change in direction of interpretation and application of the Supreme Court’s jurisdiction to review decisions of the LTC is perhaps evidence of the strong influence and impact of the foreign legal/court systems on the operation of Samoa’s court system.
Post 1998 Aloimaina case to date (2019): Overtime the courts (Supreme Court and Court of Appeal) have used its inherent jurisdiction to review decisions of the LTC as highlighted in case law that followed. Some 17 cases support and follow the decision in Aloimaina. The recent decisions in cases reveal that the courts have somewhat dictated how the LTC should operate and interpreting the issues that are within the ambits of the LT Courts. The ouster clause (s71) in the LT Act therefore becomes redundant and the question as to whether this section is still useful arises. The development of case law on the jurisdiction of the LTC can be seen as the LTC being inferior to the formal courts.
It can be argued that the Formal Courts (SC & CA) have, over the years, determined the fate of the LTC. What was once a special and uique Court has now had its jurisdiction and powers questioned/validated by the Formal Courts, due to the express provisions of the Constitution. It is timely that an autonomous Court is established to institute sovereignty in the Court to determine all disputes pertaining to land and titles, without it being subject to the Formal Courts.
Appendix B – sets out the General Case Law Analysis for Division 1.
DIVISION 2 – Specific on SC & CA and Judicial Review of LTC Decisions
Division 2 analyses the Judicial Review Cases available in more detail to highlight unique features of Land and Titles proceedings under judicial review in the Supreme Court of Samoa. These include - the fundamental rights (Constitutional Articles) relied upon as the grounds for juridical review proceedings; the arguments put forward by the parties; the panel of the judiciary, case law relied upon and the actual decisions of the Supreme Court and Court of Appeal. This record will be significantly useful for a new structure in the hierarchy of the Land and Titles Court, if required by law to review land and titles court decisions.
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To note: The analysis below is based on all the Judicial Review case law that the Commission were able to locate on paclii and obtain from other Offices in its research. It may not include all Judicial Review cases heard by the Supreme Court and Court of Appeal since the first case in 1980. JUDICIAL REVIEW CASE LAW
Atttached as Appendix C is a Table of the decisions of the Supreme Court and the Court of Appealon the Judicial Review of LTC decisions. For further information, attached as Appendix D is a Table of a further few cases which were not applications for Judicial Review per se, but were proceedings where the Supreme Court and the Court of Appeal discussed the jurisdiction of the Land and Titles Court to make certain decisions.
To give some background and understanding on where Samoa has come thus far in this area of law (Supreme Court of civil and criminal jurisdictions and judicial review of LTC decisions), and to give some indication of how an autonomous Land and Titles Court framework will allow for Samoans to have more influence over Samoan cutoms and usages in the court systems, some summaries are drawn out with demonstrations below.
1. Over the years, there has been a fluctuating number of judicial review proceedings heard before the Supreme Court and Court of Appeal. More and more people become aware of this avenue of recourse in court procedings and take advantage of it. This right continues under the proposed new framework.
SUPREME COURT LTC JUDICIAL REVIEW: NO. OF DECISIONS PER YEAR 1992-2020 8
6
4
2
0 1992 1998 2000 2003 2004 2007 2010 2011 2012 2014 2016 2017 2018
No. of Decisions Per Year
COURT OF APPEAL LTC JUDICIAL REVIEW: NO. OF
DECISIONS PER YEAR 1992-2020
2.5 2 1.5 1 0.5 0 1992 2006 2012 2017 2018 2019
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2. The most common fundamental right alleged to be have been breached is Article 9, right to a fair trial, followed by freedom of religion Article 11 and right to personal liberty Article 6.
Constitution Article Relied Upon
Article 6 - Personal liberty
Article 9 - Fair trial
Article 10 - Rights concerning criminal law
Article 11 - Freedom of religion
Article 12 - Rights religious instructions
Article 13 - Freedom speech, movement, assembly Article 15 - Freedom from discriminatory law
3. In terms of success and dismissal or struck out applications for judicial review, a significant number is dismissed and a few are successful as can be seen below, in both the Supreme Court and the Court of Appeal.
SAMOA SUPREME COURT: No. of LTC JUDICIAL
REVIEW DECISIONS 1992-2019
11% LTC JR Allowed / Successful: 21% 8/28 LTC JR Struck Out / Dismissed: 19/28 Partial Success, Leave to 68% Appeal success: 3/28
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COURT OF APPEAL DECISIONS: No. of LTC JUDICIAL REVIEW 1992-2019
14%
Appeal Allowed 1/7 Appeal Dismissed 6/7
86%
4. For the Supreme Court judicial review matters, for Samoan Judges, notably the most senior Supreme Court Judges have presided over the most matters. About half of the number of the Hon Judges presiding over the years are non-Samoan judges.
Presiding Judiciary
Sapolu CJ Nelson ACJ Vaai J Tuatagaloa J Lussick J Young J Wilson J Slicer J Gaskell J Tuala-Warren
5. For Court of Apeal decisions, the Court of Appeal has always been a group of overseas very senior judges. Perhaps this is mostly because the decisions being appealed are those made in the Supreme Court by the Samoan Chief Justice and Samoan Supreme Court Judges (who may sit on the Court of Appeal under the Constitution). But it also must be flagged that if the highest court of the land makes precedent for any country, or lays down the law as the final decision maker on a matter, then it is also arguable that in the past years, overseas foreign judges have had the final say on some Samoan practices, customs and usages, by deciding on appeal matters (judicial review
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decisions of the Supreme Courts) from the LTC courts. This must be addressed by allowing a sitting of Samoan judges on Samoa’s highest court on Civil and Criminal proceedings. This Research and accommodating laws hope to go some way in addressing these matters, if not in the resulting reforms to law then in upcoming reforms to law.
6. This must indeed be addressed if Samoa is to have some control over its customs and usages and allow for society to change by natural factors and not by mere foreign perceptions only, even if it is from a highest court. This is stated with the utmost respect to Samoa’s overseas partners and friends and Judge colleagues who have sat on Samoa’s court of appeal and have been very mindful, respectful and have refrained from commenting on matters of Samoan custom and usages, leaving them to the local judges. However, there have been a few decisions that have led to Samoans questioning their own long standing and effective customs and usages in the villages,7 or where in obiter dicta there are statements which are entirely the opposite from the reality of the faaSamoa.8 These must be addressed in the best way possible, for example, as soon as there is capacity, for Samoa’s Court of Apeal to compose of Samoan Judges. This can be achived also by an actively rising (in seniority and in numbers) Samoa Law Society.
COURT OF APPEAL COMPOSITION – SITTING ON SUPREME COURT DECISIONS ON THE JUDICIAL REVIEW OF LTC DECISIONS Case Name Court of Appeal Composition 1. Alaelua (Va’alepa Saleimoa Vaai) et al v LTC Honourable Justice Morling, et al 1992 WSCA[1992] SLR 6; [1980–1993] Honourable Justice Ward WSLR 531 (11 Nov 1992) Honourable Justice Muhammad 2. To'ailoa v Sapolu [2006] WSCA 1 (26 April Honourable Justice Ellis 2006) Honourable Justice Gallen Honourable Justice Salmon 3. Penaia II v LTC [2012] WSCA 6 (31 May 2012) Honourable Justice Baragwanath Honourable Justice Fisher Honourable Justice Galbraith 4. Mapuilesua v LTC [2012] WSCA 7 (31 May Honourable Justice Baragwanath 2012) Honourable Justice Fisher Honourable Justice Galbraith 5. Tanielu v AG [2017] WSCA 3 (31 March 2017) Honourable Justice Fisher Honourable Justice Blanchard Honourable Justice Panckhurst 6. Lemalu Saeni & Ors v Lemalu Fa'alafua & Ors Honourable Justice Fisher [2019] WSCA 3 (15 April 2019) Honourable Justice Panckhurst Honourable Justice Harrison 7. LTC et al v Lautogia et al [2018] WSCA 4 Honourable Justice Fisher Honourable Justice Panckhurst Honourable Justice Hansen
7 E.g. Elisara v Attorney General [2004] WSCA 4 (17 December 2004). 8 Seumanutafa, above n 1, 77.
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6. PART 6: 57 YEARS OF 23 CONSTITUTIONAL AMENDMENTS9
Number of Amendments made to the 13 Parts of The 9 Constitution from 1962 - 2019 8 Transitional 8 7 General and Misc. 7 Emergency Powers Land and Titles 6 5 5 Finance 5 Public Service Ombudsman 4 3 3 3 Judiciary 3 Parliament 2 Executive 2 1 Head of State 1 Fundamental Rights 0 0 0 0 Preliminaries 0
Commentary The Constitution is 58 years old in 2020 and needs revisiting. It is timely that Samoa revisits the Constitution to reflect more of Samoa in Samoa’s Constitution.
Amendments to the Constitution: A review of 23 amendments to the Constitution reveals the following: Part 6 (Judiciary) - Only 3 amendments were made to this Part. These 3 amendments can be said to be artificial amendments – they are non-substantive. Part 9 (Land and Titles) – No amendments have ever been made to this Part of the Constitution which gives recognition to the context of the “fa’a-Samoa”. For the 23 times Parliament sat to pass amendments to the Constitution, no amendment was on Part IX, Land and Titles. Throughout the years, not much thought has been given to Part IX, when it is the Part of the Constitution most relevant to the Samoan society. With this review and proposed amendments to the Constitution, this will be addressed in some way; these are long outstanding reforms for Samoa.
9 Source: Telei’ai Dr. Lalotoa Mulitalo, Presentation: Samoa: 57 Years of 23 Constitutional Amendments 1962 – 2019; Legal Training @ MJCA, November 2020.
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7. PART 7: SIMILAR SPECIAL COURTS IN OTHER JURISDICTIONS
The research also looked at other jurisdictions and if there are any such court structures Samoa can draw from, in setting up its new LTC court framework. Appendix E sets out an analysis of the courts of other jurisdictions. Some features may be helpful. Summary In each of the countries considered (Vanuatu, Fiji and New Zealand), each have its own set-up of a “special court” for specific needs of the respective countries. Samoa is the only country that specifies expressly in its law an ouster clause – separating the jurisdiction of its special court (the Land and Titles Court) from other courts (Article 71 of the Constitution). In light of research into the above mentioned countries and their special courts, it is suggested that Samoa need not look into the set-up of other countries’ special courts. Rather, Samoa can develop its own framework that best addresses and responds to the needs of Samoa and its people. Whatever framework Samoa will develop, if any similar framework/features in other countries, Samoa can look at them to see IF helpful, otherwise, Samoa can build its special courts framework – tailor made according to Samoa’s needs.
Samoa has its Land and Titles Court (LTC) it has a wide scope of jurisdiction to hear ALL matters relating to customary land and customary titles throughout all of Samoa. The LTC has exclusive jurisdiction to hear these matters. The only exception is in relation to matters requiring interpretation of the Constitution, particularly the application of constitutional rights. Vanuatu has Island Courts (IC) these ICs are particular to the respective islands in which it is established Their scope of jurisdiction covers both customary matters and civil and criminal matters (with limitations). Application of customary law - Section 10 of the Island Courts Act 1983 provides that “an island court shall administer the customary law prevailing within the territorial jurisdiction of the court so far as the same is not in conflict with any written law and is not contrary to justice, morality and good order.” NZ has Maori Land Court and the Maori Appellate Court it specializes in hearing matters relating to land of the Maori people. Any matter (order) relating to Maori land – cannot be appealed, annulled or made invalid in matter instituted more than 10 years after the order was made Fiji For purposes of this research, Fiji does not have a special court like Samoa, Vanuatu and NZ Fiji does however have in place multiple tribunals.
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Court System in Other Jurisdictions Further research was carried out into NZ, Fiji and Vanuatu and their respective Court Systems and the legislative authorities that establish and set up the different Courts existing and operating in their jurisdictions. (The tables below attempt to highlight the court systems of the abovementioned jurisdictions considered).
1. NEW ZEALAND
Source: Ngā Kōti o Aotearoa, Courts of New Zealand
A
B
I F C
J D H G
E
NEW ZEALAND COURTS Establishing Authority A. Supreme Act Court Senior Court Act 2016 Part 4 – Supreme Court Section 66 – Supreme Court continued (1) There continues to be a SC of NZ for the hearing of appeals in NZ B. Court of Act Appeal Senior Court Act 2016 Part 3 – Court of Appeal Section 45 – Court of Appeal continued (1) There continues to be a Court of Appeal of NZ C. High Court 1. Act Senior Court Act 2016 Part 2 – High Court
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Section 6 – High Court continued (1) There continues to be a HC of NZ 2. Common Law SOURCE Internet article - Inherent jurisdiction and inherent powers in NZ Author – Rosara Joseph
The High Court has inherent jurisdiction as a superior court of general jurisdiction. Only the High Court, as a court of general jurisdiction, exercises the inherent jurisdiction that was inherited from the superior courts of England. Statutory courts, including superior appellate courts, do not possess inherent jurisdiction because their jurisdiction is conferred and limited by statute. D. District Act Court District Court Act 2016 Part 1 - Establishment of District Court Section 7 – District Court E. Tribunals NZ has multiple tribunals, authorities and committees. Each body is and established by legislation which also sets out its functions, powers and Authorities extent of its authority or jurisdiction.10
F. Employme Act nt Court Employment Relations Act 2000 Section 186 – Employment Court G. Employme Act nt Employment Relations Act 2000 Relations Section 156 – Employment Relations Authority Authority H. Environme Act nt Court Resource Management Act 1991 Part 11 – Environment Court Section 247 – Planning Tribunal re-named Environment Court I. Maori Act Appellate Te Ture Whenua Maori Act 1993 (Maori Land Act 1993) Court Part 2 – The Maori Appellate Court Section 50 – Maori Appellate Court to continue J. Maori Land Act Court11 Te Ture Whenua Maori Act 1993 (Maori Land Act 1993) Part 1 – The Maori Land Court Section 6 – Maori Land Court to continue
10 Ministry of Justice website, ‘Tribunals’, https://www.justice.govt.nz/tribunals/ (accessed 05 November 2019). 11 A judicial forum through which you can interact with other owners or interested people about the current and future use, ownership, occupation and/or management of Maori land.
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2. VANUATU:
Source: Pacific Islands Legal Information Institute,
A
B
C
D
VANUATU COURTS Establishing Authority A. Court of Act Appeal 1. Constitution of the Republic of Vanuatu 1980 Article 50 (Appeals from the Supreme Court to Court of Appeal) Provides for appeals from the original jurisdiction of the Supreme Court and may provide for appeals from such appellate jurisdiction as it may have to a CoA which shall be constituted by 2 or more judges of the SC sitting together
2. Judicial Services and Courts Act 2003 (Chapter 270) No expressed provision establishing the Court of Appeal Under Part 5 (The Court of Appeal), section 45 (Appointment of SC judges and disqualification) provides that SC judge may sit as a judge of the CoA in accordance with Article 50 of the Constitution B. Supreme Act Court Constitution of the Republic of Vanuatu 1980 Chapter 8 – Justice
Section 49 – The Supreme Court, the CJ and other judges C. Magistrates Act Court Judicial Services and Courts Act 2003 Part 3 – Magistrates’ Court and Magistrates
Section 12 – Magistrates’ Courts continue in existence as a single court D. Island Act Court 1. Constitution of the Republic of Vanuatu 1980 Chapter 8 – Justice Article 52 – Village and Island Courts Parliament shall provide for the establishment of village or island
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courts with jurisdiction over customary and other matters and shall provide for the role of chiefs in such courts
2. Island Courts Act 1983 (Chap 167) Section 1 – Establishment of island courts
3. FIJI
Source: Pacific Islands Legal Information Institute,12
A
B B
C Family Division
D Family Division
FIJI COURTS Establishing Authority A. Supreme Court Act Constitution of the Republic of Fiji Chapter 5 – Judiciary Part A – Courts and Judicial Officers
Article 97(1) – The judicial power and authority of the State is vested in the SC, CoA, HC and MC, and in such other court or tribunals as created by law
Article98(3) – The Supreme Court (a) Is the final appellate court. (b) Has exclusive jurisdiction…to hear and determine appeals from all final judgments of the CoA (c) Has original jurisdiction to hear and determine constitutional questions referred under section91(5) B. Court of Appeal Act Constitution of the Republic of Fiji Article 97(1) – The judicial power and authority of the State is vested in the SC, CoA, HC and MC, and in such other court or tribunals as
12 Official site of Pacific laws - http://www.paclii.org/fj/courts.html.
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created by law
Article 99(3) – The CoA has jurisdiction, subject to this Constitution and to such requirements prescribed by written law, to hear and determine appeals from all judgments of the HC
C. High Court Act 1. Constitution of the Republic of Fiji Article 100(3) – The HC has unlimited original jurisdiction to hear and determine any civil or criminal proceedings under any law and such other original jurisdiction as is conferred on it under this Constitution or any written law
(4) HC also has original jurisdiction in any matter arising under this Constitution or involving its interpretation
2. High Court Act 1875 Section 3 – Name of Court and general jurisdiction (1) The HC shall be called the HC of Fiji (2) It shall have powers and jurisdiction as may be vested from time to time by virtue of the Constitution, this Act or any law for time being in force. High Court – Act Family Division Family Law Act 2003 – An Act to establish Family Divisions of the High Court and the Magistrates’ Court, to make fresh provisions relating to the dissolution of marriage, spousal and child support, parenting responsibility and spousal property, to provide for marriage counselling and reconciliation, and for related matters
Part IV – the Family Division of the HC and MC Section 15 – This section establishes a Family Division of the HC
Section 20 – This section establishes a Family Division of the MC which is subordinate to the Family Division of the HC
D. Magistrates’ Act Court 1. Constitution of the Republic of Fiji Article 101(2) The Magistrates Court has such jurisdiction as conferred by a written law.
2. Magistrates Court Act 1944 Section 3 – Establishment of Magistrates Courts
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SAMOA - Land and Titles Court
SAMOA
LAND AND TITLES
COURT Has jurisdiction to hear and deal with matters relating to:
Matai Titles
Customary lands
VANUATU – Island Court ALL OF SAMOA
Pentecost Island – Efate Island –
Island Court Island Court
Santo Island – Tana Island –
Island Court Island Court
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8. PART 8 - INTERVIEW WITH SOME MEMBERS OF THE JUDICIARY
INTERVIEW QUESTION: What are your thoughts about the transfer of Judicial Review jurisdiction of SC across to a FC of Review/Appeal of the LTC?
Summary The transfer of the judicial review jurisdiction to a LTC CFR is not totally disregarded by all the Judiciary members interviewed. There were some positive views towards this framework being beneficial for Samoa. This is supportive towards the pursuance of an autonomous framework particular to the LTC.
OVERALL COMMENTS RAISED BY THE JUDICIARY MEMBERS CONSULTED a) There was a divide in the overall input of the Judiciary. 5 members of the Judiciary, of the present and the past were consulted. b) 3 were unsupportive of the proposal, though one later changed his stance saying –to transfer LTC JR matters to a higher LTC Court is doable. c) The main concerns of the said judiciary members against the proposed framework are mainly in relation to administrative matters. For example: - Uncertainty as to the hierarchy of the court systems with 2 separate systems existing parallel each other – which will be the final court/highest court? - Separating the 2 courts would be costly and require more resources when the same things could be done without separating the 2 court systems (keeping the current structure of JR matters going to SC) - The need for statutory amendments to provide for the relevant JR jurisdiction for the LTC-CFR/A - The need to consider who will preside/hear the JR matters that will be heard at the LTC-CFR/A – in terms of experience and qualifications - Interestingly there were no comments/concerns or constitutional arguments except one justice’s ‘good luck with the wording’ remarks. d) Two Judiciary members (and the 3rd who was originally against and then was for) were in favour of the proposed new framework with an LTC-CFR/A. They did acknowledge in their comments that there will be matters that need to be in place before the new LTC-CFR/A is set up in its totality (i.e Constitutional amendments, considering composition of Judges/Assessors to preside in JR matters etc.), but they highlighted and emphasized that the separation of the Courts, the removal of the SC LTC JR jurisdiction to a LTC Framework would be beneficial for Samoa.
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OVERALL SUMMARY - COMMENTS RAISED BY THE JUDICIARY MEMBERS CONSULTED
General comments for the General comments against the Alternative options to the proposed framework proposed framework proposed framework
2 of the judiciary consulted Jurisdiction: Res Judicata expressed their thoughts in support The Judicial Review jurisdiction is an Res judicata to still apply for LTC matters – the principle of of the proposed new framework. inherent jurisdiction of the SC, no finality other court has this jurisdiction. Composition: In order to give the new Court this JR ALTERNATIVE OPTION 1: Presiding member should be a jurisdiction, this will require One of the judiciary suggested the following 2 options: legally qualified Judge with JR amendments to the laws to provide experience and adequate for JR jurisdiction of the LTC-FCR/A.(1) (1) A division of the LTC - Call it the Court of Final Review or understanding of tu ma agaifanua. any other name. Current arrangements re: Composition: General Comment CCLTC team: Constitutional rights and related The current judges of the LTC are not With this, this will still be a division of the SC which defeats matters to be left to SC. required to have legal qualification. the purpose of the autonomous LTC With the new JR jurisdiction, they Procedure: will need to be well versed with (2) Composition of Judges of the LTC & LTC-CA JR matters should be handled with principles of JR and have legal Put a legally qualified Samoan Judge in the LTC Judge finality at LTC FCR. qualifications composition and a Samoa legally qualified Judge in the LTC – There would be no point in We should focus on building CA. This will reduce JR matters going to SC (but will still allowing matter to go across again knowledge and skills of Judges remain with SC). as this is not practical. hearing matters at first instance, so General comment CCLTC team: Grounds for JR to be clarified in parties are given clear reasons for Also defeats the purpose of an autonomous LTC. the Bill – the current Bill is vague. decisions made to avoid further appeals of these decisions.
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Procedure: ALTERNATIVE OPTION 2: Uncertainty as to hierarchy of the Set up a Commission: courts with the new framework. Will the decisions of the LTC-FCR/A The Commission will not make any decisions. be final or will they be open to appeal Rather they will look at whether there may have been a to SC again? wrong done in any decisions given. Will it be 2 separate court systems? The Commission will then recommend that a matter be re- May be too costly and waste of considered by the Court of Appeal or deny referral to resources. Court of Appeal With JR – will there be room for - This will help control and avoid flood gate of lawyers to appear for these matters? matters (a controlled mechanism of righting Is this what the people want? past wrong decisions) - It is an attempt, and may not solve all the Judge Roma expressly stated that problems. lawyers should not be involved in LTC At the political level, this will also show that Government matters, except for LTC-FCR/A matters. is trying to address the concerns of the people raised. Others: We need to identify the main Commission decisions: problems with LTC first before we (1) Decision of referral for appeal move to propose new framework (2) Denial of referral The issue may not be JR matters as most JR matters are not necessarily Composition of Commission: JR matters, rather, they are (1) Can be judges who were going to be in the proposed Constitutional right matters. new Court.
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9. APPENDICES
Appendix A (1) - Similarities between the LT Ordinance 1934 LT Act 1981
Land and Titles Protection Ordinance 1934 Land and Titles Act 1981
13. In this Part of the Ordinance “Samoan Freehold Land” means any 8. Land deemed customary land – In this Act, and in every other Act, unless Crown or European land acquired either before or after the inconsistent with the context, the following land is deemed customary land, and any commencement of this Ordinance by a Samoan and held by him or any interest in the following land is deemed interest in customary land: Samoan successor in title for an estate in fee simple and whether or not (a) any Samoan freehold land within the meaning of section 13 of the Samoan Land such estate in fee simple be subject to any lesser estate or interest or and Titles Protection Ordinance 1934 (as that section and Ordinance had existed any encumbrance. prior to this Act coming into force) in respect of which the Court has made a “Samoan Interest in Freehold land” means declaration, pursuant to section 16 of the Ordinance, that such land or interest in (a) an estate or interest in Crown or European land less than an such land be held in accordance with the customs and usages of the Samoan people; estate in fee simple acquired either before or after the (b) any Samoan freehold land within the meaning of section 13 of the Samoan Land commencement of this Ordinance by a Samoan successor in title and Titles Protection Ordinance 1934 (as that section and Ordinance had existed for such or any lesser estate or interest; prior to this Act coming into force) in respect of which, in terms of section 17 of the (b) any estate or interest in Samoan freehold land acquired by a Ordinance, there has been a recital or declaration made pursuant to a Government Samoan otherwise than by absolute assurance thereof and held or other grant, will, conveyance, lease, assurance or other deed or document that by him or any Samoan successor in title for such or any lesser such land or interest in such land be held in accordance with the customs and estate or interest; usages of the Samoan people; (c) any leasehold interest in Samoan land held by a Samoan under a (c) any land ordered by the Court to be customary land under section 9; lease executed by the High Commissioner either before or after (d) any land conveyed by Government or any public body by way of deed which the commencement of this Ordinance under the powers vested provides that the land is held in accordance with the customs and usages of the in him by subsection (4) of section 280 of the Samoa Act 1920. Samoan people.
21. Any Samoan who claims the ownership of any Samoan land or the 10. Surveys – (1) Whenever the Registrar is of the opinion that a survey is control of any Samoan name or title either in his sole right or on behalf necessary to define any land or boundary the subject of a petition under this Act or of any Samoan title family, village or district, may give notice of such in respect of which an application for a pulefaamau has been made, the Registrar claim (hereinafter called a “Pulefaamau”) to the Secretary or to the may request the Chief Executive Officer of the Ministry responsible for Lands to Administrative Officer, Savaii. survey such land or boundary at a time to be appointed by the Chief Executive Officer.
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27. In this part of this Ordinance where not inconsistent with the 20. Definition of rightful holder – In this Part, unless the context otherwise context, “Rightful Holder” means a person appointed the holder of a requires, “rightful holder” means a person who: Samoan name or title by and in accordance with the customs and usages (a) has been appointed the holder of a matai name or title by and in accordance of the Samoan people and includes a person who has been appointed with the customs and usages of the Samoan people, including appointment in thereto in pursuance of a judgment of the Land and Titles Court or of an pursuance of a judgment of the Court, or of an interim order made under the interim order made under the provisions of this Ordinance. provisions of this Act.
28. Any person other than the rightful holder who uses a Samoan name 21. Wrongful user an offence – A person other than the rightful holder who uses a or title or permits himself to be addressed by a Samoan name or title or matai name or title, or permits himself or herself to be addressed by a matai name otherwise acts as the holder of a Samoan name or title shall be guilty of or title, or otherwise acts as the holder of a matai or title, commits an offence and is an offence and liable to imprisonment for twelve months. liable upon conviction to imprisonment for 12 months.
30. There shall be kept in the Court by the Registrar a Register of Matais 22. Register of Matais – (1) There shall be kept in the Court by the Registrar a and title holders to be called the “Register of Matais” in which shall be register to be called the Register of Matais, and no entry shall be made or deleted entered the names of such persons as are from time to time appointed from the Register except by the Registrar, or by his or her direction. the rightful holders of Samoan names or titles in accordance with the (2)There shall be entered in the Register, under this Part, the names and titles of provisions of this Part of this Ordinance together with such particulars such persons as are the rightful holders of Land and Titles Act 1981 13 as may from time to time be prescribed. (2)There shall be entered in the Register, under this Part, the names Samoan names or titles, together with such other particulars as may be prescribed and titles of such persons as are the rightful holders of Samoan names by any rules, and if none, by the Registrar. or titles, together with such other particulars as may be prescribed by (3)The Registrar shall cause the name or names of any person to be deleted from any rules, and if none, by the Registrar. the Register if: (3)The Registrar shall cause the name or names of any person to be (a) it is proved to the satisfaction of the Registrar that that person has died, or has deleted from the Register if: vacated the matai name or title in question, or that the entry was made pursuant to (a) it is proved to the satisfaction of the Registrar that that person has an incomplete or defective folio forwarded by a Sui-o-le-nuu under the provisions died, or has vacated the matai name or title in question, or that the entry of section 23(2), or that the entry was otherwise made in error; or was made pursuant to an incomplete or defective folio forwarded by a (b) the deletion is directed by an order of the Court; or Sui-o-le-nuu under the provisions of section 23(2), or that the entry was (c) the deletion is requested in writing by the holder of the matai name or title. otherwise made in error; or (4) Where the Registrar is satisfied that the appointment to a matai name or title (b) the deletion is directed by an order of the Court; or has not been made in accordance with the customs and usages of the Samoan (c) the deletion is requested in writing by the holder of the matai name people the Registrar shall prepare sign and file a petition for the Court to determine or title. whether or not the matai name or title in question should be deleted from the (4) Where the Registrar is satisfied that the appointment to a matai Register, and the petition is treated, with any necessary modification, as if it were a name or title has not been made in accordance with the customs and petition filed under section 42
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usages of the Samoan people the Registrar shall prepare sign and file a petition for the Court to determine whether or not the matai name or title in question should be deleted from the Register, and the petition is treated, with any necessary modification, as if it were a petition filed under section 42
31(2) It shall be the duty of the Pulenu’u of every village whenever he 23. Duties of appointee, Sui-o-le-nuu and Registrar – (1) A Samoan who is, after has knowledge that ceremony of appointment to a Samoan name or title the coming into force of this Act, appointed to be the holder of a matai name or title has been held in his village (whether by receipt of a notice as prescribed (in this section referred to as “the new appointee”), shall, within 7 days of the by the preceding subsection (1) of this section… holding of the traditional ceremony of appointment, give notice in writing to the Sui-o-le-nuu of the village in which that ceremony was held, and to the Registrar.
50. Sittings of the Court shall be held at such times and at such places as 39. Sittings of the Court – (1) The time and places of sittings of the Court are the [President] shall by warrant under his hand appoint: determined by the Registrar after consulting the President. Provided that the Court may itself from time to time adjourn any sitting (2) The Court itself, while sitting to hear any matter, may adjourn the hearing to or the hearing of any case to any other time or place. any other time or place. (3) Two or more Courts constituted in accordance with this Act may sit at the same time in the same or different districts, and each Court shall have all the powers and jurisdiction of the Land and Titles Court.
51. Notice of every sitting of the Court shall be published in the “Savali” 40. Notice of sittings to be published – Notice of a sitting of the Court is to be at least twenty-one days before the commencement of each sitting. published in the Savali at least 21 days before the commencement of each sitting.
52. Every such notice shall be in the form numbered 4 in the First 41. Form of notice – A notice shall be in the form numbered 3 in Schedule 2 and Schedule hereto and shall state – shall state: (a) The time and place of the sitting; (a) the time and place of the sitting; and (b) The names of the assessors appointed for the sitting; (b) the names of the parties to each petition, application, appeal or other (c) The names of the Samoan judges appointed for the sitting; proceedings to be heard at the sitting, and the nature of the relief sought. (d) The names of the parties to each petition to be heard at the sitting and the nature of the relief sought thereby.
54 (2) In arriving at the final decision every assessor and Samoan judge 63 (2) In arriving at the final decision, a Samoan Judge and Assessor hearing the hearing a petition shall have an equal voice petition shall have an equal voice.
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55. [Subject to section 54 of this Ordinance the concurrence of the 64. Concurrence of Samoan Judges and Assessors not necessary – Subject to assessors and Samoan judges shall not be necessary for any act of the section 63, the concurrence of the Samoan Judges and Assessors shall not be Court and the jurisdiction of the Court shall be exercised in the same necessary for any act of the Court, and the jurisdiction of the Court shall be manner as if it was sitting without assessors or Samoan Judges. exercised in the same manner as if it was sitting without Samoan Judges or Assessors.
56. The final decision of the Court on a petition filed as aforesaid shall 67. Form of final decision – The final decision of the Court shall be drawn up be drawn up under the Seal of the Court and the hand of the President under the seal of the Court and the hand of the President or Deputy President, and and such of the assessors [and Samoan judges] as concur therein and the Samoan Judges and Assessors that concur in the decision, and shall be in the shall be in the form numbered 5 in the First Schedule hereto. form numbered 6 in Schedule 2.
58. Every final decision of the Court on a petition filed as a foresaid shall 70. Effect of final decision – Subject to an appeal under Part 9, every final decision be deemed to be a judgment in rem and shall bind all Samoans who are of the Court on a petition is deemed to be judgment in rem and shall bind all interested therein whether parties to the proceedings or not. Samoans who are affected by it, whether parties to the proceedings or not.
69. Every person commits an offence and is liable to a fine of fifty 75. Offences – (1) A person commits an offence and is liable upon conviction to a pounds or to imprisonment for six months who: fine of 5 penalty units or to imprisonment for 6 months who: (a) disobeys any judgment or order of the Court, or any order of the (a) disobeys any decision or order of the Court, or any order made under section 49 Registrar or Deputy Registrar or of the Secretary or Administrative or 50; Officer, Savaii made in pursuance of this Ordinance; (b) uses any abusive, insulting, offensive or threatening words or behaviour in the (b) uses any abusive, insulting, offensive or threatening words or presence of the Court, or writes any such words to a member or officer of the Court; behaviour in the presence of the Court, or writes any such words to a (c) assaults, resists, obstructs, or incites any other person to assault, resist, or member or officer of the Court; obstruct, any constable, surveyor, or officer of the Court in serving any process of (c) assaults, resists, obstructs, or incites any other person to assault, the Court or executing any decision or order of the Court, or any order made under resist, or obstruct, any constable, surveyor, or officer of the Court in section 49 or 50; serving any process of the Court or executing any judgment or order of (d) by any words or behaviour obstructs in any manner the proper and orderly the Court, or any order of the Registrar or Deputy Registrar or of the administration of justice in the Court; Secretary made in pursuance of this Ordinance; (e) fails to appear on a summons relating to the hearing of any proceedings before (d) by any words or behaviour obstructs in any manner the proper and the Court; orderly administration of justice in the Court; (f) being a party to a petition, fails to be present at the time and place appointed for (e) fails to appear on a summons relating to the hearing of a petition; a survey under section 10. (f) being a party to a petition, fails to be present at the time and place appointed for a survey under section 75. (2) Proceedings for an offence under this Act are to be taken in the District Court.
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70. Proceedings in respect of every offence under the last preceding clause shall be taken in the High Court.
75: (1) Whenever the Secretary is of the opinion that a survey is 10. Surveys – (1) Whenever the Registrar is of the opinion that a survey is necessary to define any land, the subject matter of a petition under this necessary to define any land or boundary the subject of a petition under this Act or Ordinance or in respect of an application for a “Pule faamau” under Part in respect of which an application for a pulefaamau has been made, the Registrar V of this Ordinance he may direct the Chief Surveyor to cause such may request the Chief Executive Officer of the Ministry responsible for Lands to survey to be made on a day to be appointed by the Chief surveyor. survey such land or boundary at a time to be appointed by the Chief Executive Officer.
Appendix A (2) – Differences between the LT Ordinance 1934 LT Act 1981
Land and Titles Protection Ordinance 1934 Land and Titles Act 1981
Part I – Town Area of Apia 26B. Oath of Office – The person or Samoan Judge appointed as President under Section 3: Any Samoan claiming to be the beneficial owner of Samoan land section 26A shall take and subscribe before the Head of State the same oath as a situated in the Town Area of Apia and desiring to make an alienation Judge of the Supreme Court before assuming the functions of the office of thereof may apply in writing to the Secretary for the authority of the High President. Commissioner to make the proposed alienation. 32. Salaries and allowances – A Deputy President, Samoan Judge and Assessor Section 4: Every application under the last preceding section hereof shall shall be paid out of moneys appropriated by the Legislative Assembly such be in such form and contain such particulars as the Secretary shall salary, allowance or other benefit, travelling expenses and other costs as may be prescribe. fixed by the Head of State by order, acting on the advice of Cabinet, after Cabinet has received the recommendations of the Judicial Service Commission. Section 5: The Secretary upon being authorised so to do by the High Commissioner shall publish in the Savali such particulars as the High 72. Orders as to costs – (1) In any proceedings the Court may make such order Commissioner may direct of each application made to him under section 3 as it thinks just as to the payment of the costs of the proceedings, or of any hereof. matter incidental orpreliminary to the proceedings, by or to any person who is a party to the proceedings. Section 6: Every publication as aforesaid shall contain a notice fixing a (2) If the Court is of the opinion:
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time or period not being less than three months from the date of the (a) that any proceedings is frivolous or vexatious; or publication not later than or within which and a place at which objections (b) that any petition, claim, action, application or objection in respect of the to the proposed alienation may be lodged by any Samoan who claims to be proceedings is frivolous or vexatious, – affected thereby. it may, if it thinks fit, irrespective of the result of the proceedings, allow any party the whole or any part of his or her costs in defending or disputing the Section 7: (a) All objections (other than those touching or affecting the frivolous and vexatious proceedings. ownership of the land proposed to be alienated) shall be determined in (3) In any proceedings and at any stage of the hearing, the Court may require such way as the High Commissioner shall direct. any party to deposit any sum of money as security for costs, and in default of making the deposit the Court may stay the proceedings either wholly or in (b) The Secretary shall as soon as conveniently may be after receiving any respect of the party in default. objection touching or affecting the ownership of the land proposed to be (4) The sum deposited is disposed of in such manner as the Court directs. alienated prepare sign and file a petition to the Land and Titles Court for the purpose of determining such objection. 73. Commencement of orders – (1) An order made by the Court shall take effect on a date or dates to be specified in the order. Section 8: When all objections to the application to alienate have been (2) In the absence of any specified date, an order takes effect on the date on disposed of as aforesaid (or if no such objections have been lodged within which it is made. the time or period fixed in that behalf) the High Commissioner upon being satisfied that the proposed alienation is in the interest may by warrant under his hand authorise the said alienation subject however to such terms conditions and modifications as he may think fit to impose and thereupon it shall be lawful at any time within one year of the date of the warrant to make such alienation but subject to any terms and conditions so imposed and in any modified form required by the warrant.
Part II – Sale of Samoan Land to Samoans 74. Enforcement of decisions and orders of the Court – (1) A decision or Section 9: Any Samoan claiming to be beneficial owner of Samoan land order of the Court shall been forced in and by the Supreme Court or, as the case situated whether in the town area of Apia or elsewhere and desiring to may be, by the District Court. make an alienation thereof to another Samoan may apply in writing to the (2) For the purposes of subsection (1): Secretary for the authority of the High Commissioner to make the proposed (a) a decision or order of the Court is taken to be a judgment or order of the alienation. Supreme Court or, as the case may be, of the District Court; and (b) a rule of procedure of the Supreme Court or the District Court, and an Section 10: The provisions of sections 4 to 8 hereof (inclusive) shall apply enactment, with the necessary modifications, apply to a decision or order of the to every application under the last preceding section hereof. Court, as if the decision or order were a judgment or order of the Supreme Court or, as the case may be, the District Court.
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Section 11: Any land alienated under the provisions of this part of this (3) A sealed copy of the decision or order to be enforced under this section is to Ordinance shall remain Samoan land. be filed in the Supreme Court, or the District Court.
Part III – Alienations by way of lease 76. Right to Appeal – (1) Subject to subsection (2), a party to any proceedings Section 12: Whenever any Samoan claiming to be the beneficial owner of may appeal against any final decision or order of the Court. Samoan land is desirous that the High Commissioner should grant a lease (2) There is no right of appeal against a decision or order made under section thereof or any part thereof under the powers vested in him by subsection 49,50, 72(2), or 75. (4) of section 280 of the Samoa Act 1921, such Samoan shall make application in that behalf to the Secretary and the provisions of Part I 77. Constitution of Court to hear appeals – (1) The Court to hear any appeal hereof shall apply (mutatis mutandis) to every such application. consists of: Provided that: (a) the President; and (i) if the beneficial order shall have made or shall make a second or any (b) two Samoan Judges appointed by the President. subsequent application in that behalf the provisions of sections 5 (2) The Samoan Judges shall be appointed in respect of each appeal, being Judges and 6 hereof shall not apply thereto if – who had not been members of the Court at the hearing of the petition in the (a) particulars of the first of such applications have been duly matter on appeal. published in the ‘Savali’ and (3) So far as is practicable, the President shall be the Chief Justice or other Judge (b) the beneficial owner or (in case there be more than one) the of the Supreme Court who had not been a member of the Court at the hearing of beneficial owners at the time of such second or subsequent the petition in the matter on appeal. application are the same person or persons respectively as the (4) The Court hearing an appeal has all the powers and jurisdiction of the Land beneficial owner or owners who made the first of such and Titles Court. applications. (ii) the provisions of sections 5 and 6 hereof shall not apply in respect of any land held pursuant to a decision of the Land and Titles Court.
Part VIII – Wills of Samoans and Intestate Succession (*this whole Part was repealed by section 23 of the Wills Act 1975).
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Appendix B – General: SC and LTC Case Review
SUPREME COURT CASE LAW ON LTC MATTERS, JUDICIAL REVIEW OF LTC DECISIONS, VILLAGE FONO DECISIONS; ARTICLE 4 PROCEEDINGS; DECLARATORY JUDGMENTS ACT 1988 ETC (1980-2017)
NO YEAR CASE LAW LAW BRIEF ANALYSIS 1. 1980 Tuivaiti v Article 11, Village Fono decision challenged- This is the 1st recorded case where the Village Fono’s Faamalaga Constitution decision (to banish P) from the village for failure to attend church, was heard by the court. It did [1980] WSSC 2 17 not discuss the jurisdiction of the SC or LTC. The Court commented that the freedom to practice December 1980 religion (Article 11) is the freedom not to practice any religion at all. It held that since independence, the VF has no power to enforce attendance at church or choir practice, or to compel contribution towards any church project…etc. 2. 1992 Alaelua v LTC, Article 4, LTC decision cannot be reviewed by the Supreme Court- This is the first case that discussed Supreme Court (Constitution) the jurisdiction of the Supreme Court to review decisions of the Land and Titles Court. It held that 18 June, 16 July Constitution the ouster clause in the LTC Act (s 71) prevents the Supreme Court from reviewing Land and 1992 Section 71, Land Titles Court decisions. The Land and Titles Court is a unique court but not an inferior court. Any and Titles Act review must be done by the Appellate Court of LTC, not the Supreme Court. 1981 Section 4, Declaratory Judgments Act 1988 3. 1992 Alaelua v LTC, - Court of Appeal, by consent, appeal allowed, certain clauses of the Statement of Claim of the COA Plaintiffs were struck off and leave was granted to the Plaintiff to amend Statement of Claim (to Supreme Court follow up). 4. 1995 In re the Articles 4 & 13, The Court of Appeal saw no reason not to judicially review LTC decisions- The CA did not Constitution, Constitution consider section 71 (ouster clause) but proceeded with hearing the merits of the case. Taamale v Section 75, Lands It did not consider whether it had jurisdiction to judicially review a LTC decision. It saw no Attorney General and Titles Act jurisdictional reason not to judicially review the LTC decision to issue banishment orders. [1995] WSCA 1; 1981 02 1995B 18 August 1995
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5. 1998 Lia Aloimaina & Unreported Overturned the Alaelua case- Reversed the Alaelua (1992) decision and said that the LTC is an Ors v LTC inferior court in a judicial review sense. It disagreed with the Alaelua decision and held that the (Tuasivi), SC can review decisions of the LTC in cases where the LTC has breached fundamental rights Toomata Ropati in the Constitution. It is only when Part 2 of the Constitution is breached. But what of issues & Ors, Aloimaina outside Part 2? Elekana WSSC 4 November 1998 J Young: “for the purpose of review proceedings the Land and Titles Court is an inferior court.” 6. 2000 Sefo v LTC [2000] Articles 4, 11, 12, Supported and followed principle in Aloimaina’s case. Supreme Court 13 and 73, July 2000 Constitution Section 71 of the Land and Titles Act 1981 does not operate to oust the jurisdiction of the Supreme Court when a decision of the LTC is said to be a nullity on account of an infringement of Sections 4 & 11, Part II of the Constitution; the Supreme Court retains a supervisory jurisdiction in relation to Declaratory alleged infringements of the Constitution and, to that extent, to review decisions of the LTC (see Judgments Act Article 4(2) of the Constitution). 1988 "This Court has a restricted jurisdiction to hear and determine questions as to the jurisdiction of the Land and Titles Court. The restricted jurisdiction is confined to the issue of whether Part II of the Constitution has been or is likely to be breached (See Aloimaina Ulisese and Others v Land and Titles Court and Others (unreported decision of the Supreme Court dated 4 November 1998)). 7. 2003 Lafaialii v Articles 4 & 11, Court upheld the supremacy of the Constitution (Part II) - It did not discuss any case law but it Attorney General Constitution held that decisions and actions by Alii and Faipule of Faleaulupo in ordering the bible studies to [2003] WSSC 8 cease its religious activities, banishing the plaintiffs from their families in Falealupo and also (24 April 2003) dismantling the building where the bible classes were held at, were in serious violation of the Plaintiff’s freedom of religion guaranteed by Article 11 of the Constitution. 8. 2004 Toailoa v LTC Article 9, Supported and followed principle in Aloimaina’s case. [2004] WSSX 33 Constitution 11 May 2004 Sections 34 & 71, Though the Court did raise a question in which it left open which was “whether section 71 of the Lands and Titles LT Act 1981 ousts the jurisdiction of the SC to review the decisions of the LT Court where the Court Act 1981 allegations fall outside breaches of fundamental rights as per Part 2 of the Constitution. This was also a question left answered in the Aloimaina case 9. 2004 Leituala v Mauga Article 13, EDs Analysis: [2004] WSSC 9 Constitution The Supreme Court’s jurisdiction over LTC decisions on Part II Constitution was not discussed (13 August 2004) Village Fono Act and didn’t seem to be an issue – seems like it was already established law. 1990
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10. 2007 Asiata v Asiata Article 4, Agreed with principle in Aloimaina’s case. [2007] WSSC 4 (2 Constitution February 2007) Part II, The Court did state that it rejected the argument by the defendants that the LTC is exclusively Constitution where this dispute belongs and should be tried. Irrespective of whether or not there are proceedings pending contemplated or even issued in the Lands & Titles Court an aggrieved party can at any time come to the Supreme Court for orders to safeguard his constitutional rights "by appropriate proceedings" as provided for by Article 4(1) of the Constitution. 11. 2011 Rimoni v Articles 4, 9, 103, Agreed with principle in Aloimaina’s case although it dismissed the appeal on the grounds that President of the Constitution no cause of action is disclosed. Land and Titles Sections 71, 79, 81 Court [2011] Land and Titles Section 71 of the Constitution is subject to the Constitution – as CJ referred to in Alomaina Ulisese WSSC 88 (8 Act 1981 v Iva Alomaina & Others (unreported 1998) August 2011) "In my judgment, therefore, the Supreme Court has jurisdiction at common law to review the decision of the Land and Titles Court in this case on the grounds of procedural fairness and illegality. But since procedural fairness is embodied in the concept of the right to a fair trial under Article 9 of the Constitution, I would expect that applications for review for breach of procedural fairness in relation to proceedings before the Land and Titles Court would be brought mainly under Article 4 of the Constitution rather than at common law."
12. 2011 Amoa v Land and Article 4, Developed a new issue to decide on the jurisdiction of the Supreme Court to review the Titles Court Constitution decisions of Land and Titles Court– i.e. “whether the Supreme Court has jurisdiction to review [2011] WSSC 89 Section 34, Land decisions of an inferior court on common law grounds where there is a privative or ouster clause.” (17 August 2011) and Titles Act 1981 CJ: Section 71, Land S.71 of the Land and Titles Act 1981 does exclude the jurisdiction of the Supreme Court to and Titles Act review a decision of the Land and Titles Court which is an 'inferior' Court on common law 1981 grounds. However, the privative clause will be ineffective if a common law ground forms part of a breach of a fundamental right provision in Part II of the Constitution: Aloimaina Ulisese v land and Titles Court (1998) (unreported judgment of Young J delivered on 4 November 1998); Sefo v Land and Titles Court [2008] WSSC 32; Corporation of the Presiding Bishop of Latter Day Saints v Land and Titles Court (2000) (unreported judgment delivered on 22 November 2000).
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13. 2012 Penaia II v Land Article 4 – It seems the courts agree with Aloimaina’s case where the Constitution allows for a matter and Titles Court Remedies for to be reviewed. [2012] WSCA 6 enforcement of (31 May 2012) rights But a further development in this case is that Court of Appeal of Samoa Article 6 – Right to Both the language and provenance of ss34(2), 70 and 71 point to stringent exclusion of judicial personal liberty review save to the extent permitted by the Constitution.
Article 9 – Right to Even without ss 34(2), 70 and 71 there would be powerful reasons for the courts of general a fair trial jurisdiction to be reluctant to intervene in disputes arising from decisions of the Land and Titles Court. The first principle of justice is that a court be competent to decide the case. The raison Sections 34, 70, d’être of the Land and Titles Court is to provide that competence, bringing to disputes concerning 71, Land and Samoan custom and usage the expertise of Judges versed in such matters so they can evaluate Titles Act 1981 what answer is most in keeping with the justice of the case according to Samoan values. Such expertise can be gained only from a life-time’s exposure to Samoan culture, which in the courts of general jurisdiction may be, and in this Court, as constituted for this appeal, is wholly absent.
14. 2012 Mapuilesua v Article 4 – Followed Penaia’s decision. No fundamental right was breached. Land and Titles Remedies for Court [2012] enforcement of The Chief Justice rejected the appellant’s contention that the appellant has fundamental rights WSCA 7 (31 May rights under the Constitution of the State of Samoa which, it is common ground, to the extent of any 2012) Article 6 – Right to conflict overrides these sections. We agree with the conclusion of the Chief Justice. personal liberty Article 9 – Right to a fair trial Section 70, Land and Titles Act 1981 Section 71, Land and Titles Act 1981 15. 2014 Malifa v Article 4, Appeal was dismissed but did cite Aloimaina’s case v LTC (1998) and Penaia II v Land and President Land Constitution Titles Court [2012] in that the Supreme Court can only review decisions of LTC if fundamental
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and Titles Court Article 9, rights under Part II of the Constitution are breached. In this case, there was no breach as the [2014] WSSC 170 Constitution Applicant was given the right to respond to the issues and what their argument is. (17 April 2014) Sections 34, 71, 90 Discussed CJ’s decision on common law grounds for review in Amoa’s case. Land and Titles Act 1981 16. 2016 Tuigamala v Article 4 – Aloimaina’s position is well established and applied throughout by the Courts. Appellate Remedies for Division of the enforcement of It is well established that the decisions or orders of the Land and Titles Court pursuant to section Land and Titles rights 71 Land and Titles Court Act 1981 cannot be reviewed or challenged by way of appeal prerogative Court and Sections 34, 70, 71 writ or otherwise whatsoever. Vaosaoalii [2016] Land and Titles WSSC 90 (10 June Court 1981 It is also well established that section 71 Land and Titles Act is over-ridden by article 4 of the 2016) Constitution which provides remedies for enforcement of fundamental rights so that the Supreme Court has jurisdiction to review decisions of Land and Titles Court when it is alleged that there has been a violation of the applicant’s constitutional rights to a fair trial pursuant to article 9(1) of the Constitution. 17. 2016 Tanielu v Article 4 – Aloimaina’s position is well established and applied throughout by the Courts. Appellate Remedies for The court’s jurisdiction regarding strike out application is well settled. Division of the enforcement of It is settled law that the Supreme Court has jurisdiction to judicially reviewed decisions of the Land and Titles rights Land and Titles Court but only where there has been a violation of the Applicants right to a fair Court [2016] Section 71, Land trial under Article 9 of the Constitution. WSSC 113 (15 July and Titles Act 2016) 1981
18. 2017 Silipa v President Article 9, The Supreme Court is judicially reviewing decisions of the LTC where there is a breach of of the Land and Constitution fundamental rights under the Constitution. This is established law and the Supreme Court does Titles Court Article 15, not hesitate to do so. [2017] WSSC 32 Constitution (28 April 2017) Declaratory Decision of the SC: Judgments Act 1) The withdrawal of the appeal is an abuse of process which had the effect of depriving the 1988 applicants of their constitutional rights to a fair trial and it is set aside as invalid. The matter is remitted back to the LTC for the applicants to be joined as parties to the appeal and the application for leave to appeal and for that application for leave to appeal to be heard and
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determined on its merits.
19. 2017 Esekia v Land Article 4, Did refer to Aloimaina’s case that decisions of the LTC could be reviewed for alleged breach of and Titles Court Constitution any fundamental rights under Part II of the Constitution. [2017] WSSC 145 Article 9, The applicants right to a “fair hearing” and his right to trial “by an independent and (9 November Constitution impartial tribunal” under article 9(1) of the Constitution have been blatantly and 2017) egregiously breached by Vice President Fuimaono presiding in their matter. 20. 2018 - Attorney Article 9, Decisions of the LTC that are judicially reviewed by the SC can ultimately be appealed to the COA General v Constitution by virtue of the LTC decisions being heard in the SC. COA sees no reason to not review them as Malifa [2018] Article 103, that is the role of the COA (decisions of the SC can be appealed to COA). WSCA (13 Constitution By virtue of section 34 (Land and Titles Act 1981) the dispute lies within the exclusive jurisdiction April 2018) Sections 25, 26, 27, of the LTC. Neither the Supreme Court nor the Court of Appeal is permitted to make a declaration 28, 29, 30, 31, 34, as to the right to institute proceedings in the LTC. 35, 38, 42, 43, 49, 71, 91, Land and Titles Act 1981 Parts III, IV, V, VI, LT Act 1981 Declaratory Judgments Act 1988 21. 2018 Land and Titles Article 9, COA can hear and review decisions of the LTC as such decisions are judicially reviewed by the SC. Court v Lautogia Constitution It appears the SC can somewhat dictate how the LTC operates. SC has gone further to say a judge [2018] WSCA 4 of the LTC is a trained judicial officer. Where there is a breach of fundamental rights under the Constitution, the formal courts will not hesitate to review decisions of the LTC.
Nb: Are Judges of the LTC given the same weight and status of judges of the formal courts in everything?
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22. 2019 Saeni v Fa’alafua Article 4, It is established law that the Supreme Court has jurisdiction to intervene in exceptional [2019] WSCA 3 Constitution circumstances i.e. where there is a breach of the Constitution (paragraph 31). Where this occurs, (15 April 2019) Article 9, the Constitution requires “the Supreme Court to step in and provide a remedy for the breach”. Constitution Article 103, The COA agrees with the SC that “The LTC does not have the jurisdiction to cancel a lease of Constitution customary land once it has been granted by the Minister. This ground of appeal fails.” Sections 4, 5, 6, 8, 9 & 10, Alientation of Customary Land Act 1965 Sections 34, 38, 42, 43 & 71, Land and Titles Act 1981.
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Appendix C – SC & COA Judicial Review of LTC Decisions
No. Case Page no.
1. Alaelua (Va’alepa Sale’imoa Va’ai) & Others v LTC & Others [1992] SLR 3; [1980 – 45 1993] WSLR 507 (6 July 1992) 2. Alaelua (Va’alepa Saleimoa Vaai) & Others v LTC & Others 1992 WSCA [1992] SLR 45 6; [1980 – 1993] WSLR 531 (11 Nov 1992) 3. Ulisese v LTC (1998) WSSC 46 4. Sefo v Attorney General [2000] WSSC 47 (12 July 2000) 46 5. Lafaialii v Attorney General [2003] WSSC 8 (24 April 2003) 46 6. Suemalo Kasimani Lautusi & Ors v Attorney General & Ors 2003 46 7. Toailoa v LTC [2004] WSSC 33 (11 May 2004) 47 8. Peniamina v LTC [2004] WSSC 12 (14 September 2004) 47 9. Punafelutu Maiava RS Toailoa v Sapolu CJ & Sua Rimoni 2004 48 10. To’ailoa v Sapolu [2006] WSCA 1 (16 April 2006) 48 11. Asiata v Asiata [2007] WSSC 4 (2 February 2007) 48 12. Lauvai v LTC [2010] WSSC 185 (20 September 2010) 49 13. Ainu’u v LTC [2011] WSSC 36 49 14. Rimoni v President of the LTC [2011] WSSC 88 49 15. Penaia v LTC [2011] WSSC 84 (17 June 2011) 50 16. Sagato v LTC [2011] WSSC 79 (24 June 2011)` 50 17. Mapuilesua v LTC [2011] WSSC 131 (15 November 2011) 51 18. Amoa v LTC [2011] WSSC 77 51 19. Amoa v LTC [2011] WSSC 89 51 20. Penaia v President of the LTC [2012] WSSC 39 51 21. Penaia II v LTC [2012] WSCA 6 (31 May 2012) 52 22. Mapuilesua v LTC [2012] WSCA 7 (31 May 2012) 52 23. Malifa v President of the LTC [2014] WSSC 170 (17 April 2014) 53 24. Savea Sano Malifa v LTC & Ors [2014] WSSC 173 53 25. Tapusalaia Esekia v Appellate Division of the LTC [2016] WSSC 141 (4 Aug 2016) 54 26. Moala v LTC [2016] WSSC 70 (5 May 2016) 54 27. Tuigamala v Appellate Division of the LTC and Vaosaoalii [2016] WSSC 90 (10 June 55 2016) 28. Tanielu v Appellate Division of the LTC [2016] WSSC 113 (15 July 2016) 55 29. Akeimo v Appellate Division of the LTC [2017] WSSC 36 (10 may 2017) 56 30. Silipa v President of the LTC [2017] WSSC 32 (28 April 2017) 56
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31. Esekia v LTC [2017] WSSC 145 (9 November 2017) 56 32. Tanielu v Attorney General [2017] WSCA 3 (31 March 2017) 57 33. Lemalu Fa’alafua & Ors v LTC & Ors [2018] WSSC 1 (4 December 2018) - Unrptd 57 34. Lemalu Saeni & Ors v Lemalu Fa'alafua & Ors [2019] WSCA 3 (15 April 2019) 58 35 LTC et al v Lautogia et al [2018] WSCA 4 59
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35 SC & COA JUDICIAL REVIEW OF LTC DECISIONS (CASE LAW)
ANALYSIS: REVIEW 3
CASE LAW JUDGES / COUNSELS LAW/GROUNDS OUTCOME RELIED 1 Alaelua (V. ACJ Lussick Claim: HELD: Notice of Motion For Declaratory Orders is struck out. Sale’imoa Counsels L.R Va’ai - LTC breached section Va’ai) et al v for the plaintiff 47 of the Land and Titles (1) The LTC is a unique court, but not an inferior court; LTC et al M.B Edwards for Act 1981 (2) It has exclusive jurisdiction over Samoan titles and customary land; [1992]SLR 3; defendants - Section 37 of the Land (3) It has its own appeal procedure; [1980–1993] and Titles Act 1981 and (4) It governs a legal system different and separate from that of the WSLR - Article 9(1) of the Supreme Court; 507(6July Constitution. (5) The status of LTC and its President is equal in some respects to that 1992) of the Supreme Court and its Chief Justice. Village: (6) The LTC is the supreme authority for Samoan custom. Vaisala SC/CA: SC; 1992 2 Alaelua Morling, Ward and Sections 37, 47 of the HELD: THE appeal be allowed. (Va’alepa Muhammad JJ. Land and Titles Act Saleimoa Counsels: 1981 and Article 9(1) of The following Orders be substituted for the Orders of the Supreme Vaai) et al v Dr G.P. Barton, the Constitution. Court. LTC et al 1992 Queen’s Counsel and 1. The plaintiff’s notice of motion for Declaratory Orders under the WSCA[1992] Mr. L.R Vaai, for the Declaratory Judgments Act 1988, is struck out. SLR 6; [1980– appellants 2. Paragraphs 5.1,7,10,12,15 and 16.2 and Prayers (ii) and (iv) of the 1993] WSLR Mr. M.B. Edwards, for Plaintiffs’ Statement of Claim are struck out. 531 (11 Nov the first, second and 3. Leave is granted to the Plaintiffs to amend their statement of claim. 1992) third named Respondents. Village: Vaisala. CA; 1992
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3 Ulisese Justice R L Young Article 9(1), Part II of HELD: The SC can review decisions of the LTC where there is an Aloimaina v Counsels: the Constitution allegation of a breach of a fundamental right. Lands and G.Latu, first defendant 1. The Supreme Court can review decisions of the LTC where it is Titles Court K L Enari, second established that the LTC has breached Part II of the Constitution (1998) WSSC plaintiffs fundamental rights of a litigant. Village: V C Nelson, third 2. That for the purpose of review proceedings the Lands and Titles Samata-i-tai. defendants Court is an inferior court. I reach no conclusion as to the question of whether s 71 of the Lands and SC; 1992 Titles Court ousts jurisdiction of the Supreme Court to review the Lands and Titles Court decisions when the allegations fall outside breaches of fundamental rights as defined by Part II of the Constitution of Samoa. 4 Sefo v AG Wilson J Articles 11, 12, 13 and Judicial Review successful [2000] WSSC Counsels: 103 of the Constitution The Lands and Titles Court has jurisdiction (limited by Article 11) to 47 (12 July Mrs R. Drake, for the render decisions on matters relating to religious worship, provided this 2000) plaintiff doesn’t infringe Article 11. The Alii & Faipule of the village of Saipipi Village: Mr G. Latu, for the first have no power or authority to limit the number of churches in the village Saipipi Savaii defendant of Saipipi or to prohibit the plaintiffs from conducting bible classes or SC; 2000 Mr. S. Toailoa for the church services at Saipipi; and no jurisdiction or authority to prevent or second defendant. restrict a particular religion or religious instruction within the village of Saipipi; 5 Lafaialii v AG CJ Sapolu contravened the HELD: Judicial Review successful [2003] WSSC 8 Counsels: freedom of religion Orders: (24 April C Peter, for plaintiffs provided in Article 11 of (1) Certiorari to quash LTC decision of 23 March 2000 and 7 September 2003) A Lawson, for first the Constitution 2000, both decisions contravene the plaintiffs freedom of religion Village: and second provided in Article 11 of the Constitution. Falealupo defendants (2) All prosecutions are permanently stayed. Savaii Third defendant (3) The actions by the Alii and Faipule of Falealupo in dismantling the SC; 2003 made no appearance. bible class building are therefore declared unconstitutional. (4) The banishment by the Alii and Faipule of Falealupo, is declared void and of no effect. 6 Suemalo CJ Sapolu Article 9(1), Part II of HELD: Motion for judicial review dismissed. Kasimani Counsels: the Constitution Not only were the heirs of Siona well represented at the appeal Lautusi & Ors TK Enari for plaintiff hearing, but they also actually participated in the hearing and were v Attorney FA Ropati for second given adequate opportunity to present their view.
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General & Ors plaintiffs Thus even if the application by the heirs of Siona for separate 2003 (unrep LS Mulitalo for first representation was rejected by the Court, the heirs of Siona were SC) defendant actually given the opportunity to participate at the hearing and they Village: FP Meredith for did so. Lalomanu second defendants They were also given adequate opportunity to be heard by the Court on what they wanted to say and they were actually heard by the Court SC; 2003 on what they said. In this respect, I am of the clear view there was no breach of the plaintiff’s constitutional right to a fair trial. 7 Toailoa v LTC A E.Gaskell J. Article 9 HELD: Strike out motion by Defendants is dismissed. [2004] WSSC Counsels: Part II of the DECISION: 33 (11 May Mr. P Toailoa, Plaintiff Constitution The first, second and third Defendant’s applications to strike out the 2004) in person plaintiff’s statement of claim and notice of motion for judicial review are Title Panoa in Mr. D.M Clarke and dismissed. Savaii. Ms. Amoa for First and Second I find that the plaintiff’s action comes within the proper ambit of Article SC; 2004 Defendants 4 and that the proceedings are not inappropriate. …What the plaintiff Mr. Petaia for Third describes about the conduct of this dispute is a matter fit to be Defendant investigated, and I therefore dismiss the defendant’s application to strike out the plaintiff’s pleadings as vexatious or frivolous or as an abuse of process. 8 Peniamina v CJ Sapolu Violated the plaintiff’s HELD: Parts of the motion for judicial review are struck out. LTC [2004] Counsel: right to a fair trial For the foregoing reasons, the strike-out motion should succeed. WSSC 12 (14 TRS Toailoa for provided under Article 9 Accordingly, paragraph (c) of the amended motion which allege violation September plaintiffs of the Constitution. of the right to a fair trial under Article 9(1) of the Constitution and 2004) D Kerslake and L Vaa- grounds (3), (4), (5) and (6) of the amended motion for review which Village: Tamati for first complain of bias and breach of the constitutional right to a fair trial are Satupaitea defendant all struck out. Savaii Second defendants All in all then, paragraph (c) and grounds (3), (4), (5) and (6) of the SC; 2004 made no appearance amended motion for review as well as the amended statement of claim are all struck out. That leaves the plaintiffs to proceed with their amended motion for review on the basis of res judicata and lack or want of jurisdiction.
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9 Punafelutu Bisson J Article 9(1) of the HELD: Motion for judicial review is dismissed. Maiava RS Counsel: Constitution I have read the record of the hearing before the President and looking at Toailoa v TMP Toailoa it objectively I find absolutely no trace of bias, favouritism or Sapolu CJ, & Applicant in person accommodation for the Second Defendant’s views let alone anything Sua Rimoni T Malifa for the which shows a real likelihood or even a reasonable apprehension or 2004 Applicant suspicion of bias. BHeather-Latu Village: Madam Attorney Sa’asa’ai, General and D Clarke Faasaleleaga for 1st Respdt (Savaii) R Drake for the Second Respdt SC; 2004 10 To'ailoa v Ellis, Gallen, Article 9(1) of the HELD: The appeal is dismissed Sapolu [2006] SalmonHon JJs Constitution We are being asked to rule on a hypothetical issue. The general question WSCA 1 (26 Counsel: Mr. R S posed by the appellant does not arise from the decision the subject of April 2006) To’ailoa for the appeal. The Court has a discretion as to whether to answer a Appellant hypothetical question on an application for review. The Court’s primary Village: Mrs. B Heather-Latu role is to resolve existing disputes between parties where their decisions Sa’asa’ai, and Mr. D Kerslake for will have immediate and practical consequences for at least one of the Faasaleleaga the First Respondent parties. There are cases where answering a hypothetical question may (Savaii) Second Respondent in be entirely appropriate. We have concluded that this is not one of those person cases. CA; 2006 11 Asiata v Nelson J. Freedom of movement, HELD: Asiata [2007] Counsels: speech, assembly and Order for interim injunction against the defendants in dismissed. WSSC 4 (2 Counsels: Ms Fotu M association under February Vaai Hoglund for 1st Article 13(1) of the Is there in this case a serious question to be tried? I agree with plaintiffs’ 2007) & 2nd plaintiffs Constitution and counsel that proceedings involving alleged breaches of any of the Village: Mr George Latu for freedom of religion fundamental rights guaranteed by Part II of our Constitution clearly and Vaega, defendants under Article 11(1) of undoubtedly raise serious issues…. Satupaitea the Constitution. SC; 2007 It is clear from the facts no cause of action lies against the defendants for decisions made by the village council of Vaegā and if the law cannot give
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the plaintiffs a remedy, they are not entitled to obtain any interim relief. 12 Lauvai v LTC Vaai J. Article 9 Constitution HELD: The application for judicial review is refused. [2010] WSSC Counsel: P: TRS. Deputy President was The connection through his dead uncle, although distant, was 185 (20 Toailoa 1st related by blood to one nonetheless unknown to the President. September Respondent: D. of the prevailing parties, As Nelson J observed in Leleua v Land and Titles & others (unreported, 2010) Kerslake for the first should’ve disqualified Supreme Court of Samoa, 14/12/09) Village: respondent himself "We live in a country where everyone is related to each other in one way Vailoa, M. G. Latu for the or another, through blood lines, through titles, through marriage ...We all Aleipata second respondent know we do not associate on a regular basis will all persons we are A. Roma for the fourth related to or have connections with ...The point is this, there are people SC; 2010 respondent we are connected to in one way or another that we see all the time that No appearance by we carry on the business of life with on a regular basis. But there is also third respondent a very large amorphous group that we have essentially little or nothing to do with 13 Ainu'u v LTC CJ Sapolu Article 9 of the HELD: The applicant’s motion for judicial review and accompanying [2011] WSSC Counsels: Constitution. statement of claim should be struck out. 36 F K Ainuu for himself Common law grounds – Village: Leififi, as applicant illegality, irrationality DECISION: Apia K Seuseu and D (later withdrawn) and 2 issues in favour of the respondent’s motion to strike out: Kerslake for procedural impropriety (i) inordinate delay SC; 2011 respondent Delay is a factor which the Court may take into account in exercising its direction whether to grant of refuse remedy – depends on the facts of the case. An important consideration in the exercise of the Court’s discretion where delay is an issue is “prejudice” – to the respondent or a third party…. (ii) issue estoppel This principle ensures finality in litigation and to safeguard a party from being vexed or harassed twice in the same matter. This precludes the applicant from petitioning the LTC to re-litigate the same issue that has already been determined by the LTC in 1990. 14 Rimoni v Slicer J. Article 9 of the HELD: Application for Judicial Review struck out President LTC Counsels: Constitution (Right to a [2011] WSSC S Ponifasio for fair trial). Motion to Strike Out Successful 88 applicants Mandamus sought The Applicant is unable to engage Part II of the Constitution as a basis
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Village: Not K Seuseu and E against the President for judicial review of a decision made by the President as stated in mentioned in Schmidt for the letter of 10 February. case law, but respondent The Respondent has shown, in accordance with the Supreme Court applicant is (Civil Procedure) Rules 1980 Rule 70 that 'no cause of action is from Salani, disclosed.' Falealili The Motion to Strike Out is upheld. The Court accepts that the President took leave to consider or reconsider his earlier decision on receipt of letter from the applicant. He SC; 2011 did not act ultra vires or illegally.
15 Penaia v LTC Vaai J. Article 6 HELD: The Notice of Motion Judicial Review struck out [2011] WSSC LT Malifa for Article 9 84, 17 June Applicants (a) The Notice of Motion for Judicial Review and by Way of Application 2011 MTLui for First Applicants seek orders for Remedial Enforcement of Fundamental Rights is struck out. Respondents by way of mandamus or (b) The First, Second, Fourth and Sixth Respondents are entitled to costs Village: MV Peteru for Second certiorari to quash and of $500 each against the Applicants. Sa’anapu, Respondents or review those Safata TS Toailoa for Fourth decisions. They seek Respondents remedial enforcement of SC; 2011 A. Roma for Sixth the Applicants Respondents fundamental rights and liberties secured by Articles 6 and 9 of the Constitution as these rights are violated by those decisions. 16 Sagato v LTC CJ Sapolu Article 9 of the HELD: The applicant’s motion for JR was struck out. The strike out [2011] WSSC Counsels: Constitution has been motion should succeed. 79 (24 June S Ponifasio for violated by the LTC 2011) applicant (lack of service of Applicant: Village: M T Lui for first relevant documents; the Alleged breach of the applicant’s right to a fair trial under Article 9 Leulumoega respondent applicant was not given of the Constitution Second respondent in the opportunity to be Art. 9 is not concerned with a trial or a fair trial per se, but with a SC, 2011 person, took no part heard person’s right to a fair trial in determination of his civil rights and
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in proceedings obligations.
17 Mapuilesua v CJ Sapolu Article 6; Article 9; HELD: The applicant’s motion for JR is so clearly untenable that it cannot LTC [2011] Counsels: Illegality; irrationality possibly succeed. It is therefore struck out. WSSC 131 (15 L T Malifa for (a) The applicant’s right The applicant in his motion for review has not shown that he was November applicant to personal liberty deprived of his physical liberty in any way whether by arrest, 2011) M T Lui and L Vili for (Art. 6) breached. detention, or otherwise. Village: first respondent (b) The applicant’s right The Alii and Faipule of Gataivai had voluntarily withdrawn from the Gataivai M V Peteru for second to a fair trial (Art. 9) LTC proceedings, so they could not have been denied their right to a SC; 2011 respondents is also breached. fair trial. You cannot be denied of something you do not want.
18 Amoa v LTC CJ Sapolu Article 9 DECISION [2011] WSSC The Respondent erred The applicant’s motion for JR is not struck out, but the applicants are 77 Counsels in law; the decision is ordered to file and serve (by Monday, 14 Feb 2011) an amended motion Village: F Amoa for Applicants irrational; the for JR setting out with sufficient particulars the grounds of their motion Samusu M T Lui for Respondent did not as to fairly inform the Respondent of the nature of those grounds. SC; 2011 Respondent take into account The grounds for the causes of action pleaded in the Applicant's relevant statement of claim do not constitute any tort against the Respondent. considerations I have decided to uphold the Respondent's motion to strike out the The applicant also statement of claim as disclosing no reasonable cause of action but not seeks an order of the Respondent's motion for judicial review at this stage. certiorari. 19 Amoa v LTC CJ Sapolu Article 9 DECISION: The motion of judicial review was dismissed. [2011] WSSC Counsels: (a) Beached fair trial For that reason the LTC in para 10 (2) of its decision decided to vest the 89 F Amoa for applicants provided in Article 9 of pule of the title Amoa in the aiga potopoto of the title Amoa which was to Village: M T Lui and L Vili for the Constitution consist of all the parties before the LTC. In my respectful view, this was a Samusu respondent (b) The decision of the reasonable and sensible determination for the LTC to make, otherwise SC; 2011 LTC was irrational and the title Amoa would be without a pule which is something unheard of in in breach of the this country in respect of a matai title, especially such an important applicants constitutional matai title as the title Amoa right to a fair trial. 20 Penaia v Pres CJ Sapolu The grounds for motion HELD: As all the grounds in support of the applicant’s motion for review LTC [2012] Counsels: for JR are: are without substance without merit, the motion is struck out. WSSC 39 L T Malifa for (i) The 2009 decision DECISION:
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Village: applicant breached the 1. Breach of the applicant’s right to personal liberty under Article 6 Saanapu M T Lui and E applicant’s right to of the Constitution: Schmidt for first personal liberty In relation to the first ground in support of the motion for JR – There SC; 2012 respondent under Article 6(1) is nothing in the grounds of the applicant’s motion for review to Second respondents – of the Constitution. show that the applicant was deprived of his physical liberty. He was no appearance (ii) The 2009 decision not arrested, detained or in any other way deprived of his physical Third respondents – breached the liberty. no appearance applicant’s right to 2. Breach of the applicant’s right to a fair trial under Article 9 of the a fair trial in Constitution Article 9 of the On the second ground in support of the motion for JR – Counsel for Constitution the applicant did not point to any part or parts of Article 9 which had The 2009 decision was been breached or explain how they were breached. illegal and irrational at common law. 21 Penaia II v Baragwanath Article 6 of the HELD: The appeal was dismissed LTC [2012] Fisher Constitution Mulitalo The Supreme Court (Vaai J) struck out the application. This appeal is WSCA 6 (31 Galbraith Penaia had been against that strike-out decision. May 2012) Hon JJs “deprived of...personal But as the Constitutional Adviser, Professor Aikman, advised when he Village: lands liberty except in contributed to the 1960 Constitutional Debates, Article 6 concerns at Alofi and Counsels: accordance with law.” protection against wrongful detention of the person. That is made clear Tuugamauu L T Malifa for both by the apparent meaning of the text and by the context of the (village?) appellants following sub-clauses (2-4). They deal respectively with court release of D Kerslake and M Lui a person who is wrongfully detained, informing a person detained of the CA; 2012 for first respondent grounds of arrest, and bringing a detained person promptly before the Second, Third and court. Fourth Respondents Unrepresented 22 Mapuilesua v Baragwanath Article 6 & Article 9 HELD: The appeal was dismissed LTC [2012] Fisher This appeal was argued WSCA 7 (31 Galbraith immediately after For the reasons given in Mulitalo Penaia we have concluded that dilution May 2012) Hon JJs Mulitalo Tialino Saena of the rights of the appellant by increasing the number of persons Village: Counsels: Penaia II & Ors v The possessing status as true heir of Popolelemaveve and within the Gataivai L T Malifa for Land and Titles Court extended family of the title is not a “depriv[ation] of [the appellant’s] appellant CA7/11 in which the personal liberty” within the meaning of Article 6(1).
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CA; 2012 D Kerslake and M Lui same legal issues arose. In that decision we have further held that, in the absence of any plea of for first respondent The appeal fails for lack that the hearing before the Land and Titles Court was other than a M Peteru for second similar reasons to those “fair and public hearing within a reasonable time by an independent and respondent abides given in that decision impartial tribunal”, the absence of any right to challenge the decision of the decision of the delivered today. the Appeals Division in the Supreme Court does not infringe Article 9(1). Court That conclusion disposes of the appellant’s remaining argument. Article 4 of the Constitution to secure a remedy for alleged breach of rights under Articles 6(1) and 9. The 2009 decision was illegal and irrational at common law. 23 Malifa v Pres Nelson J. Article 9 HELD: the application for judicial review brought by the applicant has LTC [2014] Counsels: He seeks that the no prospect of success WSSC 170 (17 L T Malifa and A T decision of the Land and April 2014) Faleauto for applicant Titles Court of Appeal The applicants’ position in relation to the title Savea was better clarified Village: Afega, S Ainuu and S (that certain people are by Mr Malifa in oral argument. He said the breaches complained about Savea Title Faamausili for first the heirs to the Savea consisted of the Land and Titles Court applying wrong custom to the SC; 2014 respondent title) be quashed and/or point of inventing new customary practices M V Peteru for second set aside. As noted earlier it appears from the grounds of the application/motion respondent and first for review that the applicant is essentially questioning the findings and named third conclusions of the Land and Titles Court of Appeal in relation to the respondent geneaology of Ututa’aloga Leo’o whom he says died without issue and T S Toailoa for second from whom he says he is not descended. named third respondent Fourth respondents in person 24 Savea Sano Nelson J. Article 9 HELD: Malifa v LTC & Counsels: The courts written 1. I would grant leave on a “magnitude of the interests affected” basis. Ors [2014] L T Malifa for the decision dated 17 April Leave to appeal pursuant to section 45(3) was accordingly granted. WSSC 173 Appellant 2014 struck out the 2. Application to stay was refused.
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Village: Afega S Ainuu and S appellants ********** Of interest: Faamausili for the Motion/Application to The appellant now seeks to appeal that decision based on section 45(3) Village: Afega, First Respondent judicially review alleged of the Judicature Ordinance 1961 which provides: Savea Title No appearance breaches of the “45(3) - An appeal shall lie to the Court of Appeal from any decision of entered by other appellants fair trial right the Supreme Court in any proceedings under the provisions of Article 4 SC; 2014 Respondents. under Article 9 of the Constitution.” Leave to appeal was He argues his appeal lies as of right pursuant to section 51(a) of the granted. Was there an Ordinance and that pursuant to the proviso to section 54(1) the appeal? Supreme Court is mandated to grant leave to appeal. 25 Tapusalaia Vaai J. Article 9 HELD Esekia v S Ponifasio for (i) The President failed (i) The motion for judicial review is struck out. Appellate Applicant to consider the earlier (ii) Each party to pay its own costs. Division of the S Ainuu for First voluntary Land and Respondent disqualification by the Titles Court VPres prior to the 2013 [2016] WSSC hearing, and failed to Application for Judicial Review 141 (4 August give consider the 2016) applicant’s objection; The applicant seeks order to set aside and quash the leave to appeal Village: Siumu and (ii) the applicant’s ruling by the President and to rehear the leave to appeal application on SC; 2016 right guaranteed under the grounds: article 9 of the Constitution to a fair hearing by an independent and impartial tribunal has been breached. 26 Moala v LTC Constitutional right to a HELD: The application for Judicial Review was struck out. [2016] WSSC Nelson J. fair trial under article 70 (5 May Counsels: 9(1) On acquaintance and relationships arguments: In my view the wisp be 2016) L R Schuster for Pres Roma acquaintance imaginary. There is no substance in the argument. The application Village: Applicants with Moala Panoa and insofar as it relies on actual or perceived bias on the part of the presiding Faleula S Ainuu and E Soloi Loau Keneti – separate President fails. I turn now to the second ground advanced by the SC; 2016 for First Respondent parties in LTC and LTC Applicants. M V Peteru for Second CA matters.
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Respondents 1-14 Unfairness – the LTC: Even if this court disagrees with a decision T Leavai for Second reached by the Land and Titles Court at first instance or on appeal, Respondents 15-19 absent a Constitutional breach, this court is in no position to judicially review such a decision. Citing Penaia: “The consequence of such ouster provisions as ss34, 70 and 71 is that the Land and Titles Court may reach decisions with which the courts of general jurisdiction may disagree. But that is the price to be paid for the benefits of the regime.” 27 Tuigamala v Vaai J. Article 9 – 4 HELD: The notice of motion for Judicial Review was struck out Appellate Div LTC and J Brunt and T Tiotio Rule 195 Supreme Court 11. The principles applicable to the exercise of the court’s jurisdiction to Vaosaoalii for Applicants Civil Procedure Rules strike out a Statement of Claim and a notice of motion are well [2016] WSSC S Ainuu and R 1980 (a) The first documented and are not in dispute. 90 (10 June Masinalupe for First respondent is an 12. It was blatantly obvious that counsel for the applicant had not read 2016) Respondent inferior court and its the decisions of the Court of Appeal in Penaia v Land and Titles Court A Faasau for Second decisions are reviewable (2012) WSCA 6 and Malifa v Land and Titles Court (2014) WSCA 11. Village: Leo’a Respondents by this court pursuant He in fact conceded during oral submissions he did not. The two land Vailuuta to rule. judgments were cited by Counsel for the first respondents in his written SC; 2016i (b) The decision submissions. I urge and invite counsel for the applicants to read those violates the applicants’ decisions. They provide a complete answer to his notice of motion for right to a fair trial judicial review which must be struck out. There is also a recent decision through an incomplete of Nelson J in Moala v Land and Titles Court (5th May 2016) investigation by the first concerning the very same issues. respondent of the appeal by the second respondents. 28 Tanielu v Article 9 HELD: The notice of motion for Judicial Review was stuck out. Appellate Div Tuatagaloa J The Statement of Claim to accompany the motion for judicial review was LTC [2016] Counsels: struck out. WSSC 113 (15 I Sapolu for The Applicants were heard in the LTC 1988 and were also heard in LTCA July 2016) Applicants 1995. They have had access to the LTC of first instance and LTC appeal Village: S Ainuu & E Soloi for level on the same issue. There are no violations of their right under Vaisala and First Respondent Article 9 of the Constitution. Auala
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SC; 2016
29 Akeimo v CJ Sapolu Article 9 of the HELD: Motion for Judicial Review struck out Appellate Div Counsels: Constitution. Claim: the LTC [2017] F K Ainuu for President of the LTC Taking into account all of those circumstances, there could not be WSSC 36 (10 applicants should not have perceived that there was a ‘real danger’ of bias on the part of the May 2017) S Ainuu for the first presided at the hearing President of the LTC when he presided at the appeal hearing in 2013 and Village: Laupa’ respondent of the appeal as he is the leave to appeal hearing in 2012. of Faleula M V Peteru for second related to the leader of SC; 2017 respondents the second respondents who were the appellants at the appeal hearing. 30 Silipa v Pres CJ Sapolu Article 9(1) HELD: Motion for Judicial Review successful LTC [2017] Counsels: Article 15 WSSC 32 (28 F E Niumata and T The decisions of the first DECISION: April 2017) Peniamina for respondent (President (a) The withdrawal of the appeal is an abuse of process which had the applicants of LTC) were: effect of depriving the applicants of their constitutional rights to a fair Village: Savaia L Vili and G Fuimaono i. in breach of Article 9 trial and it is set aside as invalid. Lefaga for first respondent (1) of the Constitution (b) The decision of the first respondent of 22 April 2010 to grant leave to SC; 2017 Second respondent as to the right to a fair withdraw the appeal is declared invalid and is set aside. (passed away) trial; and (c)The decision of the first respondent of 24 May 2010 which in effect ii. Article 15 (1) as to denied the application by the applicants for them to continue the appeal freedom from filed by Fui Silipa and FP is also declared invalid and is set aside. discriminatory (d)The strike out motion is dismissed. legislation. The matter is remitted back to the LTC for the applicants to be joined as parties to the appeal and the application for leave to appeal and for that application for leave to appeal to be heard and determined on its merits. (Was this done?) The parties to file submissions as to costs in ten (10) days if agreement cannot be reached. 31 Esekia v LTC Justice Nelson Article 9 HELD: The Applicants Amended Motion for Judicial Review successful [2017] WSSC Counsels: The Applicants 145 (9 S Ponifasio for Amended Motion for DECISION: November applicants Judicial Review seeks: The applicants right to a “fair hearing” and his right to trial “by an
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2017) S Ainuu and E Fruean (i) a declaration; independent and impartial tribunal” under article 9(1) of the Village: Siumu for first and second (ii) an order quashing Constitution have been blatantly and egregiously breached by Vice SC; 2017 respondents the said decision; President Fuimaono presiding in their matter. I take into account the M Betham-Annandale (iii) an order quashing pre-eminence of the position and the leading role a Vice President plays for third respondents and/or setting aside the in such litigation. There was no valid or effectual waiver of the LTC Appeal ruling 20 applicant’s rights and this argument does not save the first respondents May 2015 refusing leave decision. The effect of such constitutional breaches flow through and to appeal and upholding adversely affect the second respondent’s decision. the decision; Order: (iv) a rehearing of the (i) Quashing the decision of the first respondent dated 26 March 2013 applicants original in LC 9996/P1-P11. petition LC 9996; and (ii) Quashing the decision of the second respondent dated 20 May 2015 (v) costs. in LC 9996/LC 9996 P1-P11. (iii) The applicant’s original petition LC 9996 is to be re-heard by a differently constituted panel of the Land and Titles Court. Was this done? (iv) Such rehearing is to be given priority by the respondents and is to take place expeditiously and subject to the convenience of the parties, within 30 days hereof. (v) Costs are awarded to the applicants as against the first and second respondents, 32 Tanielu v AG Fisher Article 9 HELD: Motion for Judicial Review struck out [2017] WSCA 3 Blanchard - Breach of Article 9 of (31 March Panckhurst the Constitution DECISION: 2017) Hon JJs - Illegality Bias being the only constitutional breach advanced by the appellants, Village: Auala Counsels: - Failure to consider and that argument being unsustainable on its face, the appellants’ and Vaisala Mr Mulitalo and traditional and proceedings to judicially review the LTCA decision were rightly struck CA; 2017 Mr Tanielu for customary rights out. Neither the Supreme Court nor this Court has jurisdiction to review Appellant - Ubi jus ibi remedium a decision of the LTC or the LTCA on any basis other than breach of the Mr Ainuu and Mr - Ultra vires Constitution. Soloi for Respondent - Lack of due process 33 Lemalu Tuala Warren J. Article 9 HELD: Motion for judicial review successful, SC overturned LTC decision Fa'alafua & Grounds of motion for and reinstated the lease terminated by LTC. Ors v LTC & Counsels: JR: DECISION:
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Ors [2018] B. Heather Latu for LTC decision breached I find that the Land and Titles Court does not have jurisdiction to ‘soloia WSSC 1 (4 the first and second the Applicant’s right to a ma faaleaogaina’ (revoke and cancel) a lease granted by the Minister. December applicants fair trial under Art.9 of The Land and Titles Court of Appeal also does not have that jurisdiction. 2018) S. Ainuu and D. Fong the Constitution Leases granted over customary land fall within the jurisdiction of the for the second and LTC and LTCA decisions Supreme Court as they operate as leases of public land. The Supreme Village: third respondents were ultra vires and Court has the jurisdiction to declare the decisions of the Land and Titles Matautu T. Malifa for the without jurisdiction Court dated 21 June 2013 and the Land and Titles Court of Appeal dated Lefaga fourth respondents 28 July 2014, ultra vires (beyond the powers and jurisdiction) and in SC; 2018 breach of a fundamental right, and thereby revoke them. Accordingly, LTC decisions which declare the lease to be ‘soloia ma faaleaogaina’ are hereby revoked and set aside. 34 Lemalu Saeni Honourable Justice Appeal against a JR HELD: The Appeal is dismissed & Ors v Fisher successful on Art 9 The Lemalu Honourable Justice Saeni family appealed to DECISION: Fa'alafua & Panckhurst this Court. Grounds: The appeal is dismissed with costs to the first and second respondents in Ors [2019] Honourable Justice i. The exercise of LTC the sum of $5,000 each. The third and fourth respondents abided the WSCA 3 (15 Harrison jurisdiction to make decision of the Court. There will be no award of costs in their favour. April 2019) Counsels: findings in relation to Village: Leuluaialii T. Malifa customary land can i. LTC does not have the jurisdiction to cancel a lease of customary Matautu for the Appellants have the incidental land once it has been granted by the Minister Lefaga Taulapapa B. effect of nullifying a ii. The Supreme Court had the jurisdiction to set aside LTC decision CA; 2019 Heather-Latu & Minister’s lease over and was entitled to declare that the lease is still valid and binding George Latu for the that land. iii. Once the lease was granted, LTC lost power to cancel it. Matter of First and Second ii. The Supreme Court whether procedures of objection were properly observed in LTC. Respondents did not have the iv. The decision under appeal is that of the LTC, not of the D. Fong for the Third jurisdiction to Minister’s. Also, similar to (iii) above, once the lease was granted and Fourth interfere with the by the Minister, LTC does not have jurisdiction on the lease. Respondents LTC decisions. iii. The Saeni family never lost its right to object to the lease. iv. The Minister should not have granted the lease.
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35 LTC et al Fisher Article 9 HELD: Appeal is dismissed v Lautogia et Panckhurst The grounds in support al [2018] Hansen of the applicants motion Brief Facts: WSCA 4 Hon JJs were as follows: The respondents petitioned the Land and Titles Court (the Court) for the determination of a dispute as to the ownership of the Village: Siumu, 1. The judge in the SC customary land called Leuluasi in the village of Siumu. They were Land Leuluasi Counsels: misdirected himself. unsuccessful. The decision was challenged by way of a motion for CA; 2018 S Ainuu and T The Judge failed to judicial review which ultimately was determined by Nelson J who Peniamina for First follow the 2 steps quashed the decision of the Court and a decision of the second appellant and Second process in Reupena v (the President) refusing leave to appeal. He directed the petition to be Appellants Senara re-heard by a differently constituted panel of the Court. He found that S Ponifasio for the the respondents’ right to a fair hearing and to trial by an independent Respondents and impartial tribunal under article 9(1) of the Constitution had been breached. The Court and the President of the Court appeal against that decision.
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Appendix D – Non-Judicial Review cases
No. Case Page number
1. Tuivaiti v Faamalaga [1980] WSSC 2 61 2. Taamale v Attorney General [1995] WSCA 1; 02 1995B (18 August 62 1995) 3. An application for a declaratory judgment by the Corporation of the 66 Presiding Bishop of the Church of Jesus Christ of Latter Day Saints (unreported 22 November 2000) 4. Leituala v Mauga [2004] WSSC 9 (13 August 2004) 69 5. Tutuila v Punitia [2012] WSSC 107 72 6. Lavea v Kerslake [2015] WSCA 3 (17 April 2015) 79 7. Attorney General v Malifa [2017] WSCA 7 80 8. Attorney General v Malifa [2018] WSCA 1 (13 April 2018) 82
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NON JUDICIAL REVIEW CASES
No. Name And Year Parties And Counsels, Grounds For Judicial Case Held, Judge(s), Decision Brief Facts Review Law/Authority 1. Tuivaiti v Faamalaga Parties: Civil causes of action Rookes v Barnard HELD: Judgement for the plaintiff [1980] WSSC 2 Tariu Tuivaiti, Plaintiff brought against the [1964] AC 1129 against the 4 defendants in the sum of AND Defendants. $10,5700. Judgment against the 3 Village: Matautu, Sila Faamalaga, Anae Taealii, defendants other than Misa Nanai Falelatai. Misa Nanai Faitala, The Plaintiff brought a Faitala in the sum of $1,000. Faamasino Samoa AND Misa number of causes of Unique features: Sautia, Defendants. action against the JUDGE: Chief Justice R.J.B. St. John. - First case to rule that Defendants. the village council has Counsels: The defendants were each ordered to no authority to compel T.K. Enari for Plaintiff These causes of action refrain from excluding the plaintiff villagers regarding any A.S. Epati for Defendants are as follows: and his family from possession of the church related 1) Trespass to the land land and buildings in the said village activities; Brief Facts: 2) Assault occupied by them before 12th May - Held that any The Plaintiff brought this 3) Civil conspiracy 1979. consequence action against the four 4) Intimidation punishment for such defendants for banishment 5) Negligence DECISION: Damages were awarded failure may amount to of the plaintiff and his whole under these headings: (1) Loss of a civil conspiracy and family for the plaintiff’s Use of One Bus: (2) Loss of they can liable failure to attend church. The Earnings from Bus Business: (3) therefore and can have defendants also prohibited Loss of Spare Parts and Tools: (4) damages awarded members of the village from Loss of Use of Workshop: (5) Loss against them; riding on the plaintiff's of Residence: (6) Loss of Profits - elaborate discussions buses and decided upon from the Plantation: (7) Pigs. on article 11 (freedom penalties for so doing and The plaintiff also claims punitive of religion). also threatened banishment damages in respect to the trespass, as a consequence of so assault, conspiracy and intimidation riding. causes of action found against the defendants.
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No. Name And Year Parties And Counsels, Grounds For Judicial Case Held, Judge(s), Decision Brief Facts Review Law/Authority 2. 2Taamale v Attorney Parties: Appeal – LTC did not Cases: HELD: The appeal was dismissed . General [1995] WSCA 1; Italia Taamale Of Sapunaoa, have jurisdiction to Tagaloa v. 02 1995B (18 August School Teacher, hear matter it heard Inspector of JUDGES: 1995) Taamale Toelau, Police and Fuatag Coram: The Rt Hon. Sir Robin Cooke, Appellants/Applicants. a v. Inspector of President The Rt Hon. Sir Maurice Village: Sapunaoa, AND An appeal was filed Police [1927] Casey The Rt Hon. Sir Gordon Bisson. Falealili. The Attorney General, against the decisions of N.Z.L.R. 883 Respondent. the Supreme Court - DECISION Unique features: upholding LTC’s Nelson Braisby The Court of Appeal reject the - Held that banishment Counsels: jurisdiction to (No. 2) [1934] contention that the there was a from a village is, at the T. Malifa for make/issue an order of N.Z.L.R. 559, 580, breach of the fair hearing provisions present time, a Appellants/Applicants banishment against the 582 of article 9(1) of the Constitution. In reasonable restriction G. Latu for Respondents appellants. any event counsel for the appellants imposed by existing Ex parte Wa1sh has been fully heard in this Court. law, in the interests of Brief facts: Leave for appeal was and public order, on the On 28 Jan 1994 of the LTC, granted by Honourable Johnson [1925] exercise of the rights on a petition by the Alii and Chief Justice, SC. HCA 53; 37 C.L.R. The Custom of Banishment of freedom of Faipule of Sapunaoa, 36, 67, 90 Although the line of legislation movement and Falealili, delivered a decision includes no express reference to residence affirmed by ordering that the present R. v. Leman Street banishment, we consider that the Article 13(1) (d). The appellants (Taamale Toelau Police-station general provisions of ss.34 and 37 of law to which we refer and Italia Taamale and their Inspector 89 the present Act, which we have is that pertaining to children leave Sapunaoa L.J.K.B. 1200 quoted, are wide enough to give the the jurisdiction of the within 3 months from date Court authority to order banishment Land and Titles Court. of decision. Jones v. from a village that being a custom Robson 23 L.J.K.B. and usage long established in 11 April 1994 – applicants 419; Western Samoa as we have explained. filed for leave to appeal from Maea and others It is also clear that the Land and the decision to the Appeal v. Solomon and Titles Court has accepted jurisdiction
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Division of the LTC others to make such orders…. (application not heard yet). Taimalie Time The Constitutional issue Charges brought against the and others v. Apart from the decision now under current applicants under Papalii Lave and appeal and that of the Land and Titles section 75 of the LTA 1981 others Court presided over by Judge Smith, whereby it is an offence, there is apparently no judicial punishable by a fine or Marina decision on the issue raised in this imprisonment to disobey Ututa'alega v. case. In argument references were any decision or order of the Luafatasaga made to the decision of St. John C.J. in LTC – referred to as Iu1io and others Tariu Tuivaiti v. Si1a Faamalaga contempt charge [1980-1993] WSLR 17 and a case in Tariu Tuivaiti v. the Supreme Court of Papua New Question reserved for the Si1a Guinea, Supreme Court Reference No. Supreme Court Faamalaga [1980 1 of 1986: Re Vagrancy Act [1988] 1. Whether the contempt -1993] WSLR 17 SPLR 235. But the former was charge holds in light of concerned with freedom of religion Articles 13(1)(d) and Supreme Court under Article 11 of the Constitution 13(4) of the Constitution? Reference No. 1 of and is not helpful on the issue under 1986: Re Article 13(4) now arising. And the 2. Whether the order of Vagrancy latter was concerned, as its title banishment of the LTC is Act [1988] SPLR indicates, with a statute directed violative of the 235 against vagrancy, quite a different fundamental guarantee of subject from banishment. There is Article 13 (Constitution)? Attorney-General nothing of direct relevance in those Supreme Court decision v. Saipa'ia cases (answers): Olomalu, 1. Yes. reported in The Court of Appeal is not called 2. No – the banishment (1984) 14 upon in this case to consider whether order was not in breach village councils, as distinct from the of the Constitution Victoria Land and Titled Court, have authority Ordered that the appellants University of to order this kind of banishment. We be tried in MC for contempt Wellington Law must not be understood as now of contempt charge. Review 275 expressing any opinion on that
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question. We go no further than The current appellants Report on Matai saying that the Land and Titles Court appeal the above SC decision. Titles, Customary has jurisdiction to make this kind of Land and the banishment order, a jurisdiction which Land and Titles should only be exercised for truly Court (December strong reasons, and that a village 1975). council minded towards banishment from the village would be well advised Laws/Rules: to petition that Court for an order Constitution 1960 rather than to take an extreme course (Art. 4 &13) on their own responsibility.
Judicature In largely endorsing the Chief Ordinance 1961 Justice's approach, we share his view (Judicature that the Constitution must be applied Amendment Act with due regard to its Samoan setting 1992/1993) It must be remembered that the Land and Titles appellants have occupied (and Court Act 1981 presumably still do occupy) (Land and Titles customary land in the village; it is Amendment Act basically this treat gives the Land and 1992/1993) Titles Court jurisdiction. Again Article 111(1) defines 'Law'… Criminal Procedure ….. Act 1972, s 111(3) It is that history and social structure and those references in the Court of Appeal Constitution which lead us now to Rules 1961 hold that, within the meaning of Article 13(4), banishment from a Samoa Act, 1921 village is, at the present time, a (and Samoa reasonable restriction imposed by Amendment Act 1927 existing law, in the interests of public / Samoa Amendment order, on the exercise of the rights of
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Act 1938) freedom of movement and residence affirmed by Article 13(1) (d). The law Samoan Offenders to which we refer is that pertaining to Ordinance 1922 the jurisdiction of the Land and Titles Court. Samoa Seditious Organisations Regulations 1930
Native Land and Titles Protection Ordinance 1934 (and Amendment Ordinance 1937)
FINDINGS: We reject the contention that the there was a breach of the fair hearing provisions of article 9(1) of the Constitution. In any event counsel for the appellants has been fully heard in this Court.
The Custom of Banishment ….. Although the line of legislation includes no express reference to banishment, we consider that the general provisions of ss.34 and 37 of the present Act, which we have quoted, are wide enough to give the Court authority to order banishment from a village that being a custom and usage long established in Western Samoa as we have explained. …. It is also clear that the Land and Titles Court has accepted jurisdiction to make such orders….
THE CONSTITUTIONAL ISSUE Apart from the decision now under appeal and that of the Land and Titles Court presided over by Judge Smith, there is apparently no judicial decision on the issue raised in this case. In argument references were made to the decision of St. John C.J. in Tariu Tuivaiti v. Si1a Faamalaga [1980-1993] WSLR 17 and a case in the Supreme Court of Papua New Guinea, Supreme Court Reference No. 1 of 1986: Re Vagrancy Act [1988] SPLR 235. But the former was concerned with freedom of religion under Article 11 of the Constitution and is not helpful on the issue under Article 13(4) now arising. And the latter was concerned, as its
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title indicates, with a statute directed against vagrancy, quite a different subject from banishment. There is nothing of direct relevance in those cases …. The reservation is that, as previously mentioned, we are not called upon in this case to consider whether village councils, as distinct from the Land and Titled Court, have authority to order this kind of banishment. We must not be understood as now expressing any opinion on that question. We go no further than saying that the Land and Titles Court has jurisdiction to make this kind of banishment order, a jurisdiction which should only be exercised for truly strong reasons, and that a village council minded towards banishment from the village would be well advised to petition that Court for an order rather than to take an extreme course on their own responsibility. …. In largely endorsing the Chief Justice's approach, we share his view that the Constitution must be applied with due regard to its Samoan setting …. It must be remembered that the appellants have occupied (and presumably still do occupy) customary land in the village; it is basically this treat gives the Land and Titles Court jurisdiction. Again Article 111(1) defines 'Law'… ….. It is that history and social structure and those references in the Constitution which lead us now to hold that, within the meaning of Article 13(4), banishment from a village is, at the present time, a reasonable restriction imposed by existing law, in the interests of public order, on the exercise of the rights of freedom of movement and residence affirmed by Article 13(1) (d). The law to which we refer is that pertaining to the jurisdiction of the Land and Titles Court.
No. Name And Year Parties And Counsels, Grounds For Judicial Case Held, Judge(s), Decision Brief Facts Review Law/Authority 3. An application for a Parties: An appeal – LTC did not Cases: HELD declaratory judgment by Corporation of the Presiding have jurisdiction to Mau Sefo v AG (2000) The applicant is entitled to apply the Corporation of the Bishop of the Church of hear matter relating to (unreported direct for review to this Court (SC) for Presiding Bishop of the Jesus Christ of Latter Day a lease of customary judgment delivered the following grounds: Church of Jesus Christ of Saints, Applicant land on 12 July 2000) The applicant in this case could Latter Day Saints not have appealed to the appellate (unreported 22 November AND The applicant filed a Council for Civil division of the LTC because by the 2000) motion for declaratory Service Unions v time it became aware of the Land and Titles Court, judgment against Minister for Civil decision at first instance, the Unique features: Respondent decision of the LTC Service [1985] AC appeal period had expired. The presiding Justices in pursuant to Article 4 of 374; [1984] 3 All ER In addition, it is also debatable this case invited counsel Counsel: the Constitution and at 935. whether the applicant had a seeking review by the SC W. Akel (of the NZ bar) and common law. standing to appeal given that it
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of decisions of the LTC in V.C.J Nelson for applicant Laws/Rules: was not an actual party to the separate proceedings Grounds for JR: Constitution of the proceedings before the Court at (Seumalo Kasimani Lautusi The Attorney General B. P. 1. Lack of jurisdiction Independent State of first instance. v Malaga Samuelu et al; Heather-Latu and G. Latu for of the LTC Samoa 1960 Toomalatai Lauvai II v the respondent LTC’s jurisdiction is o AG granted 14 days to file Tagaloa Enoka Puni et al; in respect of claims Declaratory submission as to how the SC and Lealiifano Iopu Tanielu Brief Facts: and disputes Judgments Act 1988 should exercise its discretion v Tagaloa Enoka Puni et The applicant is seeking between Samoans in (this is to be served upon al) to join in and make declaratory judgment in relation to Alienation of counsel for applicant for their submissions on the respect of the LTC’s decision customary land (The Customary Land Act reply to AGO) question whether the SC at first instance, purporting applicant in this 1965 has jurisdiction to review to invalidate a lease of case is not Samoan). JUDGE decisions of the LTC since customary land (Salaa) Lease of customary Books: Chief Justice Sapolu decisions by the SC in this granted to the applicant land under the ACLA Judicial review of case could be relevant to under the Alienation of is treated as a lease Administrative DECISION - Discussions those other proceedings. Customary Land Act 1965 of public land Action (1995) 5th (ACLA). (outside of the edition at p.35 Jurisdiction of the SC to review The Court however only jurisdiction of the decision of the LTC delivered judgments on 11 November 1985 – LTC). Although the applicant’s motion this current case and Togia’i Aipolo (matai of was founded in the provisions of Suemalo Kasimani case. Uafato) applied to Director the Declaratory Judgments Act of Lands under ACLA to 2. The LTC failed to 1988, it’s not necessary. lease land called Saala at afford a hearing to Article 4 of the Constitution Uafato to the applicant. the applicant (breach provides the foundation for the - Pursuant to section 5 of of Right to a Fair jurisdiction of the SC to make all ACLA, any beneficial Trial – Article 9 of the such orders as may be necessary owner of any customary Constitution) and appropriate to secure to an land or of any interest individual the enjoyment of the may apply to lease such Common law ground – rights under Part II of the land to another person. failed to adhere to the Constitution. - 1977 LTC held that the rules of natural justice Made reference to Mau Sefo v AG land Saala pertains to the by not affording a (2000) case where Wilson J made a title Togia’i. (Togia’i hearing statement: Aipolo is a beneficial
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owner of the land in “the jurisdiction of the SC is not question). dependent upon the Declaratory Judgments Act or upon any other 7 August 1986 – deed of statute. The jurisdiction of this lease created between the Court….is provided under Article 4 Minister and applicant. of the Constitution. If a declaratory - Applicant subsequently order is necessary and appropriate wanted to build a church to secure to the applicant the on the leased land. enjoyment of any of the rights - Supported by Togia’i conferred under Part II of the Aipolo Constitution, the SC ipso facto has - However, certain heirs of jurisdiction to make a declaratory the title Togia’i objected order.” and lodged a petition with LTC. By virtue of Article 4, the SC has the power and jurisdiction to 31 August 1990 – LTC secure to every person by heard the petition and whichever remedy is necessary decided to cancel that 1986 and appropriate, enjoyment of lease such a right to a fair hearing. - The applicant was not a The LTC, before it cancelled the party to these applicant’s lease should have proceedings, and so the accorded to the applicant a fair applicant was not aware hearing under Article 9(1). To of the decision until later cancel the lease and terminate after appeal period had those rights without according to expired. the applicant any hearing at all is a clear violation of the right under Article 9(1).
Discussions of sections 34 (Jurisdiction of the Court) and 71 (Decisions and Orders not reviewable by other Courts) of the Land and Titles Act 1981:
It is clear that sections 34 and 71 of the LT Act 1981 cannot oust the jurisdiction of the SC under Article 4 of the Constitution to review a decision of the LTC for the purpose of securing to an individual the enjoyment of any of the fundamental rights conferred under Part II of the Constitution.
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If proceedings in the LTC result in a violation of a fundamental right under Part II of the Constitution, SC has power under Article 4 to intervene, notwithstanding sections 34 and 71 of the LT Act 1981.
SC common law jurisdiction to review LTC decisions LTC failed to adhere to principles of natural justice – comes within the ambit of procedural fairness and acting and acting without or in excess of jurisdiction comes under the umbrella of illegality as grounds for JR.
Does SC have jurisdiction to review decision of the LTC on the grounds of breach of procedural fairness – Yes it does.
LTC a special Court with exclusive jurisdiction to hear matters pertaining to matai titles and customary land The concern is that intervention by the SC to review in proceedings before the LTC, which is a unique Court established to deal with matters pertaining to matai titles and customary land which are two matters at the heart of Samoan customs and traditions, could erode the importance and dignity accorded by the Samoan people to the LTC. Having said that, it is the respectful view of the SC that if the LTC can cancel a lease of customary land without according to the parties to such lease a fair hearing or any hearing at all, that would be a sure way of undermining the respect and confidence the people have in that Court.
Discussions of whether LTC is a subordinate Court to the SC:
Under English common law, JR is a remedy by which the superior courts of record exercise supervisory jurisdiction over subordinate or inferior Courts and tribunals. Justices agrees with submissions by AGO for the respondent that the LTC is NOT a subordinate Court. Article 74 establishing subordinate Courts by statute. Article 103 makes separate provision for establishment of LTC and its special jurisdiction in relation to matai titles and customary land. The fact that the Constitution makes separate provisions for establishment of LTC, suggests that LTC was not intended by the framers of the Constitution to be a subordinate/inferior Court. The jurisdiction of the LTC may be limited, but the matters which are within the jurisdiction of the LTC apply to the country as a whole and at this stage of the country’s evolution and development, from the fabric and identity of a very large part of the Samoan society. (This case however was not a case questioning whether LTC is an inferior court)
No. Name And Year Parties And Counsels, Subject Matter Case Held, Judge(s), Decision Brief Facts Law/Authority 4. Leituala v Mauga [2004] Parties: Claim for compensation Board of Education v JUDGE: Justice Vaai WSSC 9 (13 August 2004) Fuga Leituala, Plaintiff Rice (1911-1913) All
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Plaintiff claims ER 36; HELD: claim for compensation AND compensation for his accepted by Court for violation of Village: Lotofaga Pitoamoa Mauga, Saseve home and furniture; Miller Ltd v Minister Plaintiff’s constitutional rights for Kilifi, Mauga Petelu, Laloava produce of his plantation of Housing and Local him and family. Unique Features: Fili, Lilo Pogai, Leigi Oto, Sao and his animals he left Government (1968) Pelo, Sao Kivi, Sautia Pauga, behind at Lotofaga. 2 All ER 633. Special Damages $ 14,900 Not a judicial review Lau Numia, Tuua Manu, General Damages $100,000 matter but claims for Defendants He seeks damages for Italia Ta'amale and Punitive Damages- $ 50,000 damages to P’s properties himself and his family Ta'amale Toelau v that were damaged by the Counsel: members for the The Attorney General The first ground relates to the Village. Mr. Toailoa for the Plaintiff violation of their (unreported 8/5/95). behaviour of one of the plaintiff's son Mr. P Fepuleai for the constitutional rights on the 9th December 2002. That is Justice Vaai: The Village Defendants when they were abrubtly Tagaloa v Inspector one of the plaintiff's son was drunk; Fono Act in my view does banished from their of Police and he then took the bicycle of the son of not confer on the village Brief Facts: home and village without Fuataga v Inspector the Methodist pastor and when council legal authority to The plaintiff claims valid just or just cause, of Police (1927) confronted by the wife of the pastor order banishment from compensation for his home and proper enquiry, as NZLR 883 the drunken son swore at her. The the village. and furnitures; produce of well as damages for other sons then joined in and tried to his plantation and his anxiety, distress, throw stones at the Methodist animals he left behind at inconvenience and Minister's house. But the plaintiff's Lotofaga. He seeks damages hardship resulting from son who rode the bicycle gave for himself and his family the banishment. evidence and he said he does not members for the violation of consume alcohol; he is a student; in their constitutional rights fact the pulenu'u conceded under when they were abruptly cross examination that the plaintiff's banished from their home son does not consume alcohol. With and village without valid just the permission of the pastor's son he or just cause, and proper rode the bicycle and later in the day enquiry, as well as damages he was questioned by the pastor who for anxiety, distress, then uttered the insulting words I inconvenience and hardship referred to at the beginning of this resulting from the judgment. banishment.
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Decision cont’d - Neither the pastor nor his wife and son gave evidence which leads me to accept the evidence of the plaintiff's son that he was not drunk; he did not take the bicycle by force; he was not confronted by the wife of the pastor; and he did not swear at the pastor's wife. And there is not the slightest evidence to support the rest of the allegation namely that the plaintiff's other sons later joined in and tried to throw stone at the pastor's house. The pulenu'u who reported the incident to the council meeting told the meeting that the wife of the pastor told him the plaintiff's sons tried to throw stone at the pastor's house. It was never explained to the court the mode of behaviour of the sons of the plaintiff which amounted to trying to throw stone (my emphasis). Other than what the pastor's wife told the pulenu'u there is no other evidence to support the allegation. It follows from my determination of the evidence that the first ground upon which the village council based its decision to banish the plaintiff and his family is unfounded. - I accept from the evidence for the plaintiff and for the defendants that one of the plaintiff's son (Sione) did fight with the pastor's son and another villager and I also accept that Sione did swear on the night of the 9th December. But I do bear in mind that the evidence called by the defendants in these proceedings was not the evidence before the village council when they decided the fate of the plaintiff on the morning of the 10th December. In fact I am very doubtful about the sincerity of the evidence of the defendants. As the reasons for the banishment given by the pulenu'u in his sworn testimony differ substantially from the grounds given in the Statement of Defence, the court is entitled to be accorded the courtesy of an explanation for the disparity in the versions and since there is none the obvious logical conclusion must be drawn. - Perhaps the most unpleasant consequence of the submission is that with hundreds and hundreds of Village Councils in Samoa and with so many variations and different interpretations of customs and usages as well as the different procedures adopted by the different village councils, fair and equal treatment of village residents cannot be guaranteed. Article 9 of the Constitution confers on every person a right to a fair trial which includes the right to be informed promptly and the right to defend himself. It is one of the reasons that I reject the contention by counsel for the defendants that the Village Fono Act requires the rules of natural justice to be examined in terms of the custom and usage of Lotofaga village. I also reject the contention that the Village Fono procedures of not giving notice and the right to be heard are fair in the context of village custom and usage. The simple answer is that if the Village Councils are by law given the power, authority and mandate as argued by the defendants then they must also comply with the requirements of the law. To accept the argument by the defendants would mean that while the Land and Titles Court in determining an application for a banishment order is required to comply strictly with the rules of natural justice the Village Council pursuant to the Village Fono Act is not obliged to comply. - The Village Fono Act in my view does not confer on the village council legal authority to order banishment from the village. Firstly to do so would tantamount to winding back the clock of progress. It is true that in 1927 in Tagaloa v Inspector of Police the majority of the court took the view that banishment was not a form of punishment but a preventive measure within the Samoan Society. At that time of course Samoan natives were perceived by foreign administrators as living in a uncivilised lifestyle in which materialism and individual wealth was secondary to communal type of existence where sharing was a common feature so that banishment was probably viewed as having a minor or no impact on the natives lifestyle. With evolution of time the accompanying developments brought about amongst other things changes in lifestyle, perception and attitudes. Banishment from the village may now be viewed as not only preventive but also punitive. Indeed Ostler J in 1927 in delivering his dissenting judgment in Tagaloa v Inspector of Police argued that the same form of banishment in a civilised society would be viewed as punitive as well when he said at page 904: - "I find it difficult to see how it can be argued that such treatment is merely preventive and not punitive. Even in a civilised country the banishment of a subject from his hometown to some remote part of the country for some indefinite term could not but be felt to be a heavy punishment." - "Notwithstanding the realisation of the injustice of their action, the chiefs and orators proceeded to condemn (the) plaintiff without hearing him, and
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execute the penalty without telling him what it was or why it was imposed. - This is so gross a violation of the elementary principles of justice that the court cannot possibly support their action. It may make for discipline steps to punish an affront to their dignity; but the courts cannot lend their approval to any custom, however ancient, which denies to an accused person a right freely available to the lowliest member of a civilised Christian community. I must not be understood as saying that Samoan Custom will not be recognised. The court realises that custom and law can exist side by side and the court will not interfere with any custom which is just and in the best interests of the community."
No. Name And Year Parties And Counsels, Subject Matter Case Held, Judge(s), Decision Brief Facts Law/Authority 5. Tutuila v Punitia [2012] Parties: Claim for Cases: HELD: WSSC 107 Afa Fauimuina Tutuila, suing compensation Ta’amale v The Action against Atoa Kisona is on her behalf and in a Attorney General dismissed representative capacity for This was a civil claim [1995] WSCA 12 The assessment of damages for Village – Tanugamanono and on behalf of her family against the Alii and property loss although greater members who were evicted Faipule of Tagaloa v Inspector than the sums pleaded will be in from Tanugamanono, Tanugamanono, for of accordance with the pleadings Unique features: Plaintiff damages and loss Police and Fuataga v and the closing submissions of Justice’s comment: caused to the Inspector of Police counsel. AND plaintiff and her Judgment is entered in favour of Village Fono Act simply family as a result of a Alaelua Vaalepa the Plaintiff as against each of the authorises each village Tuuamaalii Peni Punitia, number of incidents Saleimoa Vaai v Land remaining Defendants. council to exercise its Tupuola Afa Lesa, arising in the village. and Titles Court Special damages for loss and powers and authority in Anauli Pofitu Fesili, Fetaoai Leutuala v Mauga damage incurred on 1 October is accordance with custom Vau Samau, Upuese Tanielu [2004] WSSC 9 assessed in the sum of $18,585 and usage of the village Lepolu, Sinava Lima, and the Defendants (Tuuamaalii Power and authority are Palaialii Louis Tafunai, Tagaloa v Inspector Peni Punitia, Tupuola Afa Lesa, not defined, but the Palaialii Tuvale Atoa, of Police Anauli Pofitu Fesili, Fetaoai Vau village fono cannot Palaialii Ionatana Pula, Samau, Upuese Tanielu Lepolu, exercise any power or Palaialii Gene Taatasi, Piteamoa Mauga & Sinava Lima, Palaialii Pauesi Teo authority which is Palaialii Pauesi Teo, Asotasi Ors v Fuga Leituala and Galuvaa Sagauga Metuli) unlawful or contrary to Vaa Falealili, Mose v Masama & ordered to pay such sum jointly law. It can only exercise Tia Elise Solo, Ors (1930 – 1949) or severally. power authorised by law. Galuvaa Sagauga Metuli, WSLR 140 Special damages for loss and It follows therefore that Atoa Kisona, damage to the residence and
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a village fono cannot Tuua Fasi Leota, Tuuamaalii Home Office v Dorset buildings incurred as a result of order anyone to be Siataga Mann, of Yacht Club Inc the burning of the property on 16 removed from Tanugamanono, Matais, sued [1970] AC 1004 October are assessed in the sum customary land as that for and on behalf of the Alii of $635,736 and the Defendants, power is lawfully and Faipule of Sunderland Shore jointly and severally, ordered to vested in the Lands and Tanugamanono, Defendants. Council v Heymon pay the sum of $635,736 to the Titles Court pursuant [1998] 192 CLR 330 Plaintiff. to the provisions of the Counsels: Special damages for the loss and constitution which T S Toailoa for the plaintiffs Brownie Wills v damage to chattels are assessed in established that court R Papalii for the defendants Shrimpton [1998] 3 the sum of $112,664, and the provisions of NZLR 320 Special damages for the loss and the Lands and Titles Brief Facts: damage to the Plaintiff’s motor Court Act 1981 which Plaintiff and her ANS v London vehicle are assessed in the sum of gives that court the immediate family had Borough of Merton $15,000 and the Defendants, jurisdiction to make been longtime residents [1975] AC 728 jointly and severally, are ordered banishment orders. of the village of to pay the sum of $15,000 to the Tanugamanono. She and Scott Group Ltd v Plaintiff. Question: her parents have long McFarlane 1978 1 Damages for the destruction of Does LTC really have rendered service to the NZLR 553 the crops and the loss of animals lawful authority to order village and its of the Plaintiff are assessed in the anyone to be removed Congregational Christian City of Kamloops v sum of $50,310 and the from customary land? Church (“the Church”). Nielson 1984 Defendants, jointly and severally, The land occupied by the ordered to pay the sum of Plaintiff and her family Sutherland Shire $50,310 to the Plaintiff. adjoins the compound of Council v Heyman Damages for the breach of the Church. [1985] HCA 41; Constitutional rights in the form In 2010, the Church (1985) 157 CLR 424 of punitive damages will be sought to expand its consistent with the assessment in physical domain by Governors of the Leituala (supra), but allowance enlarging its boundary. Peabody Donation made for inflation, will be The dispute resulted in Fund v Sir Lindsay awarded in the sum of $100,000 proceedings before the Parkinson & Co Ltd to be paid jointly and severally by Land and Titles Court. 1985 AC 210 the Defendants. On 20 August 2010, The The Defendants, jointly and
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LTC brought about a Caparo Industries plc severally, are to pay to the compromise setting down v Dickman 1990 2 AC Plaintiff exemplary damages in a boundary between the 605 the sum of $50,000. Church and the In the final submissions, Counsel custom land. It Yuen Kun Yeu v for the Plaintiff stated at determined that the Attorney General of paragraph 30: boundary be defined by Hong Kong [1988] the hedge which had AC 175 “The Plaintiff and her family do not grown up alongside or wish to return as they would be between the allotments. Stoven v Wise [1996] fearful for their lives. We submit The Plaintiff accepted the AC 923 that it would not be wise for the compromise which Court to make such an order as it favoured the CCC and the South Pacific would only be placing the lives of Respondents. Manufacturing Co the Plaintiff and her family in The Respondents Ltd v New Zealand grave danger. They have been objected to the referral of Security Consultants uprooted by the Defendants and the matter to the Land & Investigations Ltd the Plaintiff and her family is and Titles Court and [1992] 2 NZLR 282 simply asking for compensation for unlawfully, and in what they have lost. The defiance of the Connell v Odlum Defendants are free to help Constitution and the Land [1993] NZLR 282 themselves to the remains of the and Titles Court, met and Plaintiff’s buildings, which at best, resolved to banish the Tame v New South would only be nominal salvage whole family from Wales value.” Tanugamanono. The resolution was publicly Annetts v Australian No injunctive or restraining pronounced by the Stations pty Ltd orders will be made. To’oto’o and, in the [2002] HCA 35; The Defendants, jointly and Plaintiff’s words, the (2003) 211 CLR 317 severally, are to pay the Plaintiff’s decree on the Plaintiff’s costs, such costs to be taxed. case as pronounced was: South Pacific Manufacturing Co “...that all the members of the Ltd JUDGE: Justice Slicer family of Faumuina Tutuila, Lister v Romford Ice
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from the eldest to the and Cold Storage Co youngest, are banished from Ltd [1957] AC 555 the village forever and are to DECISION: leave by 4 p.m. that day and if Janata Bank Ltd v (we) disobey then we will be Ahmed [1981] 1 SCR Banishment and the Village Fono burned together with our 791 Act 1990 homes.” The Defendants relied on the F v Attorney General provisions of the Village Fono Act Banishment of the [1994] 2 1990: Plaintiff and her family a) The Alii and Faipule were The Defendant relied upon Peterson v Royal Oak entitled to order the the provisions of the Village Hotel Ltd [1948] banishment of the Plaintiff and Fono Act 1990 in support of NZLR 136 members of her family, their decision to banish the including children in perpetuity; plaintiff and her family. Commercial Union b) That they did so only for the Assurance Co of New protection of the family; Zealand Ltd v c) Custom did not require the fono Lamont [1989] 3 to hear from the Plaintiffs NZLR 187 before the order was made; d) That the notice to quit the Kooragang village by 4.pm was reasonable Investments Pty Ltd v under the circumstances; and Richardson and e) The Alii and Faipule were Wrench Ltd [1982] entitled to ignore the decision of AC 462 the LTC because the banishment order was based on a different Lloyd v Grace, Smith ground namely, the claimed and Co [1912] AC damage to the Church. 716; The Court rejects each of these State of NSW v assertions. Jeffrey (2000) Aust Section 2 of the Village Fono Act Torts Reports 81 – 1990 defines “village misconduct” 580 in relation to any village as “any
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conduct or behaviour which is or Morris v CW Martin has been traditionally punished by and Sons Ltd [1966] the Village Fono of that village in 1 QB 716 accordance with its custom and usage.” March v Stramare There is nothing in this provision Pty Ltd [1991] HCA which permitted the conduct of the 12; (1990) 171 CLR Defendants. Custom or tradition 506 may vary in different villages, but the section is not open ended. Hadley v Baxensdale “Misconduct” must be grounded in (1854) 9 Exch 341 custom and not abuse of power. The exercise of jurisdiction to Donoghue (or make banishment order is not M’Alister) v absolute, but subject to law. Stevenson [1932] AC 562 Constitution Article 111 The Defendant seeks to rely on the Caparo Industries plc Constitution (Article 111) as v Dickman [1990] protecting their rights of banishment UKHL 2; [1990] 1 All and punishment. Article 111 is an ER 568 interpretive provision and does not assist the Defendants. Faulkner v Keffalmos 197 1 45 ALJR 80
Baker v Willoughby [1970] AC 467
Environment Agency v Empress Car Co [1997] 2 AC 22
Chappel v Hart
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(1998) 195 CLR 232
Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29; (2004) 217 CLR 469
Miller v Miller (2011) 242 CLR 446
OF Nelson v Sia’aga & Others [2010] WSSC 43
London Association for the Protection of Trade v Greenlands Ltd. [1916] 2 AC 15
Cassell & Co. Ltd v Broome [1972] AC 1027).
Chapman v Lord Ellesmere [1932] 2 KB 431
Damages Punitive damages In Leituala (supra), Vaai J assessed $50,000 as punitive damages in a case involving the banishment of a family following a minor incident between a school boy and the son of a pastor, in an action based on a breach of the Constitution Article 13. Here the Defendants have breached the Constitution Article 9 and 13, but further were vicariously responsible for the destruction of valuable property and continued interference with the crops and plantation of land to which the Plaintiff’s family were entitled.
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The conduct (of the Village Fono) breached orders made by the Land and Titles Court, an institution established by the Constitution. Exemplary damages The Plaintiff and her family were treated with contempt. They were not afforded the opportunity to be heard on the banishment issue, were given but short and unreasonable time to vacate the premises, refused permission to return to at least check their assets, provided with no opportunity to remove their livestock and had their plantation destroyed long after the event. No other compromise was ever offered by the Defendants and the affidavit of Fetaoai Vau Samau, paragraphs 12 and 15 is self serving, equivocal and disingenuous. Afu’s attempt to compromise referred to in her affidavit paragraph 12 was rejected and Fetaoai Vau maintains at paragraph 13 that it is the fault of Afu.
Effect of joint and several judgment It is important to state the effect of a joint and several judgment. It means that each Defendant is equally responsible for the whole of the damages as stated in the orders. If the collection Fono does not have the resources, the Plaintiffs have a right of enforcement for the whole amount as against each Defendant personally. They are entitled to enforce the judgment against the personal assets of each Defendant, both real property and personal effects. Cases relied on cont’d… P.N.G. Aviation Services Pty Ltd. v State of Papua New Guinea [2000] PGSG 18 Alii and Faipule of Laulii v Trustees of the Estate of Jacob Helg Gibbons v Westminster Bank Ltd [1939] 2 KB 882 [2011] WSSC 48 Mount Cook Group Ltd V Johnstone Motors Ltd [1990] 2 NZLR 488 at 497 Neilson & Another v City of Swan [2008] WASCA 94 Rookes v Barnard [1964] AC 1129 Leinenga & Anor v Logan City Council [2006] QSC 294 Cassell & Co. Ltd v Broome [1972] AC 1027 Northern Territory v Mengel (1995) 185 CLR 307 Uren v John Fairfax & Sons Pty [1966] 40 ALJR 124 Sanders v Shell [1998] HCA 64; (1998) 196 CLR 329 Australian Consolidated Press v Uren [1966] 1AC 590 Three Rivers District Council v Bank of England (No. 3) [2003] Truth (NZ) Ltd v Bowles [1966] NZLR 303 2 AC 1 Corbett v Social Security Commissioner [1962] NZLR 878 Bennett v Commissioner of Police of the Metropolis (1997) 10 Taylor v Beere [1982] 1 NZLR 81 Admin LR 245 Richards v State of Victoria 1999 VR 8060 of 1999 Laws/Rules: L v Reading Borough Council 2001 1 WLR 1575 Village Fono Act 1990; Samoa Offenders Ordinance 1922; Midland Metals Overseas Pty Ltd. v The Christchurch Press Co Land and titles Act 1981; Ltd. [2003] 2 NZLR 298 Constitution of the Independent State of Samoa 1960; Supreme Court (Civil Procedure) Rules 1980; Law of Torts in NZ
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No. Name And Year Parties And Counsels, Subject matter Case Held, Judge(s), Decision Brief Facts Law/Authority 6. Lavea v Kerslake [2015] Parties: Appeal – LTC lacked Penaia II v Land and HELD: Appeals dismissed WSCA 3 (17 April 2015) Tagaloamatua Mulitalo jurisdiction to hear Titles Court Lisona Lavea (First matter JUDGE(S): Appellant) Honourable Justice Fisher AND One of the grounds of Honourable Justice Blanchard Manoó Lutena Mulitalo appeal advanced by both Honourable Justice Panckhurst (Second Appellant) counsel in the present AND case was that the DECISION: Tagaloa Sale Kerslake (First Supreme Court orders For the first appellant Mr Malifa Respondent) lacked reasonable based his jurisdictional argument on AND explanation. breach of art 14 of the Constitution. Alii and Faipule of Saluafata However art 14 is concerned with (Second Respondent) Recorded reasons enable compulsory acquisitions by the state. AND parties and their counsel “Compulsory acquisition” is a Poloai Michael von Reiche to understand the convenient phrase to refer to both (Third Respondent) rationale for decisions the compulsory acquisition of title and to decide whether, in and the compulsory acquisition of Counsels: the light of the reasons possession. But in either case it is L T Malifa and Lealiifano Dr I given, there are grounds confined to acquisition by the state. It Tanielu for First Appellant for an appeal. Reasoned is not concerned with rights of P Mulitalo for Second decisions at first instance competing private individuals. No Appellant are also of immense compulsory acquisition within the S Wulf and D Kerslake for value to a court sitting on scope of art 14 has been pleaded or First and Second appeal, particularly alleged here. It follows that Supreme Respondent where a historical land Court jurisdiction for the first Third Respondent in person case is involved. appellant’s cause of action cannot be founded upon that provision of the Brief Facts: Question on the Constitution. The appellants stated that jurisdiction of the LTC: although they and their for the first appellant, The second appellant’s jurisdiction family own customary land acknowledged that the argument rested on alleged breaches in Solaua the rent from the Lands and Titles Court of the Constitution. We have already
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land has been wrongfully normally had exclusive traversed that argument in relation to taken by the first jurisdiction over matters the first appellant’s claim. There is respondent and his family. relating to customary nothing additional in relation to the When the appellants sued land. However he second appellant. the respondents in the submitted that this case Supreme Court Vaai J was an exception in that adjourned the proceedings his client was relying on pending resolution of the Constitution. certain land matters in the Land and Titles Court. The For the second appellant, appellants appeal against Mr Mulitalo submitted the adjournment and related that each of the five orders. causes of action advanced on behalf of his client fell outside the jurisdiction of the Lands and Titles Court. He submitted that rights in relation to the land in question had already been determined by that Court. He also pointed to the Constitution as the basis for the fifth cause of action. No. Name And Year Parties And Counsels, Subject Matter Case Held, Judge(s), Decision Brief Facts Law/Authority 7. Attorney General v Malifa Parties: Appeal – seeking to Section 6 of the HELD: The Court agreed with AGO’s [2017] WSCA 7 Attorney General of Samoa include a party to Declaratory submission to include the petitioners appealing on behalf of the proceedings Judgments Act 1988 as parties in these proceedings. Registrar of Land and Titles gives the Supreme Court, Appellant This was an appeal by the Court the power to JUDGE: Attorney General on direct that the Honourable Justice Fisher Gatoaitele Savea Sano Malifa behalf of the LTC to proceedings be Honourable Justice Panckhurst
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of Afega, chief editor for include the petitioners served on such Honourable Justice Hansen Samoa Observer, Respondent (persons interested in persons as the Court the title bestowed). thinks fit. Such DECISION (Discussion) Counsels: direction may be The appeal is adjourned to the next S Ainuu and D J Fong for given at the time sitting of the Court of Appeal with a Appellant when the motion is direction that the respondent serve Ming C. Leung Wai and A filed or on the petitioners all relevant Lesa for Respondent subsequently. On documents from both the Supreme appeal we are Court and the Court of Appeal. clothed with the Leave is reserved to the petitioners to same powers as the appear before this Court when the Supreme Court. We appeal is next brought on for hearing. now exercise the It will, of course, be for the power conferred by petitioners to decide whether they s 6. wish to do so. If they do, they must give notice to the Court of Appeal and the other parties within one month of being served.
Brief Facts: A matai was bestowed on the respondent. The appointment was ultimately confirmed by entry in the Register kept by the Registrar of the Land and Titles Court. After the title was registered, three groups of interested persons lodged petitions to his appointment. In proceedings under Declaratory Judgments Act 1988, SC held that the petition was too late – once the title is registered, LTC lost jurisdiction to hear petition objecting it. A preliminary point is that the petitioners concerned (three groups of interested persons objecting to the bestowment) were not made parties to the current proceedings in either the Supreme Court or the Court of Appeal.
Discussions of decision: In this Court, the appellant renewed the submission that the petitioners ought to have been made parties or served. The Court of Appeal agreed. Grounds considered in deciding to include the petitioners as parties to the proceedings: Article 9(1) of the Constitution – that every person is entitled to a fair and public hearing. Section 5 of the Declaratory Judgments Act – provides that declarations made under that Act bind only those who had been parties to the proceedings or who had been served. Strictly speaking the outcome of the present proceedings would not be binding on the petitioners unless they are served and given the opportunity to be heard. Section 6 of the Declaratory Judgments Act gives the Supreme Court the power to direct that the proceedings be served on such persons as the Court thinks
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fit. Such direction may be given at the time when the motion is filed or subsequently. On appeal we are clothed with the same powers as the Supreme Court. We now exercise the power conferred by s 6. They will also need to comply with the normal Court of Appeal Practice Direction as to the filing of submissions by a respondent prior to the resumed hearing.
No. Name And Year Parties And Counsels, Grounds For Judicial Case Held, Judge(s), Decision Brief Facts Review Law/Authority 8. Attorney General v Malifa Parties: An appeal – SC does not Lavea v Kerslake HELD: Appeal is allowed and [2018] WSCA 1 (13 April have jurisdiction to [2015] WSCA 3 declarations made by the Supreme 2018) The Attorney General hear matters within the Court are quashed. (Appellant) jurisdiction of the LTC Malifa v President of Papaliitele Leiataualesa (relating to customary the Land and Titles JUDGE: Pauli Lagolasi Faalataitaua titles/customary land) Court [2014] Honourable Justice Fisher (second appellant) WSCA11; Honourable Justice Panckhurst Gatoaitele Savea SANO The Attorney General’s Honourable Justice Hansen MALIFA (Respondent) original notice of appeal Penaia II v Land and challenged the Supreme Titles Court [2012] DECISION: Counsels: Court’s conclusions as to WSCA 6 (31 May By virtue of s 34 of the Land and S Ainuu and DJ Fong for First the status of the petition. 2012); Titles Act 1981 (“the Act”) this Appellant dispute lies within the exclusive MV Peteru and M McFarland Later, in an amended Papalii Panoa Tavita jurisdiction of the LTC. Neither the for Second Appellant notice of appeal, the et al v Land and Supreme Court nor this Court is M. Leung-Wai and A Lesa for Attorney General added Titles Court & Ors permitted to make a declaration as to Respondent the ground that the (2016) (Unreported the right to institute proceedings in Supreme Court lacked judgment of Nelson the LTC. the jurisdiction to make J). the declarations sought. The respondent must pay the second appellant costs in the sum of $5,000. We do not order costs in favour of the first appellant. The jurisdictional argument which formed the basis for our decision was not advanced in that form in the Supreme Court.
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Brief Facts:
The respondent’s appointment as a Matai was confirmed by entry in the register of the Land and Titles Court (“LTC”). After the title had been registered three groups of interested persons lodged petitions challenging the appointment. The Supreme Court held that the petitioners were too late to object. The Registrar of the LTC appealed to this Court.
In an earlier judgment of 14 September 2017 we pointed out that the petitioners concerned ought to have been made parties to the proceedings in the Supreme Court. At our direction they were served with the appeal proceedings. One of the petitioner groups elected to be joined in the appeal. It is now the second appellant.
For reasons we will come to, our conclusion is that by virtue of s 34 of the Land and Titles Act 1981 (“the Act”) this dispute lies within the exclusive jurisdiction of the LTC. Neither the Supreme Court nor this Court is permitted to make a declaration as to the right to institute proceedings in the LTC.
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Appendix E - Special Courts of Other Jurisdictions considered This table highlights the legislative authorities that provide for the establishment and set up of the Special Courts in Samoa, NZ and Vanuatu. Highlighted also are the authorities providing for some of the features of these Special Courts such as their composition, jurisdiction, whether it deals with any matters relating to customs. Samoa - Land and Titles Court New Zealand - Maori Land New Zealand - Maori Vanuatu - Island Courts Court Appellate Court Establishment Establishment Establishment Establishment
1. Constitution of the Independent Te Ture Whenua Maori Act Te Ture Whenua Maori 1. Constitution of the Republic of State of Samoa 1960 1993 (Maori Land Act 1993) Act 1993 (Maori Land Vanuatu 1980 Part IX – Land and Titles Part 1 – The Maori Land Court Act 1993) Chapter 8 – Justice Section 103 – Land and Titles Court13 Section 6 – Maori Land Court to Part 2 – The Maori Article 52 – Village and Island Courts “…There shall be a Land and Titles continue Appellate Court Parliament shall provide for the Court…” (1) There shall continue to be a Section 50–Maori Appellate establishment of village or island courts (full text of provision in footnote) court of record called the Court to continue with jurisdiction over customary and Maori Land Court There shall continue to be other matters and shall provide for the 2. Land and Titles Act 1981 a court of record called role of chiefs in such courts Part 6 – Land and Titles Court the Maori Appellate Court Section 25 – Land and Titles Court 2. Island Courts Act 1983 (Chap 167) continued14 Section 1 – Establishment of Island “…There shall continue to be a Court courts15 of record called the LTC…”
Samoa (Composition) NZ (Composition) NZ (Composition) Vanuatu (Composition)
Land and Titles Act 1981 1. Te Ture Whenua Maori Act Te Ture Whenua Maori Island Courts Act 1983 (Chap 167) Part 6 – Land and Titles Court 1993 (Maori Land Act Act 1993 (Maori Land Section 2 – Supervising magistrate
13 There shall be a Land and Titles Court with such composition and with such jurisdiction in relation to Matai titles and customary lands as may be provided by Act. 14 (1) There shall continue to be a Court of record called the LTC, which is the same Court existing under the same name prior to the commencement of this Act. 15 Section 1 of the Island Courts Act 1983 (Vanuatu) – “The CJ by warrant under his hand, may establish throughout Vanuatu such island courts as he shall think fit…”
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Section 26 – President, Judges and 1993) Act 1993) (1) As soon as practicable after an island Assessors of the Court Part 1 – The Maori Land Court Section 51 – Constitution court has been established, the CJ shall Section 7 – Appointment of of court nominate a magistrate to be the The Land and Titles Court shall Judges (1) The Judge of the Maori supervising magistrate for that island consist of: (1) The Governor-General Land Court for the court. (a) A President who is the CJ or a may from time to time, by time being shall be the (2) “…a supervising magistrate shall have Judge of the SC or person qualified warrant, appoint fit and judges of the Maori such powers, functions and duties in to be a Judge of SC under Art65 of proper persons to be Judges Appellate Court respect of an island court as the CJ may the Constitution; and of the Maori Land Court. (2) Any 3 or more Judges prescribe” (b) Samoan Judges 16to be appointed (2) The Number of Judges shall have power to act in accordance with this Act; and appointed under this section as the Maori Appellate Section 3 – Constitution of island courts (c) Assessors to be appointed must not at any time exceed Court (1) The President of the Republic, acting according to this Act 14 The Maori Appellate on advice of the JSC shall appoint not Court may sit in 2 or more less than 3 justices knowledgeable in ** section 12A – Judges to have divisions at the same custom for each island court at lease immunities of HC Judges time, and each division one of whom shall be a custom chief The Judges have all the shall have all the powers residing within the territorial immunities of a Judge of the and jurisdiction of the jurisdiction of the court High Court Maori Appellate Court (2) A person may be appointed a justice for more than 1 island court (4) An island court is properly constituted when three justices nominated by the clerk are sitting
Samoa (Jurisdiction) NZ (Maori Land Court) NZ (Maori Appellate Vanuatu (Jurisdiction) Jurisdiction Court) Jurisdiction 1. Constitution of the Independent Te Ture Whenua Maori Act Te Ture Whenua Maori 1. Constitution of the Republic of State of Samoa 1960 1993 (Maori Land Act 1993) Act 1993 (Maori Land Vanuatu 1980
16 Section 30 (Role of Samoan Judges), Land and Titles Act 1981 – Samoan Judges are entitled to be heard on all questions before the Court, and to examine any party or witness in proceedings, and shall also advise the Court on any question referred by the Court to them.
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Part IX – Land and Titles Part 1 – The Maori Land Court Act 1993) Chapter 8 – Justice Section 103 – Land and Titles Court17 Section 6 – Maori Land Court to Section 58 – Appeals from Article 52 – Village and Island Courts “…The LTC shall have such continue Maori Land Court20 Parliament shall provide for the jurisdiction in relation to Matai titles (2) In addition to the establishment of village or island courts and customary lands… jurisdiction and powers Section 58A – Further with jurisdiction over customary and 2. Land and Titles Act 1981 expressly conferred on it by appeal to Court of Appeal other matters and shall provide for the Part 6 – Land and Titles Court this or any other Act, the from Maori Appellate role of chiefs in such courts Section 25 – Land and Titles Court Maori Land Court shall have Court21 continued18” all the powers that are 2. Island Courts Act 1983 (Chap 167) “…the Court shall have all powers that inherent in a court of record. Section 58B – Direct Section 1 – Establishment of Island are inherent in a Court of record…” Section 18 – General appeal from Supreme courts23 Section 34 – Jurisdiction of the Court jurisdiction of court19 Court from Maori (2) The Court shall have exclusive Appellate Court in Section 6 – Jurisdiction jurisdiction: exceptional circumstances Every island court shall have full (a) In all matters relating to Samoan (1) A party to an appeal jurisdiction set forth in warrant, subject names/titles under section 58 may, to the provisions of this Act, over causes with the leave of the and matters in which all the parties are SC appeal to the SC resident or being within the territorial against all or part of jurisdiction of the court. the determination of
17 Section 103 of the LTA 1981 - There shall be a Land and Titles Court with such composition and with such jurisdiction in relation to Matai titles and customary lands as may be provided by Act. 18 (2) In addition to the jurisdiction and powers expressly conferred on it by this Act, the Court shall have all the powers that are inherent in a Court of record. 19 Additional jurisdiction of the Court provided under section 18 (General Jurisdiction), (a) – (i) of the Te Ture Whenua Maoria Act 1993. 20 Section 58(1) Except as expressly provided to the contrary in this Act or any other enactment, the Maori Appellate Court shall have jurisdiction to hear and determine appeals from any final order of the Maori land Court, whether made under this Act or otherwise. 21 Section 58A(1) A party to an appeal under section 58 may appeal to the Court of Appeal against all or part of the determination of the Maori Appellate Court on the appeal.
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the Maori Appellate Section 7 – Criminal jurisdiction24 Court on the appeal]22 (**subsection (3) in Section 8 – Civil jurisdiction25 footnote) (2)An island court has no jurisdiction to hear and determine civil proceedings Section 59 – Appeals from relating to land. provisional determinations
Samoa NZ (Maori Land Court) NZ (Maori Appellate Vanuatu Anything relating to customs? Is it Anything relating to Court) Anything relating to customs? Is it subject to any other Court? customs? Is it subject to any Anything relating to subject to any other Court? other Court? customs? Is it subject to any other Court? Constitution of Samoa 1960 Te Ture Whenua Maori Act Te Ture Whenua Maori Island Courts Act 1983 (Chap 167) Section 71 1993 (Maori Land Act 1993) Act 1993 (Maori Land Section 10 – Application of customary law Land and Titles Act 1981 Act 1993) Subject to the provisions of this Act, an Section 34C – Samoan conciliation Section 132 – Change from island court shall administer the and mediation Maori customary land to Maori Section 62 – Additional customary law prevailing within the The Court shall refuse to hear a freehold land by vesting order26 members with knowledge territorial jurisdiction of the court so far matter if the parties to the matter and experience in tikanga as the same is not in conflict with any
23 Section 1 of the Island Couts Act 1983 (Vanuatu) – “…island courts … shall exercise jurisdiction defined under the warrant, and such jurisdiction as may be conferred by this Act or any other Act on island courts generally.” 22 Section 58B (3) This section is subject to section 75 of the Senior Courts Act 2016 (which provides that the Supreme Court must not give leave to appeal directly to it against a decision made in a court other than the Court of Appeal unless it is satisfied that there are exceptional circumstances that justify taking the proposed appeal directly to the Supreme Court). 24 Section 7(1) of the Island Court Act 1983 (Chap 167) - The criminal jurisdiction of an island court shall extend, subject to the provisions of this Act, to the hearing, trial and determination of all criminal charges and matters in which any person is accused of having wholly or in part within the territorial jurisdiction of the court, committed or participated in the commission of the offence. 25 Section 8(1) of the Island Court Act 1983 (Chap 167) - Subject to subsection (2) and other provisions of this Act, the civil jurisdiction of an island court extends to the hearing, trial and determination of all civil matters in which the defendant is ordinarily resident within the territorial jurisdiction of the court or within which the cause of action arose. 26 (1) The Maori Land Court shall continue to have exclusive jurisdiction to investigate the title to Maori customary land, and to determine the relative interest of the owners of the land.
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have not undertaken Samoan Section 68 – Parties and Maori written law and is not contrary to justice, conciliation witnesses may use Maori …the CJ may (if any party morality and good order language requests) direct that for Section 37 – Law to be applied that case, the Court will (1) In all matters before it, the Court Section 77 – Orders affecting consist of 3 Judges of the shall apply: Maori land conclusive after 10 Maori Land Court and 1 of (a) Custom and usage; years 2 other members (not (b) The law relating to custom and Any order in respect to Maori being Judges of the MLC) usage; land, shall not be annulled or – who has knowledge and (c) This Act and any other quashed or declared or held experience of tikanga enactment expressed to apply invalid by any court whether Maori. to the Court. on ground of want of Subject to subsection (1), the Court jurisdiction or any other Section 68 – Parties and shall decide on all matters in ground, in any proceedings witnesses may use Maori accordance with that it considers to instituted more than 10 years language be fair and just between the parties after date of the order. Exception: exercise of authority Section 77 – Orders of CJ to cancel or amend in s.44 affecting Maori land (for mistakes or omissions) conclusive after 10 years
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LIST OF REFERENCES
Texts/Books
1. Helen Xanthaki, Thorton’s Legislative Drafting (Bloomsbury Professional, 5th ed, 2013) 2. Komiti Fa’atonu o le Tuufaatasiga o le Tusi (eds), O le Su’ega Faalumaga i Tua ma Aga, Tala o le Vavau o le Tala Faasolopito e Faamautuina ai le Filemu ma Pulega Lelei I Aiga, i Nu’u, i Ekalesia (University of the South Pacific (Samoa), 2007) 3. Lauofo Meti, Samoa: Le Fauga O le Fa’avae (Lepapaigalagala, Sāmoa: Le Iunivesitē Aoao o Sāmoa, 2003) 4. Lauofo Meti, Samoa: The making of the Constitution (National University of Samoa, 2002) 5. Mark Aronson and Bruce Dyer, Judicial Review (Ligare Pty Ltd, NSW, 2000) 6. P. P Craig, Administrative Law (Sweet & Maxwell Ltd, 5th ed, 2003) 7. Paul Craig, Administrative Law (Sweet & Maxwell Ltd, 7th ed, 2012) 8. Saleimoa Vaai, Fa’amatai and the Rule of Law (National University of Samoa – Le Papa i Galagala, 1999) 9. Seumanutafa TLMRS ‘Legislative Drafting in the Pacific Context’ Guide: Greg Urwin Award and TC Beirne School of Law, University of Queensland, 2017 10. Seumanutafa TLMRS, Legal Pluralism in Plural Societies, Springer International Publishing AG, Switzerland, 2018
Case Laws 1) Ainu'u v Land and Titles Court [2011] WSSC 36 2) Akeimo v Appellate Division of the Land and Titles Court [2017] WSSC 36 3) Alaelua (Va’alepa Saleimoa Vaai) et al v LTC et al 1992 WSCA [1992] SamoaLawRp 6; [1980-1993] WSLR 531 4) Alaelua v Land and Titles Court [1992] WSLawRp 3; [1980-1993] WSLR 507 5) Aloimaina Ulisese & Others v Land & Titles Court (1998) WSSC 4 6) Amoa v Land and Titles Court [2011] WSSC 77 7) Amoa v Land and Titles Court [2011] WSSC 89 8) An application for a declaratory judgment by the Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter Day Saints (Unreported 22 November 2000, Sapolu Chief Justice; 2009, Sapolu CJ) 9) Asiata v Asiata [2007] WSSC 4 10) Attorney General v Malifa [2017] WSCA 7 11) Attorney General v Malifa [2018] WSCA 1 12) Tapusalaia Esekia v Appellate Division of the Land and Titles Court [2016] WSSC 141 13) Esekia v Land and Titles Court [2017] WSSC 145 14) In re the Constitution, Taamale v Attorney-General [1995] WSCA 1; 02 1995 15) Lafaialii v Attorney General [2003] WSSC 8 16) Land and Titles Court v Lautogia [2018] WSCA 4 17) Lauvai v LTC [2010] WSSC 185 (20 September 2010) 18) Lavea v Kerslake [2015] WSCA 3 19) LTC et al v Lautogia et al [2018] WSCA 4 20) Leituala v Mauga [2004] WSSC 9 21) Lemalu Fa’alafua & Ors v LTC & Ors [2018] WSSC 1 (4 Dec 2018) 22) Lemalu Saeni & Ors v Lemalu Fa’alafua & Ors [2019] WSCA 3 23) Malifa v Attorney General [2017] WSCA 7 24) Malifa v President Land and Titles Court [2014] WSSC 170 25) Malifa v President of Land and Titles Court [2014] WSCA 11 26) Mapuilesua v Land and Titles Court [2011] WSSC 131
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27) Mapuilesua v Land and Titles Court [2012] WSCA 7 28) Moala v Land and Titles Court [2016] WSSC 70 29) Penaia v LTC [2011] WSSC 84, 17 June 2011 30) Penaia II v Land and Titles Court [2012] WSCA 6 31) Penaia v President of Land and Titles Court [2012] WSSC 39 32) Peniamina v Land and Titles Court [2004] WSSC 12 33) Punafelutu Maiava RS Toailoa v Sapolu CJ & Sua Rimoni [2004] WSSC 33 34) Punitia v Tutuila [2014] WSCA 1 35) Rimoni v President of the Land and Titles Court [2011] WSSC 88 36) Saeni v Fa'alafua (2019) WSSC 37) Saeni v Fa'alafua [2019] WSCA 3 38) Sagato v Land and Titles Court [2011] WSSC 79 39) Savea v Sano Malifa v LTC & Ors [2014] WSSC 173 40) Sefo v AG [2000] WSSC 47 41) Silipa v President of Land and Titles Court [2017] WSSC 32 42) Suemalo & Malaga v Attorney General & Others [2003] WSSC 43) Taamale v Attorney General [1992] WSCA 1; 02 1995B (18 Aug 1995) 44) Tanielu v Appellate Division of the Land and Titles Court [2016] WSSC 113 45) Tanielu v Attorney General [2017] WSCA 3 46) Toailoa v Land and Titles Court [2004] WSSC 33 47) Toailoa v Sapolu [2006] WSCA 1 48) Toomalatai Lauvai v Land and Titles Court & Others [2010] WSSC 185 49) Tuigamala v Appellate Division of the Land and Titles Court and Vaosaoalii [2016] WSSC 90 50) Tuivaiti v Faamalaga [1980] WSSC 2 (17 December 1980) 51) Tutuila v Punitia [2012] WSSC 107
Acts of Parliament of Samoa 1) Constitution of the Independent State of Samoa 1960 (Samoa) 2) Land and Titles Act 1981 (Samoa) 3) Samoa Amendment Act 1951 (New Zealand) 4) Samoan Land and Titles Protection Ordinance 1934 (Samoa) (German Legislation used in Samoa) 1) Berlin Act 1889 2) Verordung des Gouverneurs betreffend die Ernennung einer Land und Titel Komission 1903- Land and Titles Commission Ordinance 1903
Act of Parliament of other countries Fiji 1) Constitution of the Republic of Fiji 1980 (Fiji) 2) Family Law Act 2003 (Fiji) 3) High Court Act 1875 (Fiji) 4) Magistrates Court Act 1944 (Fiji) New Zealand 5) District Court Act 2016 (New Zealand) 6) Employment Relations Act 2000 (New Zealand) 7) Resource Management Act 1991 (New Zealand) 8) Senior Courts Act 2016 (New Zealand) 9) Te Ture Whenua Maori Act 1993 (New Zealand) Vanuatu 10) Constitution of the Republic of Vanuatu 1980 (Vanuatu) 11) Island Courts Act 1983 (Vanuatu) 12) Judicial Services and Courts Act 2003 (Vanuatu)
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Subsidiary Legislation of other countries New Zealand Maori Land Court Rules 2011
Others 1) Sua le Lea – toto le Ata, the Land and Titles Court of Samoa 1903 – 2008 – Continuity amid Change, Fanaafi Aiono – Le Tagaloa, 2009 2) Epati A S; Lawyers and Customary Law Court, in Powles G and Pulea M (eds), in Pacific Courts and Legal Systems, IPS USP Fiji, 1988
This Report is also informed by the following:
1) The Report of the Parliament’s Special Inquiry Committee 2016 2) The Judiciary’s responses to the Report of the Parliament’s Special Inquiry Committee 3) The President Fepulea’i Atilla Ropati’s comments on the Land and Titles Bill 2019 4) The Land and Titles Bill 2019 5) The Judiciary’s responses to the Land and Titles Bill 2019 6) Record of Hansard on Parliamentary proceedings on the Land and Titles Act 1981
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