Falefia v Attorney General [2004] WSCA 3 (17 December 2004)

IN THE COURT OF APPEAL OF SAMOA
HELD AT APIA

BETWEEN

PAULI FALEFIA
(for and on behalf of PAULI TAETAFE)
Appellant

AND

THE ATTORNEY GENERAL
Respondent

Coram: The Rt Hon Lord Cooke of Thorndon, President
The Rt Hon Sir Maurice Casey
The Rt Hon Sir Gordon Bisson

Counsel: S Toailoa for Appellant
D Clarke and S Rimoni for Respondent

Hearing: 8 December 2004
Judgment: 17 December 2004

JUDGMENT OF THE COURT DELIVERED BY SIR GORDON BISSON

By Notice of Appeal dated 1^st November 2004 the appellant sought orders:

(a) Setting aside the judgment of Vaai J dated the 5^th of May 2004;

(b) Reinstating the Appellant’s claim; and

(c) Referring the Appellant’s claim back to the Supreme Court for determination;

(d) Awarding costs to the Appellant.

By Notice of Motion dated 1^st November 2004 the appellant sought orders:

(a) Extending time to the Appellant to file his appeal;

(b) Granting leave to appeal to the Court of Appeal the judgment herein of His Honour Lesatele Rapi Vaai J dated the 5^th of May 2004; and

(c) Reserving costs.

The Respondent filed Notice of Opposition dated 29^th October 2004 to the application for leave to appeal and extension of time to file the appeal. We decided to consider the merits of the appeal before we considered the question whether leave should be granted to appeal out of time.

In his statement of claim dated 28^th March 2002 the plaintiff pleaded that he was the owner of customary land at Salelologa known as "Vaio" and that over 20 years ago certain portions of his land were required by the Government for public purposes. The plaintiff stated that in negotiation with a relative who was a Minister of Cabinet he believed his land was taken on a lease basis for 20 years which expired at the end of 2000 when he would have his land back. He then claimed that only recently, he had discovered that portions of his land had been taken compulsorily by Proclamation. He alleged that the defendant had violated Article 14(1)(a) of the Constitution of Samoa and sections 25 and 26 of the Taking of Land Act 1964 in that no adequate (or any compensation at all) was paid to him within a reasonable time. He contended that s.27(1) of the Taking of Land Act 1964 barring any claim for compensation shall be made after five years from the date of the Proclamation was a restriction which undermined the spirit and intent of Article 14(1)(a) of the Constitution and he prayed for:

(a) A declaration that s.27(1) of the Taking of Land Act 1964 contravenes Article 14(1)(a) of the Constitution and was therefore null and void;

(b) Judgment in the sum of $3.2 million for compensation;

(c) An order for costs;

(d) Such further or other relief as the Honourable Court deems just;

According to paragraph 6 of the defendant’s Statement of Defence dated 3^rd May 2002, it denies that no compensation has been paid or received by the plaintiff and says that $12309.98 is recorded as having been paid in compensation. There is accordingly a dispute on that issue but we are not called upon to resolve it. What this Court is asked to decide is whether the applicant’s claim is statute barred by virtue of s.27(1) of the Taking of Land Act 1964 which turns on whether that section is unconstitutional by virtue of Article 14(1)(a) of the Constitution. Those provisions are as follows,

"Section 27(1) Taking of Lands Act 1964

Limitation of time for claiming compensation – (1) No claim for compensation under this Act, or any former enactment relating to the taking of land for public purposes, shall be made (in respect of any lands taken) after a period 5 years after the date of the Act or Proclamation taking the lands, or (in respect of any damage done) after a period 12 months after the execution of the purpose out of which the claim has arisen or may hereafter arise."

Article 14(1)(a) of the Constitution provides:

"Rights regarding property – (1) No property shall be taken possession of compulsorily, and no right over or interest in any property shall be acquired compulsorily, except under the law which, of itself or when read with any other law:

(a) Requires the payment within a reasonable time of adequate compensation therefor:"

Article 14(2) of the Constitution provides:

"Nothing in this Article shall be construed as affecting any general law:

(h) Relating to the limitation of actions;"

In the Supreme Court the applicant argued that the saving provisions of Article 14(2)(h) relating to the limitation of actions did not apply as the Taking of Land Act 1964 was in terms of Article 14(2) not "general law." In his decision of 5 May 2004 Vaai J held that it was general law so that the five year limitation period of s.27(1) was not unconstitutional. He went further and held,

"So that Articles 14(1)(a) and 14(2)(h) when read together empowers Parliament to enact laws to provide for the taking of land and provide compensation to be paid within a reasonable time. The Taking of Lands Act 1964 was enacted for that "purpose."

However, this Court questioned whether a claim for compensation was an "action" within the meaning of Article 14(2)(h). The Taking of Land Act 1964 has its own procedure for claiming compensation (see s.31) which is not by action under Rule 11 of the Supreme Court (Civil Procedure Rules) 1980.

When faced with this new approach to the problem Mr Toailoa conceded both that the Taking of Land Act 1964 was general law and that for the above reason Article 14(2)(h) did not apply. Turning to s27(1) and to Article 14(1)(a) he further conceded that the limitation period of five years was not in breach of that Article requiring the payment within a reasonable time, and he conceded that the Court had no discretion to extend the time for claiming compensation if the Proclamation was valid.

Having made those concessions, very properly, Mr Toailoa then withdrew his earlier concession that the Proclamation was itself valid and sought to argue that the plaintiff’s pleadings in his statement of claim raised a suspicion that there may have been some failure on the part of the Minister to adhere strictly to the requirements of the Taking of Land Act 1964 thereby rendering the Proclamation invalid. He frankly appreciated he would have some difficulty in this approach. This would involve a complete transformation of the claim for compensation which the respondent is entitled to have dismissed. It would no longer be a claim for compensation. Instead it would be a claim that the land had not been lawfully taken and for restitution and/or common law damages. Such a substituted claim would appear to be barred under the Limitations Act 1975 apart from other difficulties. The plaintiff’s claim is clearly statute barred being some years out of time. Having reached that conclusion on the merits of the appeal, we formally grant leave to appeal out of time and dismiss the appeal. There is no occasion to consider the respondent’s further argument that the daughter of the plaintiff who brought the appeal has no apparent standing to represent the estate of the late plaintiff.

Costs should follow the event. The respondent is entitled to costs of $500.00 against the applicant.

Solicitors:
Toailoa’s Law Office for Appellant
Attorney General’s Office for Respondent