FETUUNAI MUNIAO LIPOTI O SUESUEGA GALUEGA FAATINO 1

“Suesue ma Iloilo tulafono a Samoa; ia atagia tu ma aganuu a Samoa i totonu o le Tulafono Faavae, i totonu o aiaiga o le Tulafono Faavae.”

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Table of Contents

BACKGROUND ...... 3

1. PART 1: INTRODUCTION ...... 4 A. Government ...... 4 B. Parliament XVIth Symposium ...... 5 C. Other Materials Relied Upon ...... 6

2. PART 2: CURRENT STATUS OF CUSTOM IN SAMOA’S LAWS ...... 7 A. Custom in the Constitution ...... 7 B. Custom in the Current Acts of Parliament of Samoa ...... 8

3. PART 3: CUSTOM IN THE COURT JUDGMENTS OF SAMOA ...... 12 A. Courts Jurisdiction on Customary Matters ...... 12 B. Guidelines for Judicial Procedures...... 13

4. PART 4: CUSTOM IN PACIFIC ISLANDS CONSTITUTIONS and LAW REFORM LEGISLATION ...... 21 A. Constitutions of Pacific Islands ...... 22 B. Law Reform Commission legislation of the Pacific Islands ...... 24

5. PART 5: LITERATURE REVIEW OF CUSTOM IN THE LAWS OF PLURAL COUNTRIES ...... 25 A. The Challenges in Accommodating Individual and Communal laws 25 B. Possible Solutions ...... 27

6. APPENDICES ...... 31 Appendix A – XVIth Parliament Symposium Presentations ...... 31 Appendix B – Custom in the Constitution ...... 32 Appendix C – ‘Custom in Law’ for Reform ...... 34 Appendix D – Custom in Pre-Independence Court Judgments ...... 37 Appendix E – Custom in Post-Independence Court Judgments ...... 41

7. LIST OF REFERENCES ...... 80

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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

autonomous 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.

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1. PART 1: INTRODUCTION A. Government 1.1 Government’s instructions under the 3 Terms of References above outline a clear vision of the Government for Samoa – that the essence of being a Samoan must be given more recognition and protection in its Constitution and other governing state laws.

What does this mean? 1.2 The essence of being a Samoan lies in Samoa’s customs and usage. As crucial as these are to Samoans, they are given very little reference, recognition and protection in its Constitution and totality of its governing laws (some 285 laws of Parliament as of December 2019). This is the reality and challenge faced by Samoa as a legal pluralist society as it aspires to have its customary rules recognized in its state laws. These challenges are not unique to Samoa, but are also experienced by other Pacific Islands and many other distant developing countries with similar historical backgrounds. What study would this exercise fall under in the area of legal theoretical and doctrinal thought?

Legal Pluralism – A Legal Theoretical Framework 1.3 ‘Legal pluralism’ is not a new concept, but the study of it only became prevalent around the 1970s and 1980s as societies became more and more aware of their need to understand the complexities of having 2 or more legal systems operating within one country/nation. Legal pluralism recognizes the existence of customary laws alongside state laws and it opposes the European positivistic legal philosophy of state domination. However dominant and imperious the state is, it is one among many ‘social groupings’ or ‘orderings’. In the same way the state needs an apparatus of social control such as laws and institutions for the institutionalisation of conflicts and resolution, similar needs are required by social orderings other than the state. Villages, districts and provinces of customary communities operate alongside the state, and at times the customary laws and the state laws may overlap, but they do not suppress each other to the point of destruction. The different legal systems may even supplement each other on issues particular to a social order and in which that social order provides the best resolutions.”1 The leading scholars on legal pluralism to name a few include Galanter,2 Griffiths,3 Baxi

1 Seumanutafa TLMRS, Legal Pluralism in Plural Societies, Springer International Publishing AG, Switzerland, 2018, 23, 24. 2 Galanter, Marc, 'Justice in Many Rooms: Courts Private Ordering and Indigenous Law' (1981) 19 J Pluralism & Unofficial L 25. 3 Griffiths, John, 'What is Legal Pluralism?' (1986) 24 Journal of Legal Pluralism 39.

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Upendra,4 Boaventura de Sousa Santos,5 Tamanaha,6 Merry,7 Chiba,8 and Moore.9

Government’s Instructions 1.4 In light of the above, the need to reflect Samoa in her laws by the recognition of Samoa’s custom and usages as part of the laws of Samoa is not new. This has been in the pipeline for some time; it was just a question of when to put this into action. At the start of the XVIth Parliamentary term of Samoa’s Parliament in March 2016, Samoa’s newly elected 16th Parliament sat through a Parliament Symposium to introduce members into the new 5 year Parliamentary term. It was here that the notion was brought back to the forefront for necessary action, when the speakers at this Symposium brought out the challenges of the conflicts between modern laws protected and supported under the Constitution, and the custom and usages of the Samoan people.10

B. Parliament XVIth Symposium Summary: Parliament XVI Symposium (29th – 31st March 2016)

1.5 The presentations presented at the XVIth Parliament - Symposium to welcome the new Members of Parliament after the General Elections 2016 highlighted the difficulty in accommodating both our introduced laws from overseas jurisdictions with Samoa’s custom and usages.

1.6 A total of six (6) presentations were reported in the Palemene Newspaper,1 from the 2016 Parliament Symposium.

1.7 These included presentations by: a. the Honourable Prime Minister, b. the Honourable Speaker of the Legislative Assembly, c. His Honour - Former Chief Justice and the Controller, and d. the Auditor General.

4 Baxi, Upendra, 'Disciplines, Repression and Legal Pluralism' in Peter Sack and Elizabeth Minchin (ed), Legal Pluralism, Proceedings of the Canberra Law Workshop VII (Pink Panther, ANU, 1986) 51. 5 Santos, Boaventura de Sousa, Toward a New Legal Common Sense (Thompson Litho Ltd. Scotland, 2nd ed, 2002). 6 Tamanaha, Brian Z, 'Understanding Legal Pluralism: Past and Present, Local to Global' (2008) 30 Sydney Law Review. 7 Sally Engle Merry, ‘Legal Pluralism’ (1988) 22 (5) Law and Society Review 869-896. 8 Masaji Chiba (ed), Asian Indigenous Law: In Interaction with Received Law (London and New York KPI, 1986). 9 Moore, Sally Falk, 'Law and Social Change: The Semi-Autonomous Field as an Appropriate Subject of Study' (1973) 7(4) Law and Society Review 719. 10 The electoral laws of Samoa from which candidates are appointed require a candidate must comply with customary criteria, such as having carried out ‘monotaga’ or village services in the village, have resided in the village for 3 years, and so on.

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1.8 For the purpose of this review, the most relevant presentation was His Honour - Former Chief Justice Sapolu’s presentation entitled ‘Parliament and the Courts’. This led to active, expressive and passionate discussions on one of the most challenging areas of law, that of the accommodation of both the western laws and customary laws in Samoa and other plural societies. Most Members of Parliament were unhappy that the Samoan customs and usages are trumped by the Constitutional fundamental rights. They questioned if this will continue to suppress and negatively affect the existence of the faa Samoa. According to the Former Honourable Chief Justice Sapolu, as long as the Constitution of Samoa says it is the supreme law and fundamental rights are protected by the Constitution, the Courts will continue to comply with the Constitution as this is the supreme law of the land. Unless the Constitution says otherwise, the Courts cannot do otherwise. It is the Court’s duty to apply the law.

1.9 The accommodation of both legal systems provides challenges for Samoa. His Honour commented it has been difficult to arrange a happy marriage for the two. This continues to be a live and active issue in many post-colonial societies practicing more than one legal system.

(NB: Refer to Appendix A for the analysis table of the speeches presented at Parliament XVI Symposium)

C. Other Materials Relied Upon 1.10 This Report is also informed by the following material: i. The Report of the Parliament’s Special Inquiry Committee 2016 ii. The Judiciary’s responses to the Report of the Parliament’s Special Inquiry Committee iii. The President Fepulea’i Atilla Ropati’s comments on the Land and Titles Bill 2019 iv. The Land and Titles Bill 2019 v. The Judiciary’s responses to the Land and Titles Bill 2019 vi. Record of Hansard on Parliamentary proceedings on the Land and Titles Act 1981

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2. PART 2: CURRENT STATUS OF CUSTOM IN SAMOA’S LAWS

A. Custom in the Constitution Summary: ‘Custom’ in the Constitution

This Part examines how much reference is made in the Constitution on Samoan custom and usage.

1) The Constitution is in 13 Parts, 124 Articles and 3 Schedules (Schedules 1 and 2 repealed in 2015). 2) Of the 124 Articles of the Constitution, only the Preamble and 8 other Articles make reference to ‘Samoan custom and usage’. In essence, only7% of the Constitution make some reference to matters of ‘Samoan custom and usage’.

3) Of the 13 Parts of the Constitution, only Part 9 substantially provides for matters on ‘Samoan custom and usage’. Part 9 makes up only 4% of the Constitution.

4) This shows our current Constitution makes very little reference to Samoan custom.

NB: Refer to Appendix B for the analysis Table of the Preamble and the 8 Articles.

FIGURE 1 ANALYSIS 2.1 Of the 124 Articles of the Constitution, only 9 Articles make reference to ‘Samoan custom and usage’ i.e. only 7% of the Constitution recognizes ‘custom and usage’.

Figure 1 - CUSTOM IN THE CONSTITUTION (%)

93%

Customs and usage

Other

7%

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B. Custom in the Current Acts of Parliament of Samoa

Summary: Custom in the Current Laws of Samoa

This part examines how much reference of Samoan custom and usage can be found in the current laws of Samoa.

The following analysis can be made: 1) The percentage of Acts with custom references is very small (some 19.2%) compared against the existing laws. 2) Though there is a clear trend that the number of Acts that have reference to custom is increasing, 19.2% is a very minute percentage against the existing laws. Samoa must consider this seriously and make improvements in ownership of laws, put more Samoa in the laws of Samoa, ‘ia manu Samoa le Tulafono Faavae ma tulafono a Samoa’.

For illustration, there is some discussion and analysis of an example of an attempt to legislate and reflect Samoan custom and usage in a particular Act of Parliament of Samoa – the Samoan Status Act 1963.

a. The Acts of Parliament

FIGURE 2 ANALYSIS

Figure 2 - TOTAL NO OF ACTS ENACTED AND TOTAL NO OF ACTS WITH REF TO CUSTOM FROM 2007-2018 Year Total No of Acts Acts with ref to % of Acts with ref to Custom Custom 2007 242 26 10.7% 2008 258 31 12% 2009 255 32 12.5% 2010 262 34 12.9% 2011 271 36 13.2% 2012 270 38 14% 2013 274 44 16% 2014 278 47 16.9% 2015 277 50 18% 2016 285 53 18.6% 2017 288 55 19.1% 2018 287 55 19.16% 2019 285 55 19.29%

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2.2 Figure 2 is in a span of 12 years. Although not all laws have to be custom related, the survey here shows there is a huge disparity; the number of laws with some custom and usage or practice reference is significantly compared against the total number of laws passed by the Parliament of Samoa each year.11

FIGURE 3 ANALYSIS 2.3 Figure 3 is a demonstration of Figure 2 data in graph form. As shown, there is a significant difference in the number of laws with custom reference against the total number of laws passed each year by Samoa’s Parliament.12

Figure 3: Total No. of Acts & Total No of Acts with reference to Custom 2007-2019 350

300

250

200

150

100

50

0 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019

Total No of Acts Acts with ref to Custom

2.4 To this year 2020, there is only some 19% of the 285 (Samoa’s laws to December 2019) that make reference or have some relation to Samoan custom and usage. This is still a small number against the total number of existing laws. There is however a clear trend that the number of Acts that have reference to custom is increasing and this is positive for the future of Samoa. (refer to Figure 3)

11 Updated data from original source: Seumanutafa, see above n.1. 12 Ibid.

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b. Examples of Acts of Parliament with ‘Customs’ References

2.5 The following are some examples of custom referred to in the current Laws of Samoa:13 i. Acknowledge customary land/practice is exempted from the Act (E.g.) Public Trust Act 1975, Wills Act 1975, Slaughter & Meat Supply Act 2015

ii. Objectives of the Act to be in line with customary practices and usages – but doesn’t say in the Act how these objectives are to be carried out (E.g.) SLRC 2008, Prisons & Corrections Act 2013, Lawyers & Legal Practitioners 2014, Medical Council Act 2015, Village Fono Act 1990

iii. Appointee to be knowledgeable of Samoan custom – criteria for Ombudsman – Act also doesn’t require the Ombudsman to carry out the Ombudsman’s functions with regard to the custom & traditions of Samoa.

iv. Customary related term (e.g.) ‘traditional birth attendant in MOH Act 2006 and the Allied health Professionals Act 2014.

v. Customary land expressed in Act relating to government officers seeking access on to customary land for specific purpose (e.g.) SWA Act 2003, Telecommunications Act 2005, and Broadcasting Act 2010.

vi. Recognition of Customary penalties in legislation Village Fono Act s8. The Courts to take account of penalty imposed by Village Fono.

vii. Electoral laws – Electoral Act 2019 and representation in Parliament, candidates to meet customary obligations and requirements.

viii. Other significant ‘custom’ related laws – Village Fono Act 1990; Internal Affairs Act 1995; Land and Titles Act 1981; Ministry of Women Affairs Act 1990; Leasing and Licensing of Customary Land Act 1965; Customary Land Advisory Commission Act 2013.

13 For a comprehensive list of custom mentioned in the current laws of Samoa refer to Seumanutafa TLMRS ‘Legislative Drafting in the Pacific Context’ Guide: Greg Urwin Award and TC Beirne School of Law, University of Queensland, 2017, p 58 – 74.

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c. Samoan Status Act 1963 – Legislation with Samoan Custom and Usage Requiring Reform

2.6 The Samoan Status Act 1963 (SSA 1963) is an example of some Samoan custom and usage reflected in law, particularly a person’s eligibility to hold a matai title and their rights/entitlements in relation to customary land. The objective/purpose of this Act is to amend the laws as to Samoan status and as to eligibility to hold matai title.

2.7 Although the SSA 1963 expressly provides under section 2 (Samoan custom and usage) that it is in accord with Samoan custom and usage, there are noted inconsistencies in its provisions with the Samoan custom and usage, particularly a person’s eligibility to hold a matai title or to become a matai.

2.8 As it is drafted, the SSA 1963 attempts to save the matai titles of Europeans conferred before 1963, these may continue as honorary titles. The Act also requires non-indigenous Samoans to be declared a Samoan. Although the Act tries to limit matai title holders to only those who ‘are Samoan citizens and have Samoan blood’, this restriction may be seen as too restrictive and not in line with Samoan customs and usages, where in order to be bestowed a matai title, consideration is given to services and succession principles.14 Other criteria the families look at before the conferral of a title include those services rendered to the families and the communities and not on status or citizenship only.

(NB: Refer to Appendix C for analysis of how the SSA 1963 recognizes Samoan custom and usage).

14 Seumanutafa, above n 1, p85.

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3. PART 3: CUSTOM IN THE COURT JUDGMENTS OF SAMOA

Summary: Custom in Case Law

This Part examines how the Courts of Samoa have treated and decided on matters pertaining to or having some reference or relation to Samoa’s custom and usages.

Analysis: 1. On a search on available website data (paclii.org), a total of 53 cases were found to draw some analysis from, case law which relate to or contain some reference to Samoan custom and usage. This number is categorised as follows. There are 16 Court of Appeal cases, 34 Supreme Court cases and 3 District Court cases, in the period 1982 – 2019, i.e. 37 years. Further below are short summaries under the headings: Court of Appeal; Supreme Court and District Court.

2. Included in the analysis are 3 pre-independent cases. Although the custom of ‘banishment’ has been challenged as ‘unconstitutional’ in recent cases, these pre-independence cases show that in the early days, an Ordinance (Samoa Offenders Ordinance 1922) permitted for ‘banishment’ as a form of penalty. Woodward CJ of the High Court of NZ stated:

“The Ordinance aims at the promotion of the general welfare of the native people and it is entirely consistent with natural justice and legislative precedent to subordinate where necessary, the rights of the individual to the welfare of the people as a whole. Considering the history of this piece of legislation, its purposes, the safeguards it contains and the community for which it is made I cannot regard it as contrary to any principle of natural justice inherent in the law of England.” Inspector of Police v Tagaloa [1927] WSLawRp 1; [1921-1929] WSLR 18 (14 July 1927).

3. In the modern days as can be seen from the case law (of the last 37 years discussed in Appendix E, western principles and values prevail over customary principles and values. There is very little recognition of the customary context and laws of Samoa. There is little recognition of custom in the decisions by Samoa’s Courts. Needless to say, in this day and age, this has to change. There must be a higher regard for and conscious recognition of the ‘Samoan context’ in the course of developing court judgments, by the Judges of the courts of civil and criminal jurisdictions of Samoa.

4. Needless to say, some customs no longer apply to today’s environment. However, some are more relevant and more legitimate, more respected by the Samoan people as it is the way of life. It is these more helpful category of customs that may work well with the modern laws of today, in providing the best laws for the people of Samoa in today’s environment.

A. Courts Jurisdiction on Customary Matters Judicial Guidance Clause15 3.1 The formal courts lack jurisdiction on customary issues. Judges must be given more opportunity to apply customs where appropriate. Samoa’s Constitution should be amended to empower the courts to take account of Samoan customs in court proceedings,

15 Seumanutafa, above n 1.

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and to give due regard to the preamble of the Constitution. It is proposed here that the Constitution is amended to insert a ‘judicial guidance clause’, to require the courts to give regard to customs and usages of Samoa in the determination of court decisions. This gives the courts constitutional authority to consider the application of customs at the commencement of proceedings and not at sentencing only (section 8 Village Fono Act 1990), and it will still be within the scope of the Constitution. Other Pacific Islands also have laws requiring the judiciary to take account of customs in court proceedings.

3.2 For Samoa, this can be achieved by inserting the following after article 81 of Samoa’s Constitution. 81A. Judicial Guidance – Subject to the provisions of this Constitution, customs must be taken into account in all courts of Samoa.

3.3 This advances the recognition of customs in court decisions and encourages the recognition of customs and usages as ‘law’ as a result of court judgments under Article 111 of the Constitution of Samoa 1960. This provision is available in other Pacific jurisdictions. Section 11, Clause XI of the Constitution of the Federated States of Micronesia (FSM) provides that ‘Court decisions shall be consistent with this Constitution, Micronesian customs and traditions, and the social and geographical configuration of Micronesia’. Other states of the FSM incorporated similar constitutional provisions into the national Constitution.

B. Guidelines for Judicial Procedures Code of Judicial Conduct16 3.4 It is also proposed that Samoa’s Code of Judicial Conduct contain a provision that expressly requires a commitment by the Judiciary to consciously pursue the application of customs as part of the judicial procedures of the Samoan judiciary, where appropriate. Kiribati and Tuvalu have such provisions:

‘In deciding cases the law requires magistrates/judicial officer to evaluate the credibility of evidence, and in some cases, to decide what is reasonable. Such decisions require knowledge of local mannerisms and customs. Where a court takes local custom or tradition into account, it must say so in open court.’

‘Whatever a magistrate/judicial officer does he must do properly, according to the law and with respect for the customs and traditions of the people.’

16 Ibid.

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Recognition of Communal rights 3.5 The Constitution is the supreme law of the land. If recognition is indeed required to give recognition to customs in laws, customs must be reflected in the Constitution. This is unprecedented but not impossible. It is up to Samoa to develop overtime and build a local jurisprudence and Samoan common law to inform its future laws and legal system, appropriate and relevant for Samoa.

3.6 Research17 shows that “The courts of Samoa have limited jurisdiction to apply Samoan customs and usages. Article 111 of the Constitution defines the ‘law’ applying to Samoa as follows:

‘Law’ being in force in Samoa; and includes this Constitution, any Act of Parliament and any proclamation, regulation, order, by-law or other act of authority made there under, the English common law and equity for the time being in so far as they are not excluded by any other law in force in Samoa, and any custom or usage which has acquired the force of law in Samoa or any part thereof under the provisions of any Act or under a judgment of a Court of competent jurisdiction.

3.7 The scope within which the courts may apply customs is where such custom or usage has been included as part of an Act of Parliament, or that such custom or usage has been ruled by a court of Samoa to form part of the law of Samoa. Details of the hierarchy and the constitution of courts can be found in other Pacific Islands research. Relevant to this research is the statutory jurisdiction of courts to deal with customary matters. The Supreme Court has original, appellate and revisional jurisdiction and the jurisdiction necessary to administer the laws of Samoa. The District Court and its subsidiary division the Faamasino Fesoasoani, do not have jurisdiction on customary land matters. The only court with exclusive jurisdiction on customary matters is the Land and Titles Court. This court has its own Appeal Court, and its decisions are not reviewable by any other court. However, a Supreme Court decision in 1998 significantly reduced the powers impacted this, as will be further discussed below. The strict limitations posed by the Constitution on ‘customs’ being part of the ‘law’ in Samoa, was further enhanced by the courts. Customary laws are continually suppressed and struggle to form part of the ‘law’ of Samoa as apparent in the following discussions.

3.8 In the recent years, the courts have ruled in favour of individual rights over the long established customary powers of the village council to impose banishment. Three cases that demonstrate this have been discussed at length in other literature and will not be explored further here. In Sefo v Attorney-General, in applying the Constitutional freedom

17 Ibid.

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of religion provisions, the Court held that by virtue of Articles 11, 12 and 13 of the Constitution, the Alii and Faipule of the village of Saipipi have no jurisdiction or authority to prevent or restrict a particular religion or religious instruction within the village of Saipipi. In Lafaialii v Attorney-General, in applying Article 111 of the Constitution protecting the freedom of religion, the court held that the banishment by the village council of the plaintiffs and their families on the basis they practised a different religion was a violation of the plaintiff’s constitutional freedom. In Mauga v Leituala the court held that within the meaning of Article 13 (1) (d) and (4) of the Constitution, the right of all citizens of Samoa to move freely throughout Samoa and reside in any part thereof is not limited by the powers of the village council under the Village Fono Act 1990 (Samoa).

3.9 There have been earlier court judgments in which the courts decided in favour of customs. However, as indicated in the above cases, due to the shift over time, more emphasis is placed on individual rights. This exercise of those rights such as the freedom of religion has weakened the traditional powers of the matai. The Chief Justice of Samoa considers that the Constitution is the paramount law of the land and the Courts must respect and uphold this. The courts will consider and apply customs as long as they do not interfere with the constitutional rights and freedom entrenched in the Constitution. The courts will continue to place emphasis on individual rights over communal rights, and customs will continue to be ignored in favour of individual rights.”

3.10 Provided below are case summaries under the relevant Court. This number of court decisions may be inconclusive as a significant number of decisions are unreported and/or not uploaded on data websites. Data available to this research in the time (restrictions) allowed is what is used for some analysis.

COURT OF APPEAL

ANALYSIS: 1. From 1982 to 2019, 15 Court of Appeal Cases have touched on customs in the following categories: matai suffrage (election system), banishment, ifoga, LTC jurisdiction, validity of a title under the German regime and reference to ‘custom’ in article 111 of the Constitution.

2. In the matai suffrage cases (2/15), the Court upheld customs pursuant to the wishes of the people to determine their own electoral system, suitable to them, the matai suffrage. With the introduction of universal suffrage in 1990 having gained the majority vote of the people, this further supports a crucial aspect of law making- laws

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must be informed by the people. This supports customs (the people/us) to be incorporated in the Constitution.

3. In the banishment cases (3/15), the Court placed much emphasis on banishment in these areas- when a banishment is valid/constitutional and who can make banishment orders. The outcome is that this ‘custom’ is well accepted by the courts as a power of the VF, which must be exercised cautiously and within limits. In cases where banishment is successfully challenged, this prompts the need for guidelines in the Constitution to allow banishment in exceptional cases without being challenged, if the grounds fall within the reasonable restrictions allowed by Part II.

4. In the ifoga matter (1/15), custom is considered in sentencing. It is noteworthy that this custom is well accepted by the courts to inform sentencing.

5. In the LTC matters (6/15), the cases have well established the exclusive jurisdiction of the LTC on land and titles matters. However, it has been held by the courts that its jurisdiction can be challenged if breaches of the constitution are proven. Over the years, people are continuing to appeal decisions of the LTC to the SC/CA by virtue of article 4. The LTC’s decisions continued to be challenged left, right and center, exposing itself to becoming an inferior court. With new challenges on leases of customary land, one can only imagine the number of cases that will arise in the future that affects (directly/indirectly) land and titles. This further prompts the need to institute sovereignty in the LTC by way of an autonomous LTC in the Constitution.

6. In 1 case relating to validity of title under the German regime (1/15), custom was relied upon regardless of the different regime. The Court was bound by the decision of the German regime which validated the transfer of title in dispute.

7. The 2 cases (2/15) with references to ‘custom’ under article 111 of the Constitution are noteworthy.

SUPREME COURT

ANALYSIS: 1. From 1961 – 2019, the Supreme Court has considered matters of Samoan custom in both which can be classified in the following categories: (i) jurisdiction of Lands and Titles Court; (ii) Banishment cases; (iii) Status of land; (iv) Taking of Customary land; (v) Other matters.

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Jurisdiction of the Lands and Titles 2. Most of the Supreme Court cases (10/29) were initiated by motions/applications for judicial review (“JR”) against the decisions and activities of the Lands and Titles Court (“LTC”). These were substantially based on the ground that there had been alleged breach of constitutional fundamental rights and in some cases, traditional common law grounds.18The Court however have been consistent in upholding that save for where there have been breaches of constitutional fundamental rights, the LTC has exclusive jurisdiction on all matters relating to Samoan names, titles and customary land. This is evident by the fact that more motions and applications for JR have been dismissed/struck out more applications rather than accepted for the failure to establish how the circumstances of their cases to intervene with issues specifically reserved for determination of the LTC.19

3. It should also be noted that the majority of the JR cases were appealed alleging the violation of the right to fair trial (article 9) that was alleged as the ground for the applications for JR. Given this analysis, it is apparent that it is through this judicial review avenue that the formal Courts discusses or examine matters under the exclusive jurisdiction of LTC. In some instances, the Court have cited article 73 of the Constitution which provides for the original, appellate and revisional jurisdiction as provided by Act of Parliament.

4. A further analysis of cases over the years reveal that the number of Judicial Review cases continue to rise. More people are becoming aware and are taking advantage of this avenue in the hope that a different result from that reached by the Lands and Titles Court will be achieved through this Court.

Customary Authority (Village Fono) 5. Four (4) cases dealt with disputes that stemmed from the exercise of the Village Fono’s customary authority. In the banishment cases (4), the Supreme Court elaborately discussed this long established Samoa custom. The common central

18See Silipa v President of the Lands and Titles court [2017] WSSC 32, Malifa v Attorney General [2017] WSSC 16, Akeimo v Appellate Division of the LTC [2017] WSSC 36, Malifa v President of the Lands and titles Court [2014] WSSC 170, Penaia v President of the Lands and Titles Court [2012], Amoa v Lands and Titles Court [2011] WSSC 89. Ainuu v Lands and Titles Court [2011] WSSC 36, Nofoaiga v President of the Land and Titles Court [2008] WSSC 52, Peniamina v Lands and Titles Court [2012] WSSC 12, Alaelua v Land and Titles Court [1992] WSSC 1. 19See Akeimo v Appellate Division of the Land and Titles Court [2017] WSSC 36 (10 May 2017), Malifa v President Land and Titles Court [2014] WSSC 170 (17 April 2014), Penaia v President of Land and Titles Court [2012] WSSC 39 (22 June 2012), Amoa v Land and Titles Court [2011] WSSC 89 (17 August 2011), Ainu'u v Land and Titles Court [2011] WSSC 36; CP 145.2010 (31 March 2011), Nofoaiga v President of the Land and Titles Court [2008] WSSC 52 (29 July 2008), Peniamina v Land and Titles Court [2004] WSSC 12 (14 September 2004), Alaelua v Land and Titles Court [1992] WSLawRp 3; [1980-1993] WSLR 507 (16 July 1992).

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issues in these cases included queries on the constitutionality of the orders made under the circumstances and to who has standing and under what circumstances orders may be made that lawful. In upholding constitutional individual rights in the majority of cases (3/4), the Court held that banishment that despite that it has acquired the force of law, where it was exercised outside the limits of the Constitution of Samoa as the supreme law, banishment constitutes an unreasonable restriction to constitutional fundamental rights. 20 In the remaining case (1/4), the Court held that ostracism was a reasonable restriction to the constitutional freedom of speech and movement.21 As to who may make orders, the Court in most cases held that as no such power is expressly provided for under the Village Fono Act 1990, this jurisdiction is lawfully vested in the jurisdiction of the Lands and Titles Court.22

Status of Land 6. Six (6/29) Supreme Court cases relate to the status of the land in dispute.23 In these cases, the key issues for determination were whether the disputed land was customary land. The court in 3 cases held that land in those cases was not ‘customary land’. It should be noted that the pieces of land concerned were originally customary land although their status changed to freehold or government land through valid land agreements made during the German and NZ administration of Samoa and before the coming into force of the Constitution of Samoa 1960.24 In one (1) case, the Court upheld the plaintiff’s claim, on part of the parcel claimed as freehold land with the other part declared customary land that pertains to the title of Iaulualo of Faala (Palauli), as they had acquired the said land through adverse possession.25 In the remaining cases, the Court found that the land in question was “customary land” with one case confirming that the Supreme Court has no jurisdiction to deal with the other issues in this case as it has the jurisdiction lies exclusively with the Land and Titles Court.26

20See Tutuila v Punitia [2012] WSSC 107, Leituala v Mauga [2004] WSSC 9 (13 August 2004), Sefo v Attorney- General [2000] WSSC 18 (12 July 2000). 21See Vitale v Alii ma FaipuleGagaifolevaoLefaga [2017] WSSC 12. 22 See section 34 and 37, Land and Titles Act 1981. SeeTutuila v Punitia [2012] WSSC 107, Leituala v Mauga [2004] WSSC 9 (13 August 2004) and Sefo v Lands and Titles Court [2000]. 23 See Alii and Faipule of Lauli’i v Trustees of the Estate of Jacob Helg [2011] WSSC 48, OF Nelson Properties Ltd v Feti[2008] WSSC 19 (28 April 2008), Board of Trustees of the Congregational Church of Samoa v Pouvi [2003] WSSC 4 (14 February 2003), Vaosa v Attorney-General [2000] WSSC 23 (4 August 2000), Western Samoa Trust Estates Corporation v Tuionoula [1987] WSLawRp 1; [1980-1993] WSLR 181 (19 January 1987), Leulupoao v Sa [1983] SamoaLawRp 5; [1980-1993] WSLR 86 (13 April 1983). 24See OF Nelson Properties Ltd v Feti [2008] WSSC 19 (28 April 2008), Alii and Faipule of Laulii v Trustees of the Estate of Jacob Helg [2011] WSSC 48 (10 June 2011), Western Samoa Trust Estates Corporation v Tuionoula [1987] WSLawRp 1; [1980-1993] WSLR 181 (19 January 1987). 25See Board of Trustees of the Congregational Church of Samoa v Pouvi [2003] WSSC 4 (14 February 2003). 26See Vaosa v Attorney-General [2000] WSSC 23 (4 August 2000), Leulupoao v Sa [1983] SamoaLawRp 5; [1980-1993] WSLR 86 (13 April 1983).

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Taking of customary land for public purposes 7. The court in the case of Elisara v Attorney General [2004] was concerned with the question of adequate compensation in the taking by government of some acres of customary land (Savaii).27 The plaintiffs in a claim under the Taking of Land Act 1964 claimed for a higher amount of compensation than the value agreed to and received by the village. On the question whether the ‘agreement’ between the Government and Salelologa to take customary land for public purposes (new township) was binding on Salelologa, Justice Vaai held this was a valid agreement.

8. It was accepted that as the tu’ua, the highest chief of Salelologa, and the leaders of the 7 fuaifale (groups of families) making up the traditional village of Salelologa, had accepted and signed acceptance of the $4 million from Government, the agreement was a valid agreement. However, on appeal, the Court of Appeal applied the western meaning of the term ‘agreement’ i.e. there must be an offer, acceptance, consideration passed, intention to be bound, and a meeting of the minds on certain terms. This Court of Appeal with a composition of foreign Judges were not persuaded that 600 villagers, inclusive of the youth and children of Salelologa agreed to this agreement, for their customary land to be taken for public purposes. The Court of Appeal reverted the matter back to the Supreme Court having not been satisfied the ‘agreement’ was a valid agreement. This highlights the conflicting interpretations of what constitutes a ‘valid agreement’. Unfortunately, this case is one of the many examples of how the Samoan way of interpreting matters, and Samoa’s custom and usages will always be trumped by the western way of thinking. Unless Samoa’s custom and usages are given recognition in a more expressive and realistic way in Samoa’s Constitution, Samoan practices, customs and usages will not be respected by formal laws.

Other Matters 9. The remaining cases (8/29) involved matters in which the Courts have considered matters of custom in the area of laws as follows: family law matters (customary marriage and customary adoption);28 electoral laws (matai system and suffrage);29 criminal law (consideration of custom in sentencing and as a defence),30 and

27See Elisara v Attorney General [2004] WSSC 29 (25 June 2004). 28 See Samoan Public Trustee v Collins [1961] SamoaLawRp 2; [1960-1969] WSLR 52 (13 December 1961), Ao v Leota [1978] WSLawRp 3; [1970-1979] WSLR 202 (18 August 1978), Public Trustee v Telesi [2010] WSSC 161 (1 November 2010). 29 See Pita v Attorney General [1995] WSSC 1; Misc 14033 (22 August 1995). 30 See Police v Kini [2016] WSSC 16.

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references to the ‘custom’ as defined under article 1111, Constitution. 31

DISTRICT COURT

ANALYSIS: 1. Three (3) District Court cases found on PacLii is worth mentioning in how they make reference to custom and usage.

2. Two (2) out of three (3) cases dealt with the Court determining whether the accused intentionally damaged the complainant’s property. Custom and usage was made reference to when defence counsel raised ‘claim of right’ in s11 of the Crimes Act 2013 as a defence. This section states that all common principles of the common law that are consistent with the provisions of this Act and any other applicable enactment and with the custom and usage of the people of Samoa recognized by the formal Courts which provides a justification or excuse for any act or omission, or a defence to any crime under this Act or any other enactment shall be applicable to any charge.32

3. One (1) out of three (3) cases makes reference to custom and usage as the Court was to determine whether the Defendant charged met the requirement of ‘monotaga’. To do this the Court looked into the definition of ‘monotaga’ set out in Section 5(3A) of the Electoral Act 1963. Monotaga is defined as the compulsory service, assistance or contribution (such as, contribution in form of cash, kind or goods) rendered for customary, traditional or religious activities, events, function or similar purposes pursuant to the customs of a particular village. The Court was required to see whether the Defendant had made any contribution, compulsory services to his village according the particular customs of that village. Hence, this definition acknowledges that each village have their own customs.

4. All in all, custom and usage is referred to in the District Court cases as they are mentioned in a provision of the referred legislation. In each of these cases, the Judges do not go on to elaborate or mention which customs have been recognized in the formal Courts as per s11 of the Crimes Act 2013 nor does it set out or mention the customs of a particular village that needs to be considered when determining whether the Defendant has met the requirement of ‘monotaga’.

31 See Malifa v Sapolu [1999] WSSC 47 (30 March 1999), Alaelua v Land and Titles Court [1992] WSLawRp 3; [1980-1993] WSLR 507 (16 July 1992), Alesana v Samoa Observer Company Ltd [1998] WSSC 1; CP 042 1997 (6 July 1998). 32 See Police v Sapolu [2017] WSDC 10 (31 July 2017), Police v Fasio [2017] WSDC 9, s11 Crimes Act 2013.

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5. This very little mention of custom in the District Courts are supported by such sections of the District Court Act as section 24(2) which says ‘The (District) Court has no jurisdiction to hear or determine any action which in any way relates to or affects customary land.’

3.11 The above discussions show a small percentage of recognition of custom in court decisions, or even the mere reference to the contextual customary environment. Needless to say, in this day and age, this has to change. There must be more emphasis on the context of Samoa, the customary Samoan environment all Samoans live in.

4. PART 4: CUSTOM IN PACIFIC ISLANDS CONSTITUTIONS and LAW REFORM LEGISLATION

Summary: Custom in Laws of Other Pacific Islands Constitutions

In the absence of fully-fledged research of all the laws of the other Pacific jurisdictions, this section identifies how much reference of custom is found in the ‘Constitutions’ and ‘Law Reform Commission’ enabling laws of other Pacific Islands jurisdictions.

In summary, a review of other Pacific Islands Constitutions and Law Reform legislation show that since gaining political independence, the Pacific Islands had aspired to adopt in their laws the context of their cultures, custom, and traditions to which they belong. However, there is little to no literature or data to confirm these aspirations have been achieved.

This research into how customs can be recognized in the formal laws of Samoa is a unique study. These are policy decisions that have not been made in other countries before. It will not be the last study and policies as Samoa continues to seek the best way to accommodate both worlds., The lack of solid research and literature to assist find answers for this research means Samoa has to be bold and take original steps and processes into achieving the Terms of Reference 1, that of the recognition of Samoan custom in Samoa’s laws.

4.1 Below are examples of Pacific countries which expressly mention custom in their Constitutions.33

33 Seumanutafa, above, see n 1.

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A. Constitutions of Pacific Islands i. FIJI: WE, THE PEOPLE OF FIJI, RECOGNISING the indigenous people or the iTaukei, RECOGNISING the indigenous people or the Rotuman RECOGNISING the descendants of the indentured labourers from British India and the Pacific Islands, RECOGNISING the descendants of the settlers and immigrants to Fiji, their culture, custom, traditions and language.

ii. KIRIBATI: WE THE PEOPLE OF KIRIBATI… We shall continue to cherish and uphold the custom and traditions of Kiribati.

iii. MARSHAL ISLANDS: WE THE PEOPLE OF THE REPUBLIC OF MARSHALL ISLANDS… We pledge ourselves to safeguard and maintain, valuing nothing more dearly than our rightful home on the islands within the traditional boundaries of this archipelago.

iv. MICRONESIA - FEDERATED STATES OF MICRONESIA: WE THE PEOPLE OF MICRONESIA… To make one nation of many islands, we respect the diversity of our cultures.

v. PALAU: In exercising our inherent sovereignty, WE, THE PEOPLE OF PALAU… Renew our dedication to preserve and enhance our traditional heritage, our national identity and our respect for peace, freedom and justice for all mankind.

vi. PAPUA NEW GUINEA: WE, THE PEOPLE OF PAPUA NEW GUINEA o acknowledge the worthy custom and traditional wisdoms of our people— which have come down to us from generation to generation o pledge ourselves to guard and pass on to those who come after us our noble traditions and the Christian principles that are ours now.

Papua New Guinean ways WE ACCORDINGLY CALL FOR: (1) recognition that the cultural, commercial and ethnic diversity of our people is a positive strength, and for the fostering of a respect for, and appreciation of, traditional ways of life and

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culture, including language, in all their richness and variety, as well as for a willingness to apply these ways dynamically and creatively for the tasks of development; and (2) traditional villages and communities to remain as viable units of Papua New Guinean society, and for active steps to be taken to improve their cultural, social, economic and ethical quality. vii. SOLOMON ISLANDS: WE THE PEOPLE OF SOLOMON ISLANDS, proud of the wisdom and the worthy custom of our ancestors… AGREE AND PLEDGE that - we shall cherish and promote the different cultural traditions within Solomon Islands… viii. TOKELAU: WE, THE PEOPLE OF TOKELAU, declare… In the conduct of our daily life we place our culture and custom first and continue to value them. The wishes of our people shall be reflected in our way of life. The family is the basis of the nation, and the positive approach we use for the raising of our families shall be the basis for making national decisions, the villages are the source of all authority in Tokelau. We, the people of Tokelau, now join together, [F]or the protection of our families and culture and for the protection of the independence of the villages in the issues that affect them, and for these purposes establish these principles for the Constitution of Tokelau. ix. TUVALU: AND WHEREAS the people of Tuvalu desire to constitute themselves as an independent State based on Christian principles, the Rule of Law, and Tuvaluan custom and tradition; … that the stability of Tuvaluan society and the happiness and welfare of the people of Tuvalu, both present and future, depend very largely on the maintenance of Tuvaluan values, culture and tradition… the guiding principles of Tuvalu are, the need for mutual respect and co-operation between the different kinds of authorities concerned, including the central Government, the traditional authorities, local governments and authorities, and the religious authorities. The life and the laws of Tuvalu should therefore be based on respect for human dignity, and on the acceptance of Tuvaluan values and culture, and on respect for them.

x. VANUATU: HEREBY proclaim the establishment of the united and free Republic of Vanuatu founded on traditional Melanesian values, faith in God, and Christian principles.

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B. Law Reform Commission legislation of the Pacific Islands 4.2 There is a recognition of custom in developing law reform in the Pacific Islands.34 a) In recognition of the multicultural characteristics of the New Zealand society, New Zealand’s Law Commission is required to make recommendations that take account of indigenous and multicultural society.35

b) For example: i. Samoa Law Reform Commission Act 2008 -’The Law Reform Commission Act of Samoa is to facilitate the review, reform and development of the laws of Samoa in order to promote Samoan custom and traditions.’ ii. Vanuatu Law Commission Act Cap 115, Samoa LRC Act 2008, s6 ‘To take into account local custom; to reflect in the law the distinctive concepts of custom, and to reconcile those concepts.’ iii. Cook Is Act 2007, s5, Samoa LRC Act 2008, s6 ‘Promote custom & traditions; enhance the social, cultural, economic and commercial development.’

4.3 As stated earlier, there is an absence of literature to record and discuss how successful other Pacific Islands have been in meeting their Constitutional aspirations to have their customs recognized at the highest levels, in their respective countries.

4.4 This study and resulting laws see Samoa take the bold move to give some regard to the customary context of the Samoan people. It is perhaps timely, as Samoa becomes of age; having been the first Pacific Island to gain Independence in 1962.

34 Ibid. 35 Ibid, 13.

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5. PART 5: LITERATURE REVIEW OF CUSTOM IN THE LAWS OF PLURAL COUNTRIES

Summary: Literature Review of Custom in Laws (The Part is also taken from ‘Law Reform in Plural Societies, Seumanutafa (2018))

The Pacific Islands are legal pluralist societies with the co-existence of two legal systems; the state legal system and the customary legal system. For many years there has been a struggle to merge the two systems due to the State Laws being founded on individualism and are written, and Customary Laws being communal and are unwritten. Some challenges and possible solutions are offered by the literature set out further below.1

To respond to the Terms of Reference No. 1 – How Samoan customs can be recognized and protected under the Constitution, the following are some considerations and possible steps towards achieving the goal, that of the recognition of customs and usages in Samoa’s laws and Constitution.

1) Contextualize the laws according to the cultural values and customs of the population 2) More public awareness needed / Public access to laws 3) State to set up a Committee to consider collecting and recording Samoa’s customary practices 4) Strengthen the partnerships between the State and the villages 5) Customary compliance document/process 6) Indigenous language to prevail over English language 7) Samoan language and cultural protocols training 8) Judicial training is required for Professional ethics and court procedures 9) Develop a local jurisprudence for Samoa 10) Law making process/drafting manuals to be contextualized to the Samoan context.

A. The Challenges in Accommodating Individual and Communal laws 5.1 Research shows that the following are challenges encountered by Pacific Island nations when incorporating custom into their laws.36

1. Difficulty of merging customary law and formal state law due to their differences. Customary law is unwritten therefore it is difficult to ascertain, and Formal state law is written.

a. Developing nations require certainty from the legal system and customary

36 Ibid.

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models are unable to offer this. b. Customary law is viewed by those in authority as formless without structure and unfitted to the needs of the modern nation state.

2. There is restrictive scope of custom recognized in the Constitution (Supreme Law of Samoa). a. As a result formal Courts of Samoa: i. have limited jurisdiction to apply Samoan customs and usages, ii. has little local judicial capacity to develop a strong Samoan judicial base committed to adopting customs in the courts, and iii. lacks availability to debate the application of state laws in a customary society.

b. Judiciary of the formal Courts: i. have little to contribute to law reform that takes account of both the customary legal system and the state legal system. ii. of the Pacific countries mostly has no incentive to advance the principles and ideology of custom. iii. favour the easy option and apply the certain tried model (State Laws).

c. Although the preamble of Samoa’s Constitution declares that the Constitution is adopted based on the customs and usages of Samoa, in relation to law making, this declaration is unsupported by Constitutional provisions. The Constitution does not expressly obligate law makers to develop laws in Samoa’s customary context. Rather, it gives little scope for the application of customs as provided under Article 111 of the Constitution.

3. Irrelevant and unsuitable laws for our Pacific Island countries - a. Law Reform Commissions struggle to meet the real needs of the people as the formal state laws are generally not relevant to the majority of the population. b. Samoa’s laws that authorize law making were made in the absence of a consideration of Samoa’s customary environment. c. For a country where culture and respect for tradition is a central of life Samoa’s adoption laws contained in Part II of the Infants Ordinance (based on NZ’s adoption Act 1955), makes no mention of the practice of customary adoption, which is far more prevalent than State adoption. Nor does it refer directly to local culture.

4. Lack of senior judicial capacity – a. Samoa continues to engage expatriate appellate judges who may be unfamiliar

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with the customary context of Samoa. This hamper efforts and opportunities for Samoa’s courts to promote customs in a modern state legal system. b. The lack of knowledge of non-local magistrates and judges of the customs, culture and tradition of the community in which they lives.

5. Lack of professional training available for members of Parliament to develop capacity in modern law making- Parliament are generally an assembly of traditional leaders voted from the criteria of communal values to develop state laws that uphold individual rights principles. a. Therefore, training is as the Bills are in the English language, and the modern procedures of a formal assembly impact on their performance and duties to their constituencies. b. There is a lack of confidence to invoke avenues available such as the Private Members Bills (PMBs) to introduce and debate policies impacting on customary laws. c. The challenge for Parliament is to adopt relevant and compatible legal transplants for Samoa.

6. Little reference of customs in Lawmaking manuals - a. In the Cabinet Handbook, there is no express requirement for customs to be consciously filtered into either policy development by the Ministries or the draft laws developed by drafters. b. Similarly in the Legislative Drafting Handbook, there is no obligation placed on policy makers and drafters to include customary considerations in data and instructions that inform the policies and draft laws of the State.

7. English language prevailing over Pacific language – In Samoa Bills are mostly drafted in English first before translated in Samoan.

8. Lack of Funding/Limited Resources - There is competition for limited office budget

B. Possible Solutions 5.2 The following are solutions discussed in literature as to how to incorporate customs into our laws.37

1. Contextualize the laws according to the cultural values and customs of the population – a. The Law Reform Commissions need to adopt a law reform approach that is

37 Ibid, 107.

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fitting to the local circumstances of Samoa and its customary systems. b. It must apply best practices that take account of pluralism in the Samoan context. c. It is also recommended that where customs are to be reflected in legislation, the method of incorporation by references be adopted rather than a codification of customary laws. d. Policies that include the customary structures as part of the administrators of a reform must be encouraged. e. Parliament needs to adopt relevant and compatible legal transplants for Samoa

2. More public awareness needed / Public access to laws– a. The state must create public awareness of state laws and individual rights in the villages. b. The state must remove or lower the costs of laws and make court decisions accessible to the public in a language they understand. This is the first step towards minimizing the conflicts between customary laws and state laws.

3. State to set up a Committee to consider collecting and recording Samoa’s customary practices (adopting Namibia’s definition of ‘self-stating’ of customary laws), to guide the work of the state legal system. This project must allow for periodic reviews and updates.

4. Strengthen the partnerships between the State and the villages – a. The villages may consider appointing village mayors on more modern criteria. A more modern and active village mayor is more likely to engage the villages in law reform. b. The villages continue to develop village rules or bylaws in line with the Constitution. c. Two ways to manage budget constraints - - Engage the assistance of the villages, and - Reforms directly affecting custom must be flagged to be given favourable funding considerations as opposed to reforms that do not. This is because customary reforms affect the majority of the population whereas others impact on only a portion.

5. Customary compliance document/process– It is proposed that the Legislative drafting team of the Office of the Attorney-General be tasked with the review of draft laws for customary compliance.

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6. Indigenous language to prevail over English language – a. Drafting laws in the Samoan language as a first draft is encouraged to develop the Samoan language in legislation. b. Parliament must make more use of the Samoan version of Bills in parliamentary debate.

7. Samoan language and cultural protocols training - a. Required for all lawyers involved in developing law reform. b. Professional training is required for the legal profession, to be able to encourage the maintenance of the rule of law to promote Samoan custom and traditions c. Professional training must target specific needs of Pacific drafters. The practice of legislative drafting, like all other legal fields, must apply drafting styles capable of developing laws suitable to a plural society. d. Professional training for Parliamentarians on law making must include training on developing laws in a customary environment.

8. Judicial training is required for - a. Developing judicial discourse on areas where the decisions of the formal courts cannot be enforced in the customary village setting. b. Identify when customs can be recognised in the formal court proceedings. c. Developing expertise on alternative dispute resolution and to encourage ADR over adjudication and further, the judges of the LTC must undertake training on individual rights and the Constitution. A judicial clause must be inserted in the Constitution to empower all courts to consider customs in court proceedings.

9. Professional ethics and court procedures must be developed with reference to Samoa’s customary environment. This is to: a. encourage a better understanding of the legal structures of Samoa, and b. to remind the formal courts that they operate in a customary environment, their decisions must be made accordingly.

10. Develop a local jurisprudence for Samoa - a. However, the success of getting this off the ground depends entirely on a committed judiciary and active legal profession. b. It is proposed that in developing a local Samoan jurisprudence, the judiciary builds a Samoan common law rooted in the values underlying both customs and individual rights. c. In the event of a conflict, individual rights may be considered to be aligned

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with customs.

11. Lawmaking process/drafting manuals – a. Handbooks providing guidelines on a member’s duties to the village and constituencies and procedures for developing a private members bill are also recommended. b. Handbooks must be modified to require State officers to filter in customary considerations at every stage of policy development and draft laws.

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6. APPENDICES

Appendix A – XVIth Parliament Symposium Presentations No. Papers presented Reference to Custom Suggestions for revisions to the Constitution to include Custom 1. Hon. PM (1): No specific reference to Custom. Hon. PM discussed in his speech to revise the Constitution Fa’ata’atiaga o le where appropriate with relevant consideration. Faiga-Malo o Saunoa le Palemia: “O lo tatou Fa’avae, sa fai e o tatou tuaā i Samoa. na taimi sa talafeagai lelei i lenā vaitaimi. Peitai o lo’o manino lelei i a lātou saunoaga le tatau ona toe teuteu i le fa’autautaga tatau. O le tiute foi la lenā ole Malo, o le silasila toto’a: O a mea e tatau ona fai pe sui foi, fai loa.” 2. His Honour Substantially discussed custom. A lot of discussion and reference made towards the Former Chief A potential area of law reform fundamental rights embodied in the Constitution with Justice: The most challenging area of law that the Samoan specific mention to the issue of freedom of religion and the Parliament, the Courts has had to deal with has been how to traditional authority of the Alii and Faipule before the Courts and Law accommodate our introduced laws (Tulafono mai Supreme Court and LTC. Reform – XVI fafo) with our indigenous laws (tu ma aganuu a Parliament Samoa). This is particularly so in cases where there Symposium. is clash between fundamental rights enshrined in the Constitution and Samoan custom. The difficulty lies in the fact that fundamental rights are based on an individualistic philosophy and set of values while Samoan custom is based on a collective philosophy and set of values in which the interests of the individual are subordinate to the interests of the family of village community. Fundamental rights have always prevailed in the Samoan Courts in the event of a conflict with custom because they are embodied in the Constitution. One of the effects of such a decision by the Courts is to further the process of individualisation of Samoan society and way of life (fa’a- Samoa). As the law of Samoa presently stands, there will be instances where our indigenous laws and Samoan custom would simply have to give way when in conflict with the fundamental rights embodied in the Constitution (e.g. freedom of religion). The Courts have always held that in the event of a conflict, fundamental rights prevail over Samoan custom. It has been difficult to arrange a happy marriage.

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Appendix B – Custom in the Constitution Analysis of the Preamble and eight (8) articles of the Constitution which make reference to Samoan custom and usage/tradition

No. Article of the Reference to Custom Analysis Constitution 1. Preamble WHEREAS the Leaders of Samoa have declared that Samoa should be an Independent Preamble recognises that Samoa is based State based on Christian principles and Samoan custom and tradition on Christian principles and Samoan custom and tradition 2. Article 8 - (1) No person shall be required to perform forced or compulsory labour. Art. 8 provides that “forced or compulsory Freedom from (2) For the purposes of this Article, the term “forced or compulsory labour” shall not labour” should not include, amongst other forced labour include: things, any work or service which is … required by Samoan custom or which (d) any work or service which is required by Samoan custom or which forms part of forms part of normal civic obligations. normal civic obligations. 3. Article 20 – The Head of State shall not hold any other office of profit or any other position carrying Art. 20 provides that the HOS, during Disabilities of the right to remuneration for the rendering of services, or engage in any occupation his/her tenure, shall not hold any other Head of State for reward outside the functions of his or her office; but nothing in this clause shall profitable office or any other position prevent the Head of State from holding the pule over any customary land, from holding carrying the right to remuneration or any freehold land or other private property, or from disposing of the produce of any engage in any occupation for reward customary or freehold land. outside of the functions of his/her office. However, such cannot prevent the HOS from holding the pule over customary land or from disposing of the produce of any customary land. 4. Article 100 – A Matai title shall be held in accordance with Samoan custom and usage and with the Art. 100 provide that a “matai title” must be Matai titles law relating to Samoan custom and usage. held in accordance with Samoan custom and usage and with the law relating to Samoan custom and usage.

5. Article 101 – (1) All land in Samoa is customary land, freehold land or public land. Art. 100 provide that a “matai title” must be Land in Samoa (2) Customary land means land held from Samoa in accordance with Samoan custom held in accordance with Samoan custom and usage and with the law relating to Samoan custom and usage. and usage and with the law relating to (3) Freehold land means land held from Samoa for an estate in fee simple. Samoan custom and usage. (4) Public land means land vested in Samoa being land that is free from customary title and from any estate in fee simple.

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6. Article 102 - No It shall not be lawful or competent for any person to make any alienation or Art. 102 provides that it is unlawful to alienation of disposition of customary land or of any interest in customary land, whether by way of alienate or dispose customary land except customary land sale, mortgage or otherwise howsoever, nor shall customary land or any interest by an Act of Parliament authorising: (i) the therein be capable of being taken in execution or be assets for the payment of the debts granting of a lease or licence of any of any person on his or her decease or insolvency: customary land; or (ii) the taking of any PROVIDED THAT an Act of Parliament may authorise: customary land for public purposes (a) the granting of a lease or licence of any customary land or of any interest therein; (b) the taking of any customary land or any interest therein for public purposes. 7. Article 103 – There shall be a Land and Titles Court with such composition and with such Art. 103 provides that there must be a Land Land and Titles jurisdiction in relation to Matai titles and customary land as may be provided by Act. and Titles Court with jurisdiction in Court relation to matai titles and customary land

8. Article 111 – “Law” being in force in Samoa; and includes this Constitution, any Act of Parliament Art. 111 defines “law” to include any Interpretation and any proclamation, regulation, order, by-law or other act of authority made custom or usage which has acquired the thereunder, the English common law and equity for the time being in so far as they force of law in Samoa. are not excluded by any other law in force in Samoa, and any custom or usage which has acquired the force of law in Samoa or any part thereof under the provisions of any Act or under a judgment of a Court of competent jurisdiction. 9. Article 123 – (1) All property which immediately before Independence Day is vested in Her Majesty Art. 123 provides that all property Vesting of the Queen in right of the Trust Territory of Samoa or in the Crown in right of the Trust previously vested in the Queen, will be property Territory of Samoa shall, on Independence Day, vest in Samoa. vested in Samoa on Independence Day (2) Subject to the provisions of clause (3), land which immediately before (including customary land) Independence Day is, under the provisions of the Samoa Act 1921, Samoan land, European land or Crown land shall, on and after Independence Day, be held, under the provisions of this Constitution, as customary land, freehold land or public land, respectively. (3) All land in Samoa which immediately before Independence Day is vested in the Crown in right of the Government of New Zealand shall, on Independence Day, become freehold land held by Her Majesty the Queen in right of the Government of New Zealand for an estate in fee simple.

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Appendix C – ‘Custom in Law’ for Reform A detailed analysis of the custom and usage in the Samoan Status Act 1963 in line with the Objective of TOR 1

Samoan Status Act 1963 An Act to amend the laws as to Samoan status and as to eligibility to hold a matai title.

Provisions of Act Discussions / Analysis Status today? Section 2 – Samoan custom and Recognizes Samoan custom and usage in this Act No proposed amendments usage This Act is in accordance with Samoan custom and usage

Section 3 – Interpretation Provides for a very wide definition of the term “Samoan” Constitution of the Independent State of Samoa 1960

Samoan means a person who is a Citizenship Act 2004  Consider including a definition of a “Samoan” in the citizen of Samoa and has any Provides that a person can become a citizen by: Constitution or bringing the definition into the LT Act Samoan blood 1. Birth; 1981. 2. Descent (2nd generation limitation);  If the term ‘Samoan’ will be provided for in the 3. By permanent residence; Constitution, further details/provisions as to 4. By marriage to a Samoan citizen; requirements and different grounds of citizenship to 5. By investment (Citizenship Investment Act 2015). be provided in an Act (i.e.) the Citizenship Act 2004)

Land and Titles Act 1981 Section 2 - Samoan has the same meaning given to the term under the Samoan Status Act 1963

Section 4 – Court may declare a Court – Samoa Land and Titles Court (LTC) 1. Need to confirm which Court to be given jurisdiction to person a Samoan  Provides for the jurisdiction of the LTC to declare deal with citizenship matters – LTC or SC - and make The Court may, at any time and on a person a Samoan. amendments accordingly. the petition of any person, enquire  LTC’s jurisdiction is discretionary, invoked by a and declare whether or not the petition by any person seeking to be declared a 2. Also need to confirm and expressly state the authority petitioner, and his or her children Samoan. to administer the Act. under the age of 18 years, are Different Courts given jurisdiction under the respective Acts Samoans, and effect shall be given 3. In regards to the process to becoming a citizen, the to each such declaration for all Citizenship Act 2004 is the correct regulating law.

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purposes and in all Courts.  The Samoan Status Act 1963 gives the LTC general Perhaps it is timely to make decisions and revisions to jurisdiction to declare a non-Samoan person a this law; if it still serves the purpose it was enacted. Samoan.  The Citizenship Act 2004 authorises the Supreme Court to review decisions of the Minister regarding citizenship based on provided grounds to be met before a person can become a citizen of Samoa.

Section 5 – Register of Declared Confirm from MJCA if any existing Register of declared If the Samoan Status Act 1963 will be repealed, if there is Samoans Samoans under the Samoan Status Act 1963. such a list (MJCA says there is none existing to date), it is The Registrar to keep a Register of proposed that the Citizenship Act 2004 be amended to “Declared Samoans” to enter full Citizenship Act 2004 only provides for Register for save persons declared as Samoans under section 4 of the names and addresses of all persons citizenship by permanent residence and by marriage. Status Act 1963. declared by the LTC to be citizens, and dates of such declarations. Section 6 – Eligibility to hold a  This provision provides that only a Samoan is eligible  Section 20A of the LT Act 1981 provides for matai title to hold a matai title and exercise rights and qualifications to be a matai. entitlements/benefits attached to such matai title.  Consider whether that provision sufficiently covers/recognizes Samoan custom and usage in how a Limitation of criteria38 person attains a matai title. While this Act provides that it is in accordance with  Consider amendments to section 6 to be in line with the Samoan custom and usages, the criteria of eligibility for existing provisions under LT Act 1981 as to matai titles where one is required to be a Samoan citizen, is qualifications/eligibility of a person to hold a matai not a Samoan custom. Matai eligibility is primarily title OR repeal section 6 and incorporate any additional determined in accordance with succession principles, qualifications/criteria in LT Act 1981. irrespective of citizenship.

Under the LT Act 1981, section 20A - it provides for qualifications of a matai.

38 Seumanutafa, above n 1, p85.

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Section 7 – Status of matai titles This provision recognizes matai titles bestowed upon  Suggest to keep this provision, either in the Samoan already held by Europeans Europeans before the enactment of this Act. Status Act 1963 or if this Act will be repealed, for this Allows Europeans who held validly provisions to be incorporated into the LT Act 1981. conferred matai titles before 1963 Important to note that these matai titles held by to continue holding those titles Europeans (non-Samoans) are for complimentary honour  Given the numerous issues surrounding the bestowal after that year, as a complimentary only (no links to any customary lands). of matai titles on non-Samoans, suggest that section 8 honour only. (Compulsory Condition)39 of the repealed Samoan Status Ordinance 1934 be re-inserted in this 1963 Act or the LT Act 1981

Section 8 – Offences  Section 8 of the Samoan Status Act 1963 is specific to  Similar offence provision under section 21 of the LT It is an offence for a person other non-Samoan title holders who will breach section 6 Act 1981, but covers a wider scope of persons that may than a Samoan to use a matai title  Section 21 of the LT Act 1981 is wider in scope as it be liable to the offence of wrongful use of a matai title conferred in breach of section 6. provides for “a person” who wrongfully uses a -liable to 12 months imprisonment, but no fine – That person is liable to a penalty conferred matai title. suggest adding a fine (amount to be determined) not exceeding 1 penalty unit.  If the Samoan Status Act 1963 is to be repealed, it is proposed a fine is included in the penalty under section 21 of the LT Act 1981. Section 9 – Saving existing rights  If this law is to continue, these provisions to continue in land Section 10 – Repeals and other savings

39 Section 8 (The Samoan Status Ordinance 1934) – “Every Samoan title conferred upon a European whether before or after the making of this Ordinance shall be a complimentary honour to such European and shall not confer upon him any control over a Samoan district village or family or its land property or titles.”

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Appendix D – Custom in Pre-Independence Court Judgments

SUPREME COURT No. Case name Way custom was Commentary by the Judiciary referenced (i.e. Judiciary’s comments on custom and the Law) 1 & Inspector of Police v A case against the  The accused was charged and prosecuted for breach of a banishment order issued against him 2 Tagaloa [1927] accused (Tagaloa) for by the Acting Administrator under the Samoan Offenders Ordinance 1922 (“Ordinance”). WSLawRp 1; [1921- breach of a  This order of banishment ordered the accused to “leave the District of Tuamasaga North and banishment order 1929] WSLR 18 (14 July to remain outside of an area which includes that district for 3 months. made under the 1927) Samoan Offender’s  The accused was found in the District of Tuamasaga at Apia in disobedience to that order of Ordinance 1922 the Acting Administrator. Inspector of Police v Fuataga [1927]  This was the first Upon prosecution, the accused moved to dismiss the charge against him on these two (2) grounds: WSLawRp 1; [1921- case to discuss the (a) That the Ordinance was ultra vires as being repugnant to the laws of England and as application of 1929] WSLR 18 (14 July creating a species of penalty not contemplated by law; and “local 1927) banishment” (b) That the order itself was not validly made. under the Samoan Offenders Held: High Court Ordinance 1922. (1) The Ordinance was validly made under the powers contained in section 46 of the Samoa “The preamble Act 192140 and was not repugnant to that Act or to any other Act of the Parliament of New Judge - CJ Woodward indicates that the Zealand or of the United Kingdom or to the law of England. practice of what is (2) Further, that no impropriety was disclosed in the exercise of the power by the Acting there called "local banishment" was Administrator. prior to 1901 a custom among the The accused was thereby convicted.

40 The Administrator, acting with the advice and consent of the Legislative Council of Western Samoa, may make laws (to be known as Ordinances) for the peace, order and good government of the Territory not being repugnant to this Act or to Regulations under this Act, or to any other Act of the Parliament of NZ, or the UK in force in the Territory or to any regulations there in force.

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natives themselves and that from that N.B. Similar facts are shown in Fuataga's case and the same argument covered both cases. date up to the date of Fuataga is also convicted. the Ordinance,

upwards of 20 years, the practice was recognised and controlled by law.

The Ordinance has placed in the hands of the highest and most responsible officer of the Government of this Territory a power formerly exercised by Samoan natives.

Judge’s Comments: Samoan Offenders Ordinance 1922 and the local practice/custom of Banishment.  A condition of the exercise of the power of the Administrator - shall be satisfied that the presence of the person intended to be dealt with is likely to be a source of danger to peace, order and good government.  The purpose then of the Ordinance is the highest and main purpose of Government, namely, the maintenance of peace and order and the Ordinance may not lawfully be used for any other purpose.  The terms of the Ordinance ensure that the degree of liberty of movement of the person dealt with shall be left as wide as is consistent with attaining that purpose.

 The Ordinance can be applied only to those to whom the native custom of local banishment was formerly applied, viz., to Samoan natives.  It may well be that in a native community where the power of prompt and peremptory local banishment - not to mention more drastic measures - has been traditionally exercised by chiefs, it would be subversive of all authority and order if the head of the Government were discovered to be lacking in that power however abundantly he and his native advisers might be satisfied of the necessity for its exercise.  It may well be that a line of conduct pursued by an individual native though not amounting to a breach of the law, though perhaps never

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contemplated as a possibility to be provided against by law, may yet in a native community become a serious menace to its peace and progress which it would be impossible to deal with unless some such power as this is promptly available to remove the individual from the locality where he is making mischief.

Natural Justice The Ordinance aims at the promotion of the general welfare of the native people and it is entirely consistent with natural justice and legislative precedent to subordinate where necessary, the rights of the individual to the welfare of the people as a whole.

Considering the history of this piece of legislation, its purposes, the safeguards it contains and the community for which it is made I cannot regard it as contrary to any principle of natural justice inherent in the law of England.

No. Case name Way custom was Commentary by the Judiciary referenced (i.e. Judiciary’s comments on custom and the Law) 3. Chu Ling v Bank of Discusses the This matter arose from consideration of an application for an interim injunction by Justice Western Samoa (No. 1) application of section Bathgate earlier in the year when he directed this matter to be referred to the Court for [1987] WSLawRp 4; 367 of the Samoa Act consideration of the effect of section 367 of the Samoa Act 1921 (“Samoa Act”) as far as the 1921 (which restricts [1980-1993] WSLR 258 enforcement of the rights of the mortgagee are concerned. the alienation of land (4 September 1987) under a mortgage without leave of the The exercise of a mortgagee bank’s power of sale was countered by an interim injunction that Supreme Court (Apia) court) and the relied upon section 367 of the Samoa Act 1921, which provides that “No security given by a Samoan advantage it confers over any property shall be enforceable, whether by the exercise of a power of sale or otherwise, Judge - Justice Hattaway upon a Samoan who without the leave of the Supreme Court." obtains a mortgage and disadvantage to Held: the rights of a mortgagee enforcing  Section 367 of Samoa Act 1921 is void by virtue of the provisions of the Constitution. power of sale.  All persons are equal before the law by virtue of Article 15 of the Constitution.  Section 367 confers upon a Samoan who obtains a mortgage an advantage or conversely a The definition of a disadvantage in trying to obtain a mortgage, based on the fact of being Samoan by descent “Samoan” as defined or place of birth. It follows s 367 is void pursuant to Article 2 of the Constitution. by the Samoan Status

Act 1963.

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Acts referred to: 1. Samoa Act 1921  Section 367 of this Act - "No security given by a Samoan over any property shall be enforceable, whether by the exercise of a power of sale or otherwise, without the leave of the Supreme Court." 2. Samoan Status Act 1963  “The Samoan Status Act 1963 defines a Samoan in section 3 to mean a person who is a citizen of Western Samoa; and has any Samoan blood.

Parties’ arguments & Judge’s comments/discussions:  As I understand it in this present case, the Defendant Bank has taken steps to exercise its power of sale and an application for injunction was made, and it was arising from that that the Judge’s attention was directed to section 367 of the Samoa Act.  The second part of the argument submitted by counsel for the Bank is that by articles 2 and 15 of the Constitution, the provisions of section 367 of the Samoa Act are invalid due to inconsistency with the Constitution.  The Defendant Bank argues that the restriction on the alienation of land by Western Samoan had already been removed by statute and that if section 367 is enforceable then it confers upon a Samoan who obtains a mortgage an advantage based on the fact that he is a Samoan by descent or his place of birth.  Section 367, counsel argues, is at variance with the provisions of Article 15 subsection 1 which provides for equality under the law.  A Samoan mortgagor could be given an advantage after he had made default under his mortgage by requiring the mortgagee to obtain leave to sell.  Conversely a Samoan could be at a disadvantage in seeking a loan from a Bank or from other lenders against any security, and the lender, being aware of the restriction under section 367, may prefer not to lend to them.  On the one hand Banks which lend on such security may be at a disadvantage when it comes to enforcing the power of sale until leave of the Court is obtained whilst on the other hand when applying for a loan a Samoan may be placed at a disadvantage for precisely the same reason.

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Appendix E – Custom in Post-Independence Court Judgments COURT OF APPEAL

No. Case name Way custom was Commentary by the Judiciary referenced (i.e. Judiciary’s comments on custom and the Law) 1. 2019 – Saeni v Does LTC have The appellants appealed against the decision of the SC which overturned the LTC decision and Fa’alafua [2019] jurisdiction to cancel reinstated the lease. WSCA 3 a lease over customary land? Held- appeal is dismissed Hon. Justice Fisher, Judge’s comments Hon Justice First, whether a lease should be granted, and on what terms, is solely for the Minister to decide. The Panckhurst, and LTC’s function in this process is purely advisory or consultative. The preliminary matters left to the Hon. Justice LTC under s 9 of the ACLA arise only if there is an objection. Harrison. The statutory scheme confirms that once granted by the Minister, the lease has full legal force and effect as a contract between lessor and lessee. A dispute among the beneficial owners has nothing to do with the relationship between lessor and lessee The Supreme Court does have jurisdiction to intervene in exceptional circumstances. The exceptions are well-established. The most important one arises where there has been a breach of the Constitution. In purporting to cancel the lease on this occasion the LTC was stepping outside its jurisdiction. The excess of jurisdiction was a constitutional breach. The breach was one which the Supreme Court was entitled to remedy.

2. 2018 – Attorney LTC has exclusive The appellant appealed against the decision of the SC which held that the petitioners (to an General v Malifa jurisdiction to already registered matai title) were too late to object. [2018] WSCA 1 (13 determine land and April 2018) titles dispute Held- appeal was allowed

Hon. Justice Fisher, Judge’s Comments Hon. Justice It could not be disputed that the present case involves a “matter relating to” a Samoan title. And Panckhurst to make a declaration in that regard is to grant a remedy in relation to that matter. So on the plain

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and Hon. Justice words of s.34 of the Land and Titles Act 1981, one might think that neither the Supreme Court Hansen. nor this Court could have the jurisdiction to consider the matter.

The exclusivity of the LTC’s jurisdiction has been emphasised repeatedly by the courts. There are special exceptions for enforcement, civil claims not reliant on customary land or titles, breaches of the Constitution and, arguably, civil consequences once land and title disputes have been resolved. But none of those possibilities is obviously applicable in this case.

It is with considerable reluctance that we conclude that neither the Supreme Court nor this Court is permitted to assist on this issue. We sympathise with the Chief Justice’s view that it would have been helpful to have the assistance of courts of general jurisdiction on an issue of this kind. The issue did not involve Samoan customs or usages. 3. 2018 – Lands and Judicial review - The appellant appealed against the decision of the SC who quashed the decision of the LTC and Titles Court v article 9 of the the decision by the President refusing leave to appeal. Lautogia [2018] Constitution WSCA 441 Held- appeal was dismissed

Hon. Justice Hansen, Judge’s comments Hon. Justice Fisher and While Nelson J did not explicitly undertake the two step process, he clearly took the view that the and Hon. Justice Vice President’s actions confirmed that his connection with the respondents were of such a Panckhurst nature as to give rise to an apprehension of bias in the mind of a fair-minded lay observer. We find no reason to differ from that assessment.

In our view it cannot realistically be contended that, having elected to go ahead before a panel chaired by the Vice President, the respondents should have reconsidered their position and revoked their waiver. It could never be suggested that they were keeping an objection up their

41 This was an appeal to the Court of Appeal against the Supreme Court’s decision of which, having found the rights of the respondent’s right to fair trial breached, quashed the decisions of the Lands and Titles Court and that of its President regarding a dispute over ownership of a customary land between the parties. The appeal was dismissed.

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sleeve. It is inherently unlikely that they ever regarded themselves as in a position to review their decision.

4. 2017 – Woodroffe v Reference to Article The appellant appealed against an Order of the SC striking out her claim for compensation under Fisher [2017] WSCA 9 111- definition of law the Constitution. (15 September 2017) to include ‘customs’ Held- appeal was dismissed Hon. Justice Panckhurst, Hon. Justice Tuala- Warren and Hon. Justice Vaepule Vaai

5. 2015 – Lavea v Unless the LTC has The appellants appealed against the decision of the SC to adjourn the proceedings pending Kerslake [2015] decided on customary resolution of certain matters in the LTC. WSCA 3 land disputes, then the SC can hear Held: the appeals were dismissed. Hon. Justice Fisher, matters provided that Hon. Justice it involves a breach of Judge’s Comments Blanchard and Hon. a constitutional right. In summary, the general rule is that any dispute between Samoan individuals or families relating Justice Panckhurst to customary land must be brought in the Land and Titles Court, not the Supreme Court. Where customary land is directly or indirectly involved, there are three ways in which a dispute could finish up in the Supreme Court:

(a) The plaintiff seeks to simply enforce a judgment or order already obtained in the Lands and Titles Court.

(b) The plaintiff sues on a civil cause of action which does not include rights in relation to customary land as one of its essential elements; or

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(c) The plaintiff brings a claim based on a breach of the Constitution and can persuade the Court that proceedings in the Land and Titles Court would not provide an adequate remedy.

In this case, the appellants failed to prove that the matters in dispute were already resolved by the LTC, to pursue a claim in the SC.

6. 2014 – Punitia v The powers of the The appellants appeals against the decision of the SC which ordered them to pay damages of Tutuila [2014] WSCA Village Fono to banish $963,710 to the respondent and an additional $18,585. 1 vs. Constitution Held: the appeal against liability was dismissed. The appeal against quantum of damages was Justice Fisher, allowed on a limited basis Justice Hammond, Justice Blanchard Judge’s Comments Breaches of constitutional rights do not normally result in extensive damage to property, certainly damage to this extent. Further, the damages are to be shared among 32 people. Taking those factors into account, along with the fact that this was a very serious breach of constitutional rights, we uphold that portion of the damages. 7. 2012 – Mapuilesua v Ouster clause (s 70 & The appellant appealed against a decision of the SC to strike out its application for judicial review. Lands and Titles 71 of LTC Act 1981 He resists the inclusion of the second and third respondents as true heirs and as members of the Court [2012] WSCA 7 and s 34 of old family of Mapuilesua. Ordinance) precludes Hon. Justice the SC from reviewing Held: the appeal was dismissed. Baragwanath, Hon. decisions of the LTC Justice Fisher and Breach of a Judge’s Comments Hon. Justice fundamental right This appeal was argued immediately after Mulitalo Tialino Saena Penaia II& Ors v The Land and Galbraith could not be proven Titles Court CA7/11 in which the same legal issues arose. The appeal fails for similar reasons to

those given in that decision delivered today.

8. 2012 – Penaia II v Ouster clause (s 70 & The appellants appealed against a decision of the SC to strike out its application for judicial

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Lands and Titles 71 of LTC Act 1981 review. Court [2012] WSCA 6 and s 34 of old Ordinance) precludes Held: the appeal was dismissed Hon. Justice the SC from reviewing Baragwanath, Hon. decisions of the LTC Judge’s Comments Justice Fisher and (except if Part II is Parliament has limited the extent to which the courts of general jurisdiction, being the Supreme Hon. Justice concerned) Court and this Court, may adjudicate upon decisions of the Land and Titles Court. We therefore Galbraith. Breach of considered as a threshold issue whether the Supreme Court had authority to entertain the fundamental right application for review and, as a result, whether we can consider the merits of the appeal. Having could not be proven concluded that the application is barred by ouster provisions of the Land and Titles Act 1981, on 29 May 2012

Both the language and provenance of ss 34(2), 70 and 71 point to stringent exclusion of judicial review save to the extent permitted by the Constitution. So too does the importance of the role of the Land and Titles Court that is recognised in the significance accorded to by the Constitution to the subject-matter of its exclusive jurisdiction, namely Matai title and customary land, each held in accordance with Samoan custom and usage and with the law relating to custom and Articles 100 and 101(2). Moreover “law” is defined as custom and usage which has acquired the force of law in Samoa (Article 111).

Even without s. 34(2), 70 and 71 there would be powerful reasons for the courts of general 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. 9. 2011 – Attorney The customs of ifoga The appellants appealed against the sentences of the respondents on the ground that they were Genera v Godinet considered in manifestly inadequate. [2011] WSCA 6 sentencing Held: The appeal was allowed Hon. Justice Baragwanath, Hon. Judge’s Comments Justice Fisher and [18] On an Attorney's appeal this Court will intervene to increase a sentence only if the sentence Hon. Justice is wrong in principle or manifestly inadequate: Police v Etelagi [2001] WSCA 2 at 6 para 3. If an

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Hammond increase is required, it will be no more than is essential: Attorney General v Ioane [1994] WSCA 20 at 2, para 2. In conformity with those principles, we are satisfied that the starting point here could not be less than 10 years. 10. 2009 – Ufiufi v AG Reference to Article Only reference to custom is in relation to the laws applied in this case, particularly the definition [2009] WSCA 1442 111 as a law applied of ‘Law’ in article 111 of the Constitution, which includes ‘custom’…

Baragwanath, Slicer and Fisher JJ. 11. 2008 – Vaai v Who can make The appellants appealed against the decision of the SC Judge Nelson which struck out the names Sivanila [2008] banishment orders in of the respondents as parties to the proceedings on the grounds that the proper defendant is the WSCA1343 accordance to Village Council of Satupaitea. Satupaitea’s customs? The Hon. Justice Held: The appeal was allowed. Baragwanath, Hon. Justice Slicer Judge’s Comments and The question of whether the respondent are in fact proper parties to the proceedings is yet to be Hon. Justice Fisher. resolved. Any such decisions would clearly be premature until the evidence has been heard, both as to the customs of this village in general and as to the particular events with which this case is concerned. The question of costs, like all other issues in this case, is reserved for determination by the Supreme Court

12. 2008 – Siaaga v OF Validity of title The appellants (matais of Palauli) appealed against a decision of the SC Judge Sapolu which held Nelson Properties obtained under the that the company (respondent) had secured good title to land. Ltd [2008] WSCA 15 German regime? Was the transfer in Held: The appeal was dismissed

42 The appellant was convicted of rape and attempted rape of his 14-year-old stepdaughter. He appealed against the convictions, submitting, inter alia, that there had been a miscarriage of justice. The appeal was dismissed. 43 The appellants appealed against a Supreme Court Judgment striking out the respondents as parties that they were not the proper defendant which banished and issued prohibition orders against the appellants. The appeal was allowed with the names of the first respondents’ names restored. However because the issue as to whether they are proper parties was yet to be resolved, the questions of costs and other issues in this case was reserved for determination by the Supreme Court.

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Baragwanath, Slicer accordance with the and Fisher JJ. customs and Judge’s Comments traditions of Palauli? Counsel for the appellant sought to challenge the decisions of the German courts as tainted by bias and cited the leading judgment in R v Bow Street Magistrate, ex p Pinochet Ugarte (No 2) [1991] 1 LRC 1. There is simply no evidence of any impropriety in relation to those transactions. At this point, almost a century later, this court must apply the principle omnia praesumuntur rite esse acta: all things are presumed to have been duly done. We accept as a valid root of title the grant by the representative of the people formally recorded by the representatives of the regime then exercising legal authority. It follows in our judgment that the transaction endorsed by Judge Dr. Sohubert is now unchallengeable.

The Government of Samoa having accepted the validity of the German regime, and there being no countervailing evidence to refute what is well known as a matter of historical fact, it is the duty of the judiciary also to confirm such validity, as we must do. 13. 1995 – In re the Banishment Law of Banishment: The Court upheld that as a long established custom, the law of banishment Constitution, is a reasonable restriction to individual freedom in article 13(d), Constitution. Taamale v AG [1995] WSCA 6 Held: The appeal was dismissed.

Coram: The Rt Hon. Judge’s Comments Sir Robin Cooke Constitution to be applied in Samoan setting: (President), Rt Hon. In largely endorsing the Chief Justice's approach, we share his view that the Constitution must be Sir Maurice Casey, applied with due regard to its Samoan setting...... Similarly in the 1982 case about matai voting and rights, Attorney-General v. Saipa'ia Olomalu, reported in (1984) 14 Victoria University of The Rt Hon. Sir Wellington Law Review 275, this Court attached weight in interpreting the Constitution to the Gordon Bisson. particular history and social structure of Western Samoa…..

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

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refer is that pertaining to the jurisdiction of the Land and Titles Court. While upholding the jurisdiction of the Land and Titles Court to order banishment, we do so on the express basis that the jurisdiction can only lawfully be exercised in accordance with the principles and safeguards identified in the present judgment.

14. 1995 – In re the The decision in The appellant argued that what was said in the Olomalu case about matai suffrage not being Constitution, Pita v Saipaia Olomalu entrenched was obiter. AG [1995] WSCA 6; 07 (above) was upheld 1995 (18 December relating to matai Held: The appeal was dismissed 1995) suffrage Judge’s Comments We believe, in depth - we are satisfied that matai suffrage is not entrenched by the Constitution Coram: Sir Robin and that Parliament acted lawfully in introducing a system of universal adult suffrage as Cooke P, Sir Gordon preferred by a majority of the people of Western Samoa voting in the 1990 plebiscite. Bisson J, and Sir Keith J. The Court upheld the decision by the SC Judge Sir Maurice Casey: "... the very logical objection that if Matai preference was considered important enough to be recognized as an underlying assumption of the Constitution, it would have been a simple matter to make the position clear by expressly including it, instead of leaving it hidden behind language which on its face says something quite different." 15. 1982 – In re the The system of matai This is an appeal by the appellants to set aside the decision of the SC which held that ss16 and 19 Constitution, suffrage was upheld of the Electoral Act 1963 are void pursuant to article 2 of the Constitution because it is Attorney General v inconsistent with article 15(1) and (2). Olomalu [1982] WSCA 1; Misc 5895, Held: The appeal was allowed. 5896, 5897, 5946, 5951 (26 August Judge’s Comments 1982) For the foregoing reasons we are convinced that article 15 does not have the scope contended for by the respondents and accepted in the judgment under appeal. In short we are satisfied that Coram: The Rt. Hon. the article was not intended to and does not relate to voting at general elections. When the Sir Robin Cooke Constitution is considered as a whole, we do not think that the question is left in any true (President) obscurity. Parliamentary electoral qualifications are a special subject, outside the purview of

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The Rt. Hon. Mr article 15 and not dealt with at all in Part II of the Constitution. Such provisions as the Justice Mills and The Constitution makes on the subject are to be found in Part V. Rt. Hon. Justice Keith It may be as well to add that the present judgment does not imply any view on the part of the Court about whether or not continuing to use the matai system as the main basis for elections to the Legislative Assembly is in the long-term interests of Western Samoa. We recognise the argument that in an indirect was the matai system is democratic. At the same time, as the Attorney-General accepted in argument, there may be room for doubt whether all those adult citizens who are not qualified for the individual voters' roll do have a really effective voice in the territorial constituencies - especially if they do not live in villages. These, however, are questions, not of law, but of social and political policy: questions which, on our interpretation of the Constitution, are to be decided by Parliament, not by the Courts. SUPREME COURT

1. 2017 - Vitale v Alii Banishment and The plaintiff pleaded 3 causes of action in tort against the decisions, the Alii and Faipule of and Faipule of Ostracism Gagaifolevao Lefaga. Gagaifolevao Lefaga As a form of [2017] WSSC 1244 punishment under Held: Plaintiff’s claim was dismissed. the Village Fono Act Chief Justice Sapolu 1990. Judge’s Comments Ostracism is a necessary measure of social control for the purpose of maintaining order, peace and harmony within a village and therefore a reasonable restriction on the constitutional rights of freedom of speech and freedom of movement.

44 The plaintiff pleaded 3 causes of action in tort against the decisions, the Alii and Faipule of Gagaifolevao Lefaga. Ostracism is a necessary measure of social control for the purpose of maintaining order, peace and harmony within a village and therefore a reasonable restriction on the constitutional rights of freedom of speech and freedom of movement. Ostracism is not of indefinite duration. An ostracised individual is always welcomed back into the village after a period of time. In the event that an individual is dissatisfied with an ostracism imposed on him by a village council, he has a direct right of appeal to the Land and Titles Court under s.11 of the Village Fono Act 1990. I conclude that the decision by the village council in this case to ostracise the plaintiff was not in breach of the plaintiff’s right to freedom of speech and expression and his right to freedom of movement provided under Article 13 of the Constitution.I am also doubtful that in this context a breach of the right to freedom of speech and expression and the right to freedom of movement is a ‘civil wrong’ which would fall within the meaning of ‘unlawful means’ as explained in OBG Ltd v Allan by Lord Hoffmann with whom the majority concurred. I reserve my position on that issue. The point was not addressed in the submissions of counsel.

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……. In the event that an individual is dissatisfied with an ostracism imposed on him by a village council, he has a direct right of appeal to the Land and Titles Court under s.11 of the Village Fono Act 1990. I conclude that the decision by the village council in this case to ostracise the plaintiff was not in breach of the plaintiff’s right to freedom of speech and expression and his right to freedom of movement provided under Article 13 of the Constitution. I am also doubtful that in this context a breach of the right to freedom of speech and expression and the right to freedom of movement is a ‘civil wrong’ which would fall within the meaning of ‘unlawful means’ as explained in OBG Ltd v Allan by Lord Hoffmann with whom the majority concurred. I reserve my position on that issue. The point was not addressed in the submissions of counsel. Motion for Judicial Review and further motion to strike out proceedings for judicial review.

Scope of the Village Fono Act 1990 The Court held that from the opening words of s.6 of the Act, the Village Fono is empowered to impose punishments for village misconduct in accordance with the custom and usage of the village which must include banishment as a form of customary punishment. The Chief Justice elaborated as a co-drafter of the Village Fono Act 1990 there was no intention that this Act was to remove any customary powers of the Village Fono to impose punishment but to add to those customary powers the powers provided in ss.6 (a) and (b).

Appeal One of the reforms which is provided in the Act is the right of appeal in s.11 from a decision of the Village Fono including a decision as to punishment. Previously, there had been no such right of appeal. One of the purposes of this provision is to provide an aggrieved person with the opportunity to appeal to the Land and Titles Court a decision of the Village Fono as to punishment. 2. 2017 - Silipa v Ownership of This case was initiated by a motion for Judicial Review and a further motion to strike out President of the LTC Customary Land and proceedings for judicial review. The motion for Judicial Review was based on against the decision [2017] WSSC 32 the authority of the of the Lands and Titles Court (LTC) to withdraw an appeal against a decision of the LTC by the Sa’o. second respondent who had passed away by the time of hearing of these motions. Chief Justice Sapolu

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HELD: (i) Withdrawal of appeal was an abuse of process which derived from the applicants of their constitution rights to a fair trial. Withdrawal set aside as invalid. (ii) 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.

Judge’s Comments Exclusive Jurisdiction of the Lands and Titles Court It was submitted by counsel for the first respondent that the applicants have no standing to continue the appeal filed by their late father Fui Silipa and FP because the appeal had been withdrawn by FP with the leave of the President. This is because of s.34 of the Land and Titles Act 1981 which provides that the LTC shall have exclusive jurisdiction, insofar as relevant, in all matters relating to Samoan names and titles and in all disputes between Samoans relating to customary land and the right of succession to property held in accordance with the customs and usages of the Samoan people….. Customary Land: Held under the authority of the Sa’o but subject to the law. It was submitted for the first respondent that the customary lands of a family are held under the authority of the family. FP as the new Sa’o of the family therefore had the authority to withdraw the appeal. I agree that customary lands are held under the authority of the Sa’o of the family. But the exercise of such authority is subject to the law. The Sa’o may not misuse his authority to the detriment of the members of his family. If he does, the exercise of his authority may be challenged in Court. Authority of the Sa’o is not the same as ownership of land. Furthermore, the authority of a Sa’o over customary land is not the same thing as ownership of the land. Customary land belongs to the family. The position of a Sa’o is analogous to that of a trustee who looks after the properties of the family for the good of the family. The Sa’o is not supposed to misuse his position. In addition, while the Sa’o has authority over the customary lands of the family, it cannot be said that the land in dispute in this case was under the authority of the title Fui held by Fui Silipa and FP. That was the very issue for determination in the 2004 proceedings whether the disputed land was under the authority of the title Fui or the title Tusani. The LTC determined that the land was under the authority of the title Tusani. So at the time of the leave to appeal proceedings, FP had no

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authority as a Sa’o over the disputed land. The purpose of the appeal was to set aside the decision of the LTC at First Instance and for the disputed land to be vested under the authority of the title Fui ….. 3. 2017 - Malifa v AG ‘Custom’ in the The Court in this case discussed section 23, Lands and Titles Act 1981 regarding the requirement [2017] WSSC 16 bestowment of title a Registrar before registration of a title must be satisfied with. This encompasses that where no according to the objections are lodged within 3 months and the Registrar is satisfied that the title belongs to the Justice Tuatagaloa village to which the village in which traditional bestowment ceremony was held and the appointment complies with title belongs to. Also other customs and usages of the Samoan people. These matters that the Registrar must be see s 23, LTA 1981. satisfied with under section 23(5) are (a) that the matai title belongs to the village in which the traditional bestowment was held and (b) the appointment complies with other “ customs and usages ” of the Samoan people. The “customs and usages” refer to is wide enough to include those matters referred to by the Respondent.

The applicant’s primary contention was that the petitions filed are subject to section 23 and are out of time. The Respondent’s argument is that the petitions filed are not filed as ‘objections’ pursuant to section 23 but are ‘petitions’ filed pursuant to sections 38, 42 and 43 and are therefore not caught by the notice period of three months under section 16 which applies to Part 4 and section 23 of Part 5.

HELD: The Court held that: (i) the ‘right’ to institute proceedings or bring a petition must come from an express provision of the Act which express provision or provisions come from Part 3 (customary land), Part 4(intention to appoint) and Part 5 (matai titles) of the Land and Titles Act 1981; (ii) Part 6 (ss. 38, 42 & 43) is administrative and procedure and do not create any rights to bring a petition before the Land and Titles Court; (iii) The petitions filed which is the subject of the application for declaratory orders said to be filed pursuant to sections 38, 42 and 43 cannot be sustained; (iv) The petitions filed were caught under section 23 and have been filed out of time pursuant to section 16. 4. 2017 - Akeimo v ‘Custom and usage’ This Court here was concerned with a motion for Judicial Review on a decision of the appellate Appeallate Division was mentioned here division of the Lands and Titles Court (LTC) and the motions by the respondents to strike out

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of the LTC [2017] as Judge was such motions. WSSC 36 referring to the lack of knowledge and HELD: The motion for Judicial Review was struck off. Chief Justice Sapolu understanding of such matters that is Judge’s Comments the disincentive for Doctrine of disqualification in the context of Samoa. employing overseas The approach to be adopted where there is an allegation of perceived bias under Samoan law was judges. stated by the Court of Appeal in Stehlin v Police [1993] WSCA 5 where Cooke P, in delivering the judgment of the Court, said: “The doctrine of disqualification for alleged bias has to be applied somewhat robustly in a jurisdiction of the size of Western Samoa. Indeed, the present tendency of case law around the world, including a recent decision of the House of Lords (R v Gough [1993] 3 A11 ER 724), is in the direction of robustness in this kind of matter... There was certainly no real danger of bias” Policy reasons against test for bias I must say that in the past, the work of the LTC had been brought to a halt at times because no Judge, or insufficient Judges, could sit to hear a case because of allegations of apparent or perceived bias. In about two cases, some of the parties called for overseas Judges to hear their cases even though such Judges would not understand the Samoan customs and usages relating to matai titles and customary lands. These allegations of apparent or perceived bias were often based on remote family connections or previous relationships of a Judge before his appointment as a Judge. The “reasonable suspicion of bias” and the “reasonable likelihood of bias” tests created real difficulties because of the unique circumstances of our own society in relation to family relationships and connections. I am, therefore, of the view that a test for bias that will make the Courts unworkable or difficult to operate efficiently would not be a good test for apparent or perceived bias for Samoa. 5. Esekia v Land and Custom in customary The applicants and third respondents became embroiled in a dispute concerning the pule over Titles Court [2017] land which is the certain customary lands at Siumu upon which had been situated a coconut oil business. (9 November) nature of the land Allegations of actual bias were raised due to Vice President Fuimaono presiding despite his under dispute in this earlier disqualification and admitted connections to parties who were ultimately successful. Justice Nelson case. HELD: The applicants right to a “fair hearing” and his right to trial “by an independent and

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impartial tribunal” under article 9(1) of the Constitution have been blatantly and egregiously breached by Vice President Fuimaono presiding in their matter.

The following orders were issued: (i) the decision of the first respondent dated 26 March 2013 is quashed. (ii) the decisions of the second respondent dated 20 May 2015 is also quashed(iii) The applicants original petition LC 9996 is to be re-heard by a differently constituted panel of the Land and Titles Court. 6. 2016 - Police v Kini ‘Custom and usage’ as The defendants are jointly charged for intentionally damaged properties belonging to contrary [2016] WSSC 16 provided for under to section 184(1) and section 33 of the Crimes Act 2013. The Court denied an application to amend LTA 1981, ‘custom’ in information relating intentional damage under section 184(1) is the charge of intentional Justice Tuatagaloa customary land as damage under section 184(1) not proven beyond reasonable doubt by the prosecution and was defined under the therefore dismissed, against the defendants. Constitution 1960, ‘custom and usage’ as HELD: (i) The charge of intentional damage was dismissed against the defendants, Paapaa Aliivaa recognized by Crimes and Tofiga Tasi. The charge of intentional damage under section 184(2)(a) is proven beyond Act 2013. reasonable doubt against the defendants, Ulu Vao Malo, Lance UluKini and Matuaileala Faaolaina UluKini; (ii) The defence for claim of right was also denied.

Judge’s Comments Claim of right as a defence (Crimes Act) In Samoa, the claim of right as a common law defence is available pursuant to section 11 of the Crimes Act 2013 which preserves “All rules and principles of the common law as are consistent with the provisions of this Act and any other applicable enactment and with the customs and usages of the people of Samoa recognized and applied by the Court of Appeal, the Supreme Court or the District Court...” which render any circumstances justification or excuse for any offence unless they have been altered or are inconsistent with any enactment. [9] Section 11 has now include the words “.. customs and usages of the people of Samoa recognized and applied by the Court of Appeal, the Supreme Court or the District Court..” which were not part of section 9 of the Crimes Ordinance 1961. This inclusion is consistent with the definition of ‘law’ under Article 111 of the Constitution. This is important as this case involves customary land. Section 74 of Lands and Titles Act 1981 provides that any decision of the LTC is to be taken to be a

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judgment of the Supreme and District Courts.

Custom and usage ’ is defined under section 2 of Land and Titles Act 1981 to mean “ customs and usages of Samoa accepted as being in force at the relevant time which includes the principles of custom and usage accepted by the Samoan people in general and customs and usages accepted in a particular place or matter”. Customary land is land held in accordance with Samoan custom and usage [10] It is held under a matai title of the village the land is situated. The Samoa Court of Appeal accepted that claim of right is a lawful defence in Samoa. It is assessed subjectively. An honest but mistaken belief will suffice even if this belief is unreasonable.[11] 7. 2016 - Manuseni v ‘Custom’ as provided This is an application to strike out statement of claim and notice of motion for orders of President and for under s 34 prohibition and certiorari. Registrar of the LTC (Jurisdiction of the and Paepae [2016] Court), LTA 1981, HELD: The statement of Claim and Notion of Motion both struck out. WSSC 57 article 103 Judge’s Comments (Establishment of the Customary and Traditional Boundaries Justice Vaai Court), Constitution The Court held when presented with a contention challenging the validity and legality of the 1960. amendment Act held that whether Safata district is capable of being divided into two by custom and ‘custom’ as to the tradition is a question for the Land and Titles Court to entertain. If it can be divided it is for that customary and court to determine the customary boundaries. Whether it is an academic exercise and a waste of traditional court time is also for that court to decide. boundaries of Safata District. 8. 2014 - Malifa v LTC’s application of Pule over paramount titles of a family: Suli Fa’avae and Suli moni. President of the LTC the custom as to the The LTC’s decisions complained resulted to the applicant (a suli moni) sharing the pule with the [2014] WSSC 170 qualifications of respondents who were not true heirs. In dealing with the LTC’s decision complained of as having those with pule over emerged from the wrong application of custom to the point of inventing new customary practices, Justice Nelson titles of a family. the Court that held that this LTC had instead declared what the prevailing practices are. It was the court recognizing the fluidity of custom and its ability to adapt to changing times and circumstances. It is the court accepting that in this area there is no uniformity.

The traditional approach is that the suli faavae or suli moni exercise sole pule over the paramount

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titles of a family. All other suli being part of the taupulega whose role is to consult with the suli moni. Most times this is followed. But sometimes other kind of suli are appointed to hold a paramount title for good reason, commonly as a reward for tautua or because the line of succession of the suli moni becomes disrupted by events. Where this happens the customary practice in that family over the course of generations then becomes that some if not all of these kinds of suli are permitted to have a say equal to that of the suli faavae or sulimonivis-a-vizthe pule over a title. The court did not express a preference as to which should prevail. It only acknowledged that different practices exist but all are customarily acceptable as tailored to meet the needs of particular situations. 9. 2012 – Penaia v ‘Custom’ in This was an application for Judicial Review following the Lands and Titles Court refusal to grant President of LTC customary land the leave to appeal a decision of the Court at First Instance. The grounds for judicial review was that [2012] WSSC 39 pule of which was the a 2009 decision breached the applicant’s right to personal liberty provided in Article 6 (1) of the subject matter of Constitution, (b) the 2009 decision breached the applicant’s right to a fair trial provided in Article Chief Justice Sapolu these proceedings.’ 9 of the Constitution, and (c) the 2009 decision was illegal and irrational at common law.

‘Pule Fa’avae was not HELD: The motion was struck off. accordance with Samoan custom and Judge’s Comments usage.’ Exclusive jurisdiction of the Lands and Titles Court Both the language and provenance of ss 34(2), 70 and 71 point to stringent exclusion of judicial ‘Custom’ as provided review save to the extent permitted by the Constitution. So too does the importance of the role of the for under s 34 Land and Titles Court that is recognised in the significance accorded to by the Constitution to the (Jurisdiction of the subject-matter of its exclusive jurisdiction, namely Matai title and customary land, each held in Court), and 79(1)(f) accordance with Samoan custom and usage and with the law relating to custom and Articles LTA 1981. 100 and 101(2). Moreover “law” is defined as custom and usage which has acquired the force of law in Samoa (Article 111).

Other policy reasons for exclusivity of Lands and Titles Court’s jurisdiction Even without ss 34(2), 70 and 71 there would be powerful reasons for the courts of general 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 d’être of the Land and Titles Court is to provide that competence, bringing to disputes concerning Samoan

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custom and usage the expertise of Judges versed in such matters so they can evaluate 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. Allegations of wrong custom applied (Pule Fa’avae) The Pule Fa’avae in the village of Saanapu that was given in 2004 was wrong in law and also not in accordance to Samoan custom and usage. The Court held 63. The 2004 decision was also not wrong in law. The applicant and his counsel are only saying now that the Pule Faavae claimed by Anapu in the 2004 proceedings is wrong in law because the Pule Faavae of the Toatolu o AliiLeaana, Mati and Mulitalo supported by the applicant in those proceedings was rejected by the Court. But the nature of the Pule Faavae claimed by Anapu is no different from the nature of the Pule Faavae supported by the applicant. I am sure that if the Pule Faavae supported by the applicant had been upheld by the Court, the applicant would not have complained. So what the applicant is now doing suggests abuse of process. 10. 2012 – Tutuila v Custom of The plaintiffs sought damages for the consequences to herself and her family as a result of acts Punitia [2012] WSSC banishment and decisions of the Alii ma Faipule. Tanugamanono. The primary cause of action pleaded was 107 breach of the “right ... to move freely throughout Samoa and to reside in any part thereof” guaranteed by Art 13 (1) (d) of the Constitution. Justice Slicer HELD: Judgment is entered in favour of the Plaintiff as against each of the remaining Defendants.

Judge’s Comments Custom and Law on Banishment In the case of Taamale v Attorney General [1995] the law of banishment is a reasonable restriction imposed in the interests of public order on the right to move freely throughout Samoa and to reside in any part as conferred b article 13(1). The Court however held that the exercise of this jurisdiction is not absolute and subject to the law. Jurisdiction The Court held that jurisdiction is to be exercised judicially by the Land and Titles Court always bearing in mind that the imposition of a banishment order is made in the spirit of what is fair and reasonable and according to law... An individual who is dissatisfied with a decision given at the first

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instance level of the Land and Titles Court also has further avenues for seeking redress. He has a right of appeal to the appellate division of the Land and Titles Court. He may apply in an appropriate case to the Supreme Court under Article 4 of the Constitution to enforce his constitutional rights and freedoms. He may also apply under Article 73(2) of the Constitution to the Supreme Court if a question arises before the Land and Titles Court as to the interpretation or effect of any fundamental rights provision of the Constitution. A combined reading of the decisions of the Supreme Court and Court of Appeal in Alaelua Vaalepa Saleimoa Vaai v Land and Titles Court clearly suggests that in an appropriate case he may also seek judicial review in the Supreme Court of a decision of the Land and Titles Court.” and gave as the conclusion of the Court of Appeal. Village Fono Act 1990 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. Defence of Samoan custom and traditions A defence contemplated by one counsel to oppose charges against his client was that the defendants were justified in their actions by Samoan custom and traditions. Afoa was convicted of murder, the six senior matai pleaded guilty to lesser charges of manslaughter and the other defendants all pleaded guilty to the various offences filed. The defence of Samoan custom and traditions which would have necessitated a court ruling on the relationship of custom and law and the Village Fono Act, did not however eventuate. Misuse of Custom This case involves misuse of custom as a vehicle to enhance the property of the Church and the personal benefit of at least some of the Defendants, without objection by the others. 11. 2011 – Amoa v LTC ‘Custom’ as provided The applicants sought Judicial review of a decision dated 9 December 2005 by the appellate [2011] WSSC 89 for under s 34, LTA division of the Land and Titles Court regarding the pule or authority over the title Amoa in 1981. Samusu, Aleipata. The proceedings before the appellate division of the Land and Titles Court were Chief Justice Sapolu concerned with four appeals from the decision dated 21 November 1994 of the trial division of the Court concerning the issue of the pule or authority over the title Amoa.

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HELD: The motion for judicial review was dismissed.

Judge’s comments Common law grounds: Judicial Review The question for determination in these proceedings is whether the Supreme Court has jurisdiction to review decisions of the Land and Titles Court on the common law grounds of illegality, procedural unfairness, and irrationality even though there has been no breach of a fundamental right provided in Part II of the Constitution. Miss Vili who presented the submissions for the LTC argued that the Supreme Court may only review a decision of the Land and Titles Court on common law grounds where those grounds can be tied in to a breach of a fundamental provision of the Constitution….. On the authority of Re Racal Communications Ltd [1981] AC 374 per Lord Diplock, R v Lord President of the Privy Council, ex parte Page [1993] AC 683 per Lord Griffiths and Lord Browne- Wilkinson, and Bulk Gas Users Group v Attorney-General [1983] NZLR 29, I have come to the conclusion that the privative clause in s.71 of the Land and Titles Act 1981 does exclude the jurisdiction of the Supreme Court to review a decision of the Land and Titles Court which is an 'inferior' Court on common law 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). 12. 2011 – Ainu’u v LTC ‘Custom and usage’ – These proceedings were concerned with a motion on behalf of the Land and Titles Court as [2011] WSSC 36 the applicant LTC’s respondent to strike out a motion by the applicant to review the decision of the Land and Titles failure to consider Court of 18 May 1990 concerning the pule (authority) over the land Leififi in Apia as well as to Chief Justice Sapolu should render its strike out the applicant's accompanying statement of claim. decision illegal. HELD: The Court struck out the plaintiff’s motion for judicial review and attached statement of claim. 13. 2011 – Alii and Custom in customary These proceedings were concerned with a motion on behalf of the Land and Titles Court as Faipule of Lauli’i v land ownership. respondent to strike out a motion by the applicant to review the decision of the Land and Titles Trustees of the Estate Court of 18 May 1990 concerning the pule (authority) over the land Leififi in Apia as well as to

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of Jacob Helg [2011] Issue with standard strike out the applicant's accompanying statement of claim. WSSC 4845 to apply. Civil standing in light of HELD: The Court struck out the plaintiff’s motion for judicial review and attached statement of Justice Slicer statements claim. considered. Judge’s Comments Oral evidence (lack of documentary of title) The Court received oral testimony of the history of the land to supplement the documentary evidence of title. That course is permitted especially since Samoa had no written language or documentation before European contact. It also had regard to the valuable doctorate dissertation of the learned author Dr. Asiata Vaai (The Rule of Law and The Faamatai (1995)) in its understanding of the land's history and its surrounding circumstances. But the Court remained mindful that it was not conducting its own inquiry. It was and remains the responsibility of the Plaintiffs to prove their case on the balance of probabilities. It was and remains the responsibility of the Plaintiffs to provide accurate and credible evidence in support of their claim. In its dealing with evidence based on oral history the Court is required to have regard to the qualifications of the witnesses, consistency with other sources, in accordance with known customs and the like. Mere assertions are insufficient. Differences of custom and tradition The Court must also acknowledge that there may be differences of custom and tradition between groups within the same wider geographical area. Consulting appropriate literature Matters of public history to works of authority. A Court is permitted to refer to matters of public history to works of authority (Read v Bishop of Lincoln [1892] AC 644) where Lord Halsbury in the course of his speech in the Privy Council said at 653:

45 The Plaintiffs, as the Alii and Faipule of Laulii, sought the return of land within their village to customary title. The Defendants in their varying capacities maintain that the land is held by private title recognised by the Constitution and not subject to alienation except by sale inheritance or gift. The Court made orders as follows: that the registered owners are the legal and equitable owners of the land, that the summons and statement of claim including that amended are dismissed with judgment for the defendant with the counterclaim against the fourth defendant dismissed. The villagers of Laulii were also injuncted from entering onto or interfering with any portion of the land without written consent of one of the Defendants with the Village Council of Laulii and/or the Alii and Faipule of Laulii ordered to formally rescind its resolution made on 25 June 1990 within twenty-one (21) days of this matters. The Alii and Faipule of Laulii were also ordered to pay, jointly and severally the costs of each Defendant in the sum to be agreed or assessed by this Court.

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"Where it is important to ascertain ancient facts of a public nature, the law does permit historical facts to be referred to."

But there are limitations.

I am required to apply principles and statements of law as determined by the Court of Appeal. In this case the relevant cases are those of Sia'aga v O.F. Nelson Properties Ltd [2008] WSCA 14; Alii and Faipule of Siumu District v Attorney General of Samoa [2010] WSCA 5 and Samoa Party v Attorney General [2010] WSCA 4. Custom and evidence In dealing with custom, the Courts have recognised that a time must come when having had the question of the existence of a custom before them in other cases they are entitled to say that they will take notice of it and will not require proof in each case. But it is not always easy to say when a custom has been recognised with sufficient frequency to become the subject of judicial notice (Majeau Carrying Co. Pty Ltd v Coastal Rutile Ltd [1973] HCA 22; (1973) 129 CLR 48 at 54 – 60). Questions of custom and history, law Here the questions of custom and history, law and their impact on property and political rights have been considered by Samoan Courts in cases such as Western Samoa Trust Estates Corporation v Leniu Faisaovale [1977] WSSC, unreported 9 August 1977; O.F. Nelson Properties Ltd v Feti [2008] WSSC 19; Sia'aga v O.F. Nelson Properties Ltd [2008] WSCA 15; Samoa Party v Attorney General (supra) and most recently in Alii and Faipule of Siumu District v Attorney General of Samoa (supra). This Court ought to not lightly depart from the principles consistently applied by the Supreme Court and the Court of Appeal. In its dealing with evidence based on oral history the Court is required to have regard to the qualifications of the witnesses, consistency with other sources, in accordance with known customs and the like. Mere assertions are insufficient. The Court must also acknowledge that there may be differences of custom and tradition between groups within the same wider geographical area. 14. 2010 - Public Marriage according to This case was based on varying actions, applications, replies and other forms of interlocutory Trustee v Telesi Samoan custom. proceedings requiring differing headings to the entitlement of the proceedings. [2010] WSSC 161 (1 November 2010) HELD: The primary finding of the date of death resolves the issue of title by survivorship. The

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secondary finding is that it was Eteuati Auimatagi who purchased the property jointly with his Justice Slicer wife Fiti. For the number of actions or commenced applications made in the course of these proceedings, counsels are requested to assist the court in the final disposition of these proceedings. The Public Trustee seeks declarations and injunctive relief.

Judge’s Comments Customary Marriage: Lack of evidence. There is a further contention that even if Fiti and Levao had never married in church or been registered as husband and wife, they had nevertheless married in accordance with Samoan custom (The Samoan Public Trustee v Annie Collins & Ors [1961] WSLR 52). There is no evidence of 'customary marriage' simply cohabitation. The defendant submits further that if Levao survived Fiti and even if they were not married in law his estate would remain entitled to a portion of the estate by virtue of the Administration Act 1975, section 44. He relied upon the decision of the New Zealand case of ReO [1975] 1 NZLR 444. But that case engaged the provisions of New Zealand legislation (Family Protection Act 1955, sections 2(3), 58) providing for the rights of illegitimate children and brought within the Administration Act NZ 1969. There were no equivalent legislative provisions in Samoa, in the relevant period. 15. Lauvai v Land and s 71, LTA on exclusive The sought a judicial review of the lower court decision of 1991 and the appellate court decision Titles Court [2010] jurisdiction of the of 1997, and the earlier decisions of the first defendant in 1962 and 1965 stemming from (20 September) Lands and Titles numerous legal battle between the plaintiff and the second to the fourth defendants over the Court. ownership and occupation of the land called Vailoa. Justice Vaai HELD: Application for judicial review is refused. 16. 2008 - OF Nelson See Court of Appeal Case Properties Ltd v Feti [2008] WSSC 19 (28 April 2008)

Chief Justice Sapolu 17. Vaai v Sivanila [2008] Custom and Law on The proper defendants were added in after leave was granted to amend the defendants. The court WSSC 73 (4 June banishment and exercised powers under rule 32 to do this and also used the same power to strike out the previous

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2008) prohibition orders. defendants. The appellant now seek leave to appeal to the Court of Appeal against the striking out of the defendants. Leave was granted on 7 April 2008 these are the reasons. Justice Nelson HELD: The Statement of Claim sufficiently falls within the description “proceedings under the provisions of article 4 of the Constitution”, accordingly an appeal from a decision on an interlocutory application made in the course of such proceedings lies to the Court of Appeal, but only with leave of the Supreme Court. 18. 2008 - Nofoaiga v Customary land The applicant filed a motion for judicial review, a supporting affidavit and statement of claim on President of the Land which is the subject of 24 January 2008 in this Court. This was following a decision of the appellate division of the Land and Titles Court the dispute is land and Titles Court. These proceedings originated from a dispute over the construction of a new [2008] WSSC 52 (29 held in accordance to church building on land situated in the village of Toamua. The name of the land is Tau Toamua July 2008)46 Samoan customs and and it pertains to the title Ale. It is customary land. As such, the land is held in accordance with usage, article 101, Samoan custom and usage and the law relating to the Samoan custom and usage. Chief Justice Sapolu Constitution 1960. HELD: the motion for judicial review and statement of claim were struck out. Grounds for appeal Judge’s Comments allege that the Exclusive jurisdiction of the Lands and Titles Court decision of the Court Before leaving this judgment, I need to say that I do not intend anything said in this judgment to be of first instance is taken to mean that this Court has jurisdiction to review decisions of the Land and Titles Court wrong in law or not in generally. The issue did not arise and was not argued in these proceedings. The only generally accordance with accepted review jurisdiction of this Court, so far, over decisions of the Land and Titles Court is where custom and usage as a decision of that Court is alleged to be contrary to or in breach of the fundamental rights provisions provided in s.79 (1) of Part II of the Constitution: see Aloimaina Ulisese v Land and Titles Court (1998) (unreported (f), Lands and titles judgment of Young J). Act 1981. 19. Asiata v Asiata Custom and Law on The plaintiffs sought an order to refrain the defendant from imposing a banishment order issues

46Following a decision of the appellate division of the Land and Titles Court delivered on 23 February 2007 in which an appeal by the applicant and his party against a decision of the Court at first instance was dismissed, the applicant filed a motion for judicial review, a supporting affidavit and statement of claim on 24 January 2008 in this Court. These proceedings originated from a dispute over the construction of a new church building on land situated in the village of Toamua. The name of the land is Tau Toamua and it pertains to the title Ale. It is customary land. As such, the land is held in accordance with Samoan custom and usage and the law relating to the Samoan custom and usage.

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[2007] WSSC 4 (2 Banishment. against the plaintiffs on 20 May 2004 and 30 May 2006. The plaintiffs seek a second order to February 2007) refrain the defendants from imposing a prohibition order of 19th and 21st June 2006, barring the second plaintiffs from attending religious services in the neighboring village. Further to refrain Nelson J the defendants from making further banishment orders.

HELD: The plaintiffs have the wrong defendants, there is no serious question to be tried as against the defendants, no interim injunction is to issue. The LTC decision is under appeal. The effect of issuing order sought by the plaintiffs would negate the banishment and prohibition orders of the village council. What concerns me here is what is to be done in the interim. I am not confident that the court should exercise its discretion in favour of the plaintiff given the current tensions in the village. 20. 2004 - Leituala v Custom and Law on This was case was concerning an action the plaintiff brought claiming damages on the ground Mauga [2004] WSSC Banishment that his constitutional rights (article 9 & 13) were breached by the order of banishment. 9 (13 August 2004) Judge’s Comments Justice Vaai Different interpretation of custom 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 a gross violation of the elementary principles of justice which the court cannot support.....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….

21. 2004 - Peniamina v ‘Custom and usage’ The Court in this case dealt with a motion by the first defendant, the Land and Titles Court, to

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Land and Titles was mentioned in this strike out parts of the plaintiff's amended motion for judicial review. This was on the general Court [2004] WSSC case as a qualification ground that they are frivolous, vexatious and an abuse of process. In the course of the argument, 12 (14 September of Samoan Judges and counsel for the first defendant restricted this part of the strike-out motion to paragraph (c) of the 2004)47 member of the Land amended motion for judicial review which seeks a declaration that the first defendant had and Titles Court. breached the plaintiffs right to a fair trial provided under Article 9 of the Constitution. The first Chief Justice Sapolu defendant's motion also seeks to strike out the entire of the plaintiff's amended statement of ‘Custom’ as provided claim for not disclosing a cause of action that is maintainable in law or, alternatively, paragraphs under s 37 (Law to be 7, 8 and 9 thereof which allege bias. applied by the LTC), LTA 1981. HELD: The strike-out motion succeeded and paragraph (c) of the amended motion which allege violation of the right to a fair trial under Article 9(1) of the Constitution and grounds (3), (4), (5) and (6) of the amended motion for review which complain of bias and breach of the constitutional right to a fair trial are all struck out. 22. 2004 - Elisara v ‘Custom’ as in the The court in this case was concerned with the question of adequate compensation in the taking Attorney General customary land which by government of some acres of customary land (Savaii). This was at issue as a result of the [2004] WSSC 29 (25 is the subject of the plaintiff’s claim June 2004) dispute in this case.

47 The Court dealt with a motion by the first defendant, the Land and Titles Court, to strike out parts of the plaintiff's amended motion for judicial review (and the entire or parts of the plaintiffs amended statement of claim. The first defendant's motion seeks to strike out paragraphs (c), (d) and (e) of the plaintiffs amended motion for judicial review on the general ground that they are frivolous, vexatious and an abuse of process. In the course of the argument, counsel for the first defendant restricted this part of the strike-out motion to paragraph (c) of the amended motion for judicial review which seeks a declaration that the first defendant had breached the plaintiffs right to a fair trial provided under Article 9 of the Constitution. The first defendant's motion also seeks to strike out the entire of the plaintiff's amended statement of claim for not disclosing a cause of action that is maintainable in law or, alternatively, paragraphs 7, 8 and 9 thereof which allege bias. For the foregoing reasons, the strike-out motion should succeed. Accordingly, paragraph (c) of the amended motion which allege violation of the right to a fair trial under Article 9(1) of the Constitution and grounds (3), (4), (5) and (6) of the amended motion for review which complain of bias and breach of the constitutional right to a fair trial are all struck out. Paragraphs 7, 8 and 9 of the amended statement of claim allege the same grounds of bias as set out in the amended motion for review. I have already struck out the parts of the amended motion which allege bias for the reasons already given. For the same reasons, paragraphs 7, 8 and 9 of amended statement of claim alleging bias and violation of the constitutional right to a fair trial are also stuck. That leaves only paragraphs 1 to 6 of the amended statement of claim which allege res judicata and lack or want of jurisdiction. As those remaining paragraphs disclose no reasonable cause of action, they are also struck out. In consequence the whole of the amended statement of claim is struck out. But as I have said, that should not be fatal to the plaintiffs motion for review or what remains of it.

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HELD: The plaintiff’s claim failed. The agreement was held as a binding agreement and pursuant Justice Vaai ‘Custom’ where to sections 26(1) and (2) of the Taking of Lands Act 1964, it binds the Chiefs and Orators of traditionally, the Salelologa and any other person claiming an interest in the land under Samoan Custom and usage. tu’ua is the spokesperson for the Judge’s Comments village at a meeting Custom as to the role of the Tuua with government. Traditionally the tu’ua was the spokesperson for the village of Salelologa at the meeting with government when the $4 million was offered. In law he was the agent for the village and when the agent accepted the offer of $4 million he did so in the presence of his principals who did not intervene up to the time the Agreement was signed. And when the two instalment payments of $500,000 were subsequently made pursuant to the Agreement the village of Salelologa (including the foaiala of Satulafai who initiated these proceedings) did not reject the payments. It is in these circumstances I have difficulty in accepting the submission by counsel for the plaintiffs that the tu’ua had no authority to accept the $4 million offer and the execution of the Agreement was without village authorisation and the Agreement should therefore be set aside as it would be unconscionable to treat it as a binding agreement. It is very apparent that the disagreement concerning the Agreement is not with the government but amongst the chiefs and orators of Salelologa. Indeed for the doctrine of unconscionability to be successfully argued the plaintiff must produce evidence to show defective negotiations; that is something happened during the negotiating period which makes it unconscionable for the defendant to insist on the Agreement. Regrettably there is not the slightest suggestion in the evidence that the representatives of the defendant took advantage of the plaintiffs’ particular vulnerability or lack of understanding such that it would be unconscionable to take the benefit of the contract. The plaintiffs were certainly not under a serious disadvantage during the negotiations. 23. Lafaialii v Attorney Custom of The plaintiffs sought Judicial Review under Article 4 seeking an order for certiorari to quash the General Banishment. decision of the LTC… and finally that the Alii and Faipule contravened the freedom of religion in [2003] WSSC 8 (24 Article 11 of the Constitution, when the Alii and Faipule orders the dismantling of bible class April) building and banishment of the plaintiffs.

Chief Justice Sapolu HELD: Having concluded that its established law that the SC had jurisdiction to review LTC decisions affecting fundamental rights of which in this case, was the breach freedom of religion,

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the Court quashed the banishment decisions of the LTC as unconstitutional and a breach of freedom of religion.

The Court also made the declaratory orders as follows: (i) as per article 103 of the Constitution & Village Fono Act 1990, the LTC has jurisdiction to renders render decisions on religious worship provided they relate to Samoan names and titles or claims and disputes between Samoans relating to customary land and the right of succession to property held according to customs and usages o the Samoan race; (ii) by virtue of articles 11, 12 and 13, LTC’s jurisdiction doesn’t extend to limit number of churches in Saipipi or prohibit the plaintiffs from conducting bible classes or church services: (iii) by virtue of the aforementioned articles, the Alii ma Faipule have no power or authority to limit the number of churches in the village of Saipipi or to prohibit the plaintiffs from conducting bible classes or church services at Saipipi (whether on freehold or customary land) or otherwise restricting freedom of religious worship or instruction or activity upon customary land under its authority, etc. 24. 2003 - Board of ‘Custom’ as in This case concerned the plaintiffs which claimed that they were the freehold owners of the land Trustees of the customary land of and were registered as such. The defendants’ defence was that the land was customary land and Congregational which the defendants the traditional land associated with the title of their family. They also claimed in the alternative Church of Samoa v in this case the land in that if the land was found to be freehold then they had acquired rights by adverse possession. Pouvi [2003] WSSC 4 dispute was rather The plaintiff’s sought an order of eviction, the defendants in their counter claim conferment of (14 February 2003)48 than a freehold land. title and damages for harm caused as a result of the plaintiffs obtaining an interlocutory injunction against them. The court found that the Congregational Church were the registered Chief Justice Sapolu holders of the freehold title of the land. However the court also held that the defendants had been in adverse possession of part of the land for a period exceeding twelve years, which is the limitation period for land claims under the Limitation Act 1975 in Samoa.

48This case concerned the plaintiffs which claimed that they were the freehold owners of the land and were registered as such. The defendants’ defence was that the land was customary land and the traditional land associated with the title of their family. They also claimed in the alternative that if the land was found to be freehold then they had acquired rights by adverse possession. The plaintiff’s sought an order of eviction, the defendants in their counter claim conferment of title and damages for harm caused as a result of the plaintiffs obtaining an interlocutory injunction against them. The court found that the Congregational Church were the registered holders of the freehold title of the land. However the court also held that the defendants had been in adverse possession of part of the land for a period exceeding twelve years, which is the limitation period for land claims under the Limitation Act 1975 in Samoa. The court granted the defendants customary title to that part of the land which they had been occupying.

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HELD: The court granted the defendants customary title to that part of the land which they had been occupying.

Judge’s Comments Land held according to custom Under Article 123 of the Constitution it is provided that land which was formerly European land under the SCO 1920 is now freehold land; land which was formerly Native land under the SCO 1920 and which was later called Samoan land is now customary land; and land which was formerly Crown land is now public land. Article 101 of the Constitution defines each of these three new categories of land. Thus it was submitted for the plaintiff that the land in dispute which has been registered under the name of the London Missionary Society and classified as European land is now freehold land by virtue of Article 123 of the Constitution. …. In support of their claim that the land Paepaelauniu is customary land which belongs to the title Iaulualo of their family in Faala, Palauli, and is the maota (traditional residential site) of the title Iaulualo, the defendants called Iaulualo Tusigaigoa, the current holder of the title Iaulualo of their family, to give evidence on their behalf. The principal documentary evidence that was relied upon in support of the defendants claim is a copy of what was shown to be a decision of the Land and Titles Court dated 20 August 1917. 25. 2000 - Sefo v ‘Custom and Law on This plaintiff sought declaratory orders concerning the interpretation of constitutional issues Attorney-General Banishment’ arising as a result of the decision of the Alii & Faipule of Saipipi in Savaii to limit the number of [2000] WSSC 18 (12 churches in their village and to prohibit the plaintiffs from conducting bible classes or church July 2000) services at Saipipi and, therefore, not to permit religious worship, instruction and/or belief of a certain kind, and as a result of subsequent orders of the Lands and Titles Court purporting to Wilson J uphold the position of the Alii & Faipule.

HELD: That, by virtue of Article 103 of the Constitution and the provisions of the Land and Titles Act 1981 and the Village Fono Act 1990, jurisdiction (limited by Article 11) is conferred on the Land and Titles Court to render decisions on matters relating to religious worship, instruction and/or belief provided that such decisions "relate to Samoan names and titles" or "claims and

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disputes between Samoans relating to customary land and the right of succession to property held in accordance with the customs and usages of the Samoan race" and, in the case of appeals under the Village Fono Act, provided that such decisions relate to "the maintenance of hygiene in the village" or "the development and use of village land for the economic betterment of the village" and powers incidental thereto, BUT provided that Article 11 of the Constitution is not infringed. (ii) That, by virtue of Articles 11, 12 and 13 of the Constitution, such jurisdiction does not extend to limiting the number of churches in the village of Saipipi or prohibiting the plaintiffs from conducting bible classes or church services at Saipipi or otherwise restricting the freedom of religious worship or instruction or activity upon customary land in the village of Saipipi. (iii) That, by virtue of Articles 11, 12 and 13 of the Constitution, the Alii & Faipule of the village of Saipipi have no power or authority to limit the number of churches in the village of Saipipi or to prohibit the plaintiffs from conducting bible classes or church services at Saipipi (whether on freehold or customary land) or otherwise restricting freedom of religious worship or instruction or activity upon customary land under its authority. (iv) That, by virtue of Articles 11, 12 and 13 of the Constitution, the Alii & Faipule of the village of Saipipi have no jurisdiction or authority to prevent or restrict a particular religion or religious instruction within the village of Saipipi. (v) That, by virtue of Articles 11, 12 and 13 of the Constitution, the Alii & Faipule of Saipipi have no jurisdiction to prevent or restrict religious instruction and/or worship and/or activity being conducted upon freehold land within the village of Saipipi.

Judge’s Comments: Village Fono and the Constitution In so far as the dispute between the parties may be seen as a power struggle between the Alii & Faipule seeking to apply the law within the village setting in accordance with custom and those members of a relatively new Christian church who seek to rely upon the provisions of the Constitution itself, it must be emphasised that the Constitution is the supreme law of Samoa [Article 2(1)], and any existing law which is inconsistent with the Constitution is, to the extent of the inconsistency, void [Article 2(2)]. The activities and decisions of the Alii & Faipule of a village must always be undertaken and made subject to (and in the light of) the Constitution. Even if it is feared that some unrest or disharmony may result, consent to the establishment of a new church cannot be withheld or insisted upon if, to do so, infringes a fundamental right guaranteed under the

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Constitution…..

Function of the Court: Principle of Interpretation "If the relevant part of the Constitution is clearly expressed, the Court is bound to give effect to those clear words. The consequences flowing from giving effect to the provision are not the concern of the Court and do not influence the Court in making its decision. If the decision is thought by some to be inconsistent with culture, that factor is not taken into account except so far as custom has been preserved by the Constitution.... The Constitution speaks; it is obeyed." 26. 2000 - Vaosa v ‘Custom’ as in The plaintiffs sought a declaratory judgment that the disputed land is not government land and Attorney-General customary land which is part and parcel of the official seat of the title Toailoa of the village of Laulii, and seek an order [2000] WSSC 23 (4 the plaintiffs claimed that the lease be annulled, and further seek an order directing the first defendant to remove the August 2000) the land in dispute registration of the disputed land from the Land Register, and other ancillary orders. was rather than Wilson J government land. HELD: The Court held that the land in dispute was customary land. 27. 1999 - Malifa v ‘Custom’ as part of the Tofilau Eti instructed his solicitor to bring a private prosecution against the publisher of the Sapolu [1999] WSSC definition of ‘law’ Samoa Observer, Savea Sano Malifa , and its Samoan editor, Fuimaono Fereti Tupua, charging 47 (30 March 1999) under article 111, them with the crime of defamatory libel contrary to s 84 Crimes Ordinance 1961. Constitution 1960. Moran J HELD: The Court held that: (i) it was not satisfied that an offence of criminal libel as it exists in Samoa, a creature of the common law with statutory overlay, infringes the applicants' constitutional right to freedom of speech and expression. That infringement, however, is justified as a reasonable restriction on the right and is not therefore inconsistent with the Constitution. (ii) The Court further held that the offence of criminal libel as it exists in Samoa does not infringe any of the applicants' other constitutional rights. The order staying the hearing of the criminal libel charge against both applicants is vacated. The matter may proceed to trial. 28. 1992 - Alaelua v ‘Custom’ as provided No discussion of custom. Land and Titles for under LTA 1981 Court [1992] and Constitution WSLawRp 3; [1980- 1960. 1993] WSLR 507 (16 July 1992)

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Lussick, ACJ 29. 1998 - Alesana v ‘Custom’ as part of the This is an action brought by the Prime Minister of Samoa, Tofilau Eti Alesana, against Samoa Samoa Observer definition of ‘law’ Observer Company Limited and Savea Sano Malifa claiming $400,000.00 general damages for Company Ltd [1998] under article 111, defamation in an editorial published in the Sunday Samoan on 8 December 1996. According to WSSC 1; CP 042 1997 Constitution 1960. the evidence of the second defendant, he is the managing director of the first defendant which is (6 July 1998) the printer and distributor of both the Samoa Observer and Sunday Samoan newspapers and he as the Editor-in-Chief is the publisher of both newspapers in terms of the Newspapers and Sir Gordon Bisson Printers Act 1992/93.

HELD: The Court held it is clear that the words in question relate to the plaintiff that there was no doubt that in the natural and ordinary meaning of the words in question would be likely to convey to the ordinary person that the Prime Minister had benefited from public funds in a way which would lower him in the estimation of right-thinking members of society generally.

Applying that extended meaning to the alternative defence of qualified privilege, the publication of the defendant's editorial of 8 December 1996 would come within the protection of qualified privilege providing information concerning the demotion of a Cabinet Minister and, if truthful, an admission by the Prime Minister that a considerable sum had been given by the government towards the construction of his hotel. As the defamatory paragraphs of the editorial were alleged to be a report of proceedings of the Legislative Assembly, s.18(1) of the Defamation Act 1992/1993 and Part I of the Schedule to the Act apply so that the plaintiff must prove that the qualified privilege was defeated by malice. 30. 1996 - Ah Chong v - N/A (no reference to This case was concerned with an application by the defendants to strike out causes of action Legislative Assembly custom) against them regarding the plaintiff’s audit report tabled in the Legislative Assembly. of Western Samoa N/A - The only reference to ‘custom’ in this case derived from one of the authorities the Court [1996] WSSC 3; CP discussed which supported that whatever Parliamentarians do within the walls of Parliament 196-95 (23 January will be dealt with and only by Parliament itself. 1996). As Blackstone said in his Commentaries on the Laws of England, 17th ed. (1830), vol. 1, p.165: Chief Justice Sapolu 'the whole of the law and custom of Parliament has its original from this one maxim, that whatever matter arises concerning either House of Parliament, ought to be exercised, discussed, and adjudged

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in that House to which it relates, and not elsewhere'.

When that case was before the New Zealand Court of Appeal as Television New Zealand Ltd v Prebble[1993] 23 NZLR 513 Richardson J stated at p.526: "the courts must always be sensitive to the rights and privileges of Parliament and the constitutional importance of Parliament's retaining control over its own proceedings. The rule which has emerged is that it is for the Courts to determine whether a particular privilege exists and for the House to be the judge of the occasion and of the manner of its exercise...... " 31. 1995 - Pita v Matai System and The applicants, who are all Matais, sought the following declarations:-"(1) Section 5 of the Attorney General Suffrage Electoral Amendment Act 1990 is void pursuant to Article 2 of the Constitution of the [1995] WSSC 1; Misc Independent State of Western Samoa; and (2) The Election of forty-five (45) Members of 14033 (22 August Parliament from Territorial Constituencies following the General Elections of 5th of April. 1991 1995)49 is void". HELD: The Court held that it is bound by the conclusion of the Court of Appeal that, Matai suffrage Casey J is not entrenched in the Constitution. The court dismissed the motion for declaratory orders.

Judge’s Comments The applicants claim that entrenchment' of Matai suffrage is implicit in Article 44(1) when read in conjunction with the preamble and in the light of existing law and Samoan custom at the time the Constitution was adopted. They say that the former section 16 of the 1963 Electoral Act recognised this and that any amendment to universal suffrage could only be effected by a change in the Constitution. Under Article 109 Parliament can do this only by a two-thirds majority after a 90-day delay between the second and third reading of the bill.

Mr. Vaai and Mr. Malifa advanced attractively-presented submissions testifying the extent and depth of their research in support of the applicants' claims. At the outset they were confronted with

49The applicants, who are all Matais, seek the following declarations:-"(1) Section 5 of the Electoral Amendment Act 1990 is void pursuant to Article 2 of the Constitution of the Independent State of Western Samoa; and(2) The Election of forty-five (45) Members of Parliament from Territorial Constituencies following the General Elections of 5th of April. 1991 is void". The Court held that it is bound by the conclusion of the Court of Appeal that, Matai suffrage is not entrenched in the Constitution. The court dismissed the motion for declaratory orders.

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the 1982 decision of the Court of Appeal in Attorney-General v Saipaia (Olomalu) (1980-93) WSLR 41, dealing with the effect of the anti-discrimination provisions of Articles 15(1) and. (2) on the former section 16 of the 1963 Electoral Act giving exclusive voting rights to Matais. The Court (Cooke P, Keith and Mills JJ) explored at length the relevant constitutional provisions and the matters leading to their adoption, the situation and status of Matais and the electoral provisions and their history. It concluded (contrary to the decision of the Supreme Court) that Article 15(2) did not govern parliamentary electoral qualifications, holding them to be a special subject outside the provisions of Article 15 (p.60). Accordingly it held that sections 16 (dealing with Matai electors) .and 19 (Individual electors) were validly enacted under the Constitution, having found that Parliament possessed the power under Article 44:(3) to legislate about the qualifications for electors. …. In seeking to persuade me that they were mistaken, applicants' counsel commenced by citing the well-known remarks of Lord Wilberforce in Minister of Home Affairs v Fisher [1980] AC 319, to the effect that a constitutional instrument calls for principles of interpretation of its own, and that respect must be paid to its language and to the traditions and usages which have given meaning to that language. Although primary attention must be given to the words used, the Court must be on its guard against interpreting them in a mechanical or pedantic way. The Court of Appeal. referred to this passage and its survey of Samoan custom and tradition demonstrates that it had the approach advocated by Lord Wilberforce very much in mind.

The difficulty facing Mr. Vaai and Mr. Malifa was the clear language of Article 44 and the absence of any reference in it - or indeed anywhere else in the Constitution - to the entrenchment of Matai suffrage or of their exclusive right to be Members of Parliament. In his extensively researched submissions Mr. Vaai argued that this was necessarily implicit in that Article, which dealt with matters in respect of which there was a long-established and universally recognised electoral practice reflecting the customary place of Matais in Samoan society. Because of this (if I may summarise his submission in this way) it "went without saying" in the Constitution that only Matais were to be constituency members and the electors for them. Mr. Malifa advanced the same point, focusing more on language which he said could be given a meaning consistent with this view. 32. 1980 - Tuivaiti v Custom of The defendants banished the plaintiff and his family from the village for failure to attend Faamalaga [1980] Banishment. church.

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(17 December 1980) HELD: The Supreme Court considered that freedom of religion encompassed the right not to SC, R.J.B. ST. JOHN, practice any religion and held that banishment for failure to attend church was in breach of C.J. Article 11. 33. 1987 - Western ‘Custom’ as in the This was an action in trespass seeking injunction for occupation of land. Samoa Trust Estates customary land in HELD: The Court granted an injunction granted to compel the defendants to vacate the said land Corporation v dispute. and remove their buildings and to refrain from occupying or entering on the said land. Tuionoula [1987] Judge’s Comments WSLawRp 1; [1980- Village as reallocated in Faleapuna in exchange for their original land held and used the same 1993] WSLR 181 (19 according to Samoan custom January 1987)50 The Court held that I am satisfied that the New Zealand Administration and the Alii and Faipule of Satuimalufilufi entered into and all signed the Agreement dated the 13th May 1942 in the form of Pain J. Exhibit 67. In terms of that Agreement the people of Satuimalufilufi moved on to and occupied the land at Faleapuna given in exchange for their customary land. Compensation was paid in terms of that Agreement. The village of Satuimalufilufi was re-established at Faleapuna and the land has been occupied and used in accordance with Samoan custom although the land remains registered as Government land. The land surrendered by the village was taken by the Government for defence purposes and used as an airport and United States Marine Base from 1942 until after the end of the war in 1945……

The Privy Council decision in Sakariyawo Oshodi v Brimah Baloqun 119361 2 All ER 1632, referred to by counsel for the Plaintiff, is a good illustration of how the alienation of customary land can only be effective and binding if it is done in accordance with native law and custom. In the present case the Alii and Faipule entered into the agreement and this effectively bound the whole village of Satuimalufilufi…… The Government gave Satuimalufilufi the land at Falepuna which has since been held by the village in accordance with the usages and customs of the Samoan people (para. 2). The Satuimalufilufi signatories to the agreement indemnified the Government against claims by any other person to an interest in the land surrendered (para. 3). . ~ Satuimalufilufi have a continuing obligation to surrender any 1and.at Faleapuna required for roading purposes (para. 4). The air base was called

50 This was an action in trespass seeking injunction for occupation of land. Injunction granted to compel the defendants to vacate the said land and remove their buildings and to refrain from occupying or entering on the said land.

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Faleolo Air base (para. 5)….. Vesting in the Crown as trustee the land held by Samoans by Native title as per section 278, Samoa Act 1921 The relevant portion of Section 278 provides: "All land in Samoa which at the commencement of this Act is held by Samoans by Native title is vested in the Crown as the trustee of the beneficial owners thereof, and shall be held by the Crown subject to the Native title and under the customs and usages of the Samoan race and all such land is hereby declared to be Native land accordingly....."

Land exchange under government agreement held according with usages and customs of the Samoan people. The agreement entered into in 1942 between the New Zealand Administration and the Village of Satuimalufilufi remains binding on the present Government and, in terms of that agreement, the land has been held by the village "in accordance with the usages and customs of the Samoan people". However it is not customary land within the Land and Titles 1980 and the people of the village are denied access to the Land and Titles Court under that Act for resolution of land disputes. This is an omission that ought to be remedied by the Government as soon as possible so that the land will be customary land in all respects. This may require a special Act of Parliament or a consent application under Section 9 of the Lands and Titles Act 1980 may suffice. Some other way may be more appropriate but the Government should immediately take the initiative in this matter. 34. 1983 - Leulupoao v Land is held Land is customary land: Lack of Jurisdiction of the Supreme Court to hear this matter. Sa [1983] according to customs The Court found that the land in question was "customary land" and as a consequence, it has no SamoaLawRp 5; and usage, article 101 jurisdiction, such jurisdiction lying exclusively with the Land and Titles Court. [1980-1993] WSLR of the Constitution, Limitation Act 1976 inapplicable to customary land 86 (13 April 1983) section 8(b), Land The crucial question is whether the land is freehold land or customary land. If it is customary land and Titles Act 1981. then the Limitation Act does not apply (s.4) and the defence case must fail. Callander CJ Land grant as declared is land held to be in accordance with customs and usages That the grant clearly declares, in accordance with the said s.17 that the land was to be held in accordance with the customs and usages of the Samoan people. 35. 1978 - Ao v Leota Adoption by Samoan This was an action for an injunction to restrain the defendant from trespassing on certain land. [1978] WSLawRp 3; custom HELD: The Court held that the plaintiff, being the registered owner of certain freehold land

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[1970-1979] WSLR occupied by the defendant as a member of his extended family was held entitled to an injunction 202 (18 August 1978) restraining defendant from trespassing on the land. The defendant had not established to the court’s satisfaction that he made any contribution Nicholson CJ towards the purchase of the remaining parcels and in particular parcel 166/78. The Court also held that it was satisfied that the defendant has been on the land along with the rest of the family as a mere licensee of the plaintiff, and that his license has been terminated by the plaintiff. An injunction will therefore issue to restrain the defendant from trespassing upon the land. The defendant will pay costs of both the plaintiff .and the third party in the sum of $100.00 each. Judge’s comments Customary adoption: Lack of recognition. The defendant was the adopted son of the late Pauga. He was adopted by Samoan custom and no formal Court adoption order was ever made. The defendant claims that the land belongs to the extended family, that the plaintiff obtained title to the land by fraud or by mistake, and that the plaintiff is holding the land as trustee for the extended family. Samoan freehold land and customary land I reach this conclusion having regard to the provisions of section 15 of the Land and Titles Protection Ordinance 1934 as amended, which reads as follows:- All Samoan freehold land and every Samoan interest in freehold land shall be deemed to be the individual property of the owner thereof unless it shall be declared in manner hereinafter appearing to be property held in accordance with the usages and customs of the Samoan people. . There is obviously a lot of confusion in the minds of the parties as to whether the plaintiff is holding this property as Samoan customary land, but in view of the terms of section 15 of the Land and Titles Protection Ordinance 1934 as amended, he must be deemed to be holding it as an individual only. Thus all the occupants of the land are licensees at will, i.e., their right to occupy the land is determinable at the will of the plaintiff. The defendant appears to have acknowledged this by his consenting to judgment in the Magistrate's Court proceedings, which, contrary to the defendant's allegations, appear to have been valid proceedings.

DISTRICT COURT

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1. 2017 - Police v s.11 Crimes Act 2013: - The accused, Eti Sapolu (“Eti”) faces one information alleging that on 8 July 2016, he Sapolu [2017] WSDC All rules and principles intentionally damaged properties belonging to Tasalaotele Sapolu of Faatoia (“Tasalaotele”) 10 (31 July 2017) of the common law as namely 25 tulsi plants valued at $50.00 each, a total value of ST$1250; five (5) laupele plants are consistent with the each valued at ST$10.00; a total value of $50 and grand total of $1300. Judge Alalatoa provisions of this Act - The charge is brought pursuant to s.184(2)(a) Crimes Act 2013 (“CA”). Eti through counsel Rosella Viane and any other entered a not guilty plea to the charge at the second mention on 3/04/17 and the matter Papalii applicable enactment proceeded to trial on 19/05/17. and with the customs - I find that the prosecution has not proven all elements of the offence beyond a reasonable and usages of the doubt. people of Samoa - Accordingly, I acquit Eti of the offence and dismiss the charge against him. recognized and 1. The defence of claim of right has its origin in the English common law. By the early 1900s it was applied by the Court of firmly established in law by “a long and unbroken chain of authority” that claim of right exists Appeal, the Supreme whenever a person honestly believes that they have a lawful claim to property, however unfounded Court and District that claim may be. Court...” 2. In Samoa, the claim of right as a common law defence is available pursuant to section 11 of the Crimes Act 2013 which preserves: “All rules and principles of the common law as are consistent with the provisions of this Act and any other applicable enactment and with the customs and usages of the people of Samoa recognized and applied by the Court of Appeal, the Supreme Court or the District Court...” which render any circumstances justification or excuse for any offence unless they have been altered or are inconsistent with any enactment. 3. The Samoa Court of Appeal accepted that claim of right is a lawful defence in Samoa. It is assessed subjectively. An honest but mistaken belief will suffice even if this belief is unreasonable 2. 2017 - Police v Fasio s.11 Crimes Act 2013: Justice Tuatagaloa in Kini explained the essence of the defence of a claim of right. I have recited [2017] WSDC 9 (28 All rules and principles the following passages from her Honour’s judgment as in my view these equally apply here: July 2017) of the common law as “The defense of claim of right has its origin in the English common law. By the early 1900s it was are consistent with the firmly established in law by “a long and unbroken chain of authority” that claim of right exists Judge Alalatoa provisions of this Act whenever a person honestly believes that they have a lawful claim to property, however Rosella Viane and any other unfounded that claim may be. New Zealand has codified claim of right and is defined in the Papalii applicable enactment interpretation section of, their Crimes Act 1961. and with the customs Therefore, the common law principles of the defence of claim of right have been superseded by

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and usages of the legislation in New Zealand. As such, claim of right in New Zealand can be used as a defence only people of Samoa where it is an element of an offence. For example, under section 269(2)(a) a person commits recognized and intentional damage when he or she - “ intentionally or recklessly, and without claim of right , applied by the Court of destroys or damages any property in which that person has no interest” (my emphasis). Appeal, the Supreme In Samoa, the claim of right as a common law defence is available pursuant to section 11 of the Court and District Crimes Act 2013 which preserves “All rules and principles of the common law as are consistent Court...” with the provisions of this Act and any other applicable enactment and with the customs and usages of the people of Samoa recognized and applied by the Court of Appeal, the Supreme Court or the District Court...” which render any circumstances justification or excuse for any offence unless they have been altered or are inconsistent with any enactment.

11. General rule as to justifications- All rules and principles of the common law as are consistent with the provisions of this Act and any other applicable enactment and with the customs and usages of the people of Samoa recognised and applied by the Court of Appeal, the Supreme Court or the District Court which provides a justification or excuse for any act or omission, or a defence to any crime under this Act or any other enactment shall be applicable to any charge, except so far as they are altered by or are inconsistent with this Act or any other enactment. Section 11 has now include the words “..customs and usages of the people of Samoa recognized and applied by the Court of Appeal, the Supreme Court or the District Court..” which were not part of section 9 of the Crimes Ordinance 1961. This inclusion is consistent with the definition of ‘law’ under Article 111 of the Constitution. This is important as this case involves customary land. Section 74 of Lands and Titles Act 1981 provides that any decision of the LTC is to be taken to be a judgment of the Supreme and District Courts. ‘Custom and usage’ is defined under section 2 of Land and Titles Act 1981 to mean “customs and usages of Samoa accepted as being in force at the relevant time which includes the principles of custom and usage accepted by the Samoan people in general and customs and usages accepted in a particular place or matter”. Customary land is land held in accordance with Samoan custom and usage. It is held under a matai title of the village the land is situated. The Samoa Court of Appeal accepted that claim of right is a lawful defence in Samoa. It is assessed subjectively. An honest but mistaken belief will suffice even if this belief is unreasonable.”

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Having considered the evidence, the surrounding circumstances of the offending, law, my understanding of our customary land tenure system under the faamatai system and our Samoan customs and usages, I am of the view the claim of right must fail. 3. 2016 - Office of the Electoral Act 1963: - D charged under s5(4B_ Electoral Act 1963 – charge alleges that he willfully made a false Electoral 3A) In this section: declaration in Form 1A that he had satisfied s5(3A) Electoral Act 1963 Commissioner v “monotaga” means Falsity of the declaration the compulsory Tuitui [2016] WSDC - Decided by the Supreme Court – D did not carry out any monotaga to his village of Saleapaga service, assistance or 43 (30 August 2016) contribution (such as, pursuant to the customs of the village (at least for the 3 years prior to lodging his nomination contribution in form paper with EC DCJ Fepuleai A. of cash, kind or - The 3 yrs referred to in the form, refers to his service ‘tautua’ whilst residing in Samoa Roma goods) rendered for Knowledge of the falsity of the declaration customary, - Defence counted his tautua through his contributions for his family (the form makes no traditional or reference to monotaga only tautua religious activities, - Defence had in mind ‘tautua’ in its general and wider meaning, that of being service events, function or similar purposes Form does not incorporate provision of s5(3A) Electoral Act pursuant to the customs of a Court found that the prosecution had not proven the charge against the defendant to the required particular village; standard. It is accordingly dismissed “service” means any service, assistance or contribution… “village service” means: (a) monotaga rendered by a candidate…

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7. 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) Ah Chong v Legislative Assembly of Western Samoa [1996] WSSC 3; CP 196-95 2) Ainu'u v Land and Titles Court [2011] WSSC 36 3) Akeimo v Appellate Division of the Land and Titles Court [2017] WSSC 36 4) Alaelua v Land and Titles Court [1992] SamoaLawRp 6; [1980-1993] WSLR 531 5) Alaelua v Land and Titles Court [1992] WSLawRp 3; [1980-1993] WSLR 507 6) Alesana v Samoa Observer Company Ltd [1998] WSSC 1; CP 042 1997 7) Alii and Faipule of Laulii v Trustees of the Estate of Jacob Helg [2011] WSSC 48 8) Aloimaina Ulisese & Others v Land & Titles Court (Unreported 4 November1998) Justice Young 9) Amoa v Land and Titles Court [2011] WSSC 77 10) Amoa v Land and Titles Court [2011] WSSC 89 11) 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 Nov 2000) Sapolu CJ 12) Ao v Leota [1978] WSLawRp 3; [1970-1979] WSLR 202 13) Asiata v Asiata [2007] WSSC 4 14) Attorney General v Malifa [2018] WSCA 1 15) Board of Trustees of the Congregational Church of Samoa v Pouvi [2003] WSSC 4 16) Commonwealth of Australia v Stevenson [1993] WSSC 30; CP 246-93 17) Election Petition re Gagaifomauga No. 1 Territorial Constituency No. 30 [1973] WSLawRp3; [1970- 1979] WSLR 84 18) Election Petitions re Palauli North (Falefa) Territorial Constituency No. 30 [1973] WSLawRp 4; [1970-1979] WSLR 68 19) Elisara v Attorney General [2004] WSCA 4

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20) Elisara v Attorney General [2004] WSSC 29 21) Esekia v Appellate Division of the Land and Titles Court [2016] WSSC 141 22) Esekia v Land and Titles Court [2017] WSSC 145 23) Esera v Samoa Realty & Investments Ltd [2007] WSSC 26 24) Hunt v Attorney General [1994] WSSC 40 25) In re the Constitution, Taamale v Attorney-General [1995] WSCA 1; 02 1995 26) Keil v Land Board [2000] WSSC 47 27) Lafaialii v Attorney General [2003] WSSC 8 28) Land and Titles Court v Lautogia [2018] WSCA 4 29) Lavea v Kerslake [2015] WSCA 3 30) Lealaisalanoa v Corporation of the Presiding Bishop of Church of Jesus Christ [1988] SamoaLawRp 6; [1980-1993] WSLR 321 31) Leituala v Mauga [2004] WSSC 9 32) Leulupoao v Sa [1983] SamoaLawRp 5; [1980-1993] WSLR 86 33) Malifa v Attorney General [2017] WSCA 7 34) Malifa v Attorney General [2017] WSSC 16 35) Malifa v President of Land and Titles Court [2014] WSCA 11 36) Malifa v President of the Lands and titles Court [2014] WSSC 170 37) Malifa v Sapolu [1999] WSSC 47 38) Mama v Faamasunu [1997] WSSC 24; CP 324-95 39) Mapuilesua v Land and Titles Court [2011] WSSC 131 40) Mapuilesua v Land and Titles Court [2012] WSCA 7 41) Moala v Land and Titles Court [2016] WSSC 70 42) Nofoaiga v President of the Land and Titles Court [2008] WSSC 52 43) OF Nelson Properties Ltd v Feti [2008] WSSC 19 44) Okesene v Rossi [2010] WSSC 92 45) Penaia II v Land and Titles Court [2012] WSCA 6 46) Penaia v President of Land and Titles Court [2012] WSSC 39 47) Peniamina v Land and Titles Court [2004] WSSC 12 48) Petition of Seumanutafa Moepogai, Re [1969] WSLawRp3; [1960-1969] WSLR 228 49) Pita v Attorney General [1995] WSSC 1; Misc 14033 50) Police v Fasio [2017] WSDC 9 51) Police v Faulkner [2007] WSSC 80 52) Police v Fuiava [2018] WSDC 5 53) Police v Kini [2016] WSSC 16 54) Police v Peteru [2017] WSDC 13 55) Police v Sapolu [2017] WSDC 10 56) Police v Wilson [2017] WSDC 27 57) Public Trustee v Telesi [2010] WSSC 161 58) Punitia v Tutuila [2014] WSCA 1 59) Rimoni v President of the Land and Titles Court [2011] WSSC 88 60) Saeni v Fa’alafua (2019) WSSC 61) Saeni v Fa'alafua [2019] WSCA 3

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62) Sagato v Land and Titles Court [2011] WSSC 79 63) Samoan Public Trustee v Collins [1961] SamoaLawRp 2; [1960-1969] WSLR 52 64) Sefo v Lands and Titles Court [2000] WSSC 47 65) Silipa v President of the Lands and Titles court [2017] WSSC 32 66) Suemalo & Malaga v Attorney General & Ors [2003] 67) Tanielu v Appellate Division of the Land and Titles Court [2016] WSSC 113 68) Tanielu v Attorney General [2017] WSCA 3 69) Toailoa v Land and Titles Court [2004] WSSC 33 70) Toailoa v Sapolu [2004] WSSC 33 71) To'ailoa v Sapolu [2006] WSCA 1 72) Toomalatai Lauvai v Land and Titles Court & Ors [2010] WSSC 185 73) Tuigamala v Appellate Division of the Land and Titles Court and Vaosaoalii [2016] WSSC 90 74) Tuivaiti v Faamalaga [1980] WSSC 2 (17 December 1980) 75) Tutuila v Punitia [2012] WSSC 107 76) Vaosa v Attorney-General [2000] WSSC 23 77) Vitale v Alii ma Faipule Gagaifolevao Lefaga [2017] WSSC 12 78) Western Samoa Trust Estates Corporation v Tuionoula [1987] WSLawRp 1; [1980-1993] WSLR 181

Acts of Parliament of Samoa 1) Attorney General’s Office Act 2013 (Samoa) 2) Broadcasting Act 2010 (Samoa) 3) Constitution of the Independent State of Samoa 1960 (Samoa) 4) Electoral Act 2019 (Samoa) 5) Internal Affairs Act 1995 (Samoa) 6) Land and Titles Act 1981 (Samoa) 7) Law Reform Commission Act 2008 (Samoa) 8) Lawyers and Legal Practitioners Act 2014 (Samoa) 9) Medical Council Act 2015 (Samoa) 10) Ministry of Health Act 2006 (Samoa) 11) Ministry of Women Affairs Act 1990 (Samoa) 12) Ombudsman (Komesina o Sulufaiga) Act 2013 (Samoa) 13) Prisons and Corrections Act 2013 (Samoa) 14) Public Trust Act 1975 (Samoa) 15) Samoa Water Authority Act 2003 (Samoa) 16) Slaughter and Meat Supply Act 2015 (Samoa) 17) Telecommunications Act 2005 (Samoa) 18) Village Fono Act 1990 (Samoa) 19) Wills Act 1975 (Samoa)

Acts of Parliament of other countries 1) Constitution of Kiribati 1979 (Kiribati) 2) Constitution of Solomon Islands 1978 (Solomon Islands)

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3) Constitution of the Federated States of Micronesia 1978 (Federated States of Micronesia) 4) Constitution of the Independent State of Papua New Guinea 1975 (Papua New Guinea) 5) Constitution of the Republic of Fiji 2013 (Fiji) 6) Constitution of the Republic of Marshall Islands 1979 (Marshall Islands) 7) Constitution of the Republic of Palau 1981 (Palau) 8) Constitution of the Republic of Vanuatu 1980 (Vanuatu) 9) Constitution of Tokelau 1995 (Tokelau) 10) Constitution of Tuvalu 1978 (Tuvalu) 11) Cook Islands Act 2007 (Cook Islands) 12) Senior Courts Act 2016 (New Zealand) 13) Te Ture Whenua (Maori Land) Act 1993 14) Vanuatu Law Commission [Cap 115] (Vanuatu)

Subsidiary Legislation of other countries 1) Maori Land Court Rules 2011

Others 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 Atila 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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