To'ailoa v Sapolu [2006] WSCA 1 (26 April 2006)

IN THE COURT OF APPEAL OF SAMOA
HELD AT APIA

IN THE MATTER of ALC 5126, 5126 P1 – P7, and the decision of the First Defendant of 9 July 2004, granting leave to appeal to the Second Defendant.

BETWEEN

PUNAFELUTU R S TO’AILOA
of Leili, Solicitor.
Appellant

AND

PĀTU TIAVA’ASUE FALEFATU MAKA SAPOLU,
President of the Lands and Titles Court.
First Respondent

AND

SU’A RIMONI AH CHONG,
Chartered Accountant of Lotopa.
Second Respondent

Coram: The Honourable Justice Ellis
The Honourable Justice Gallen
The Honourable Justice Salmon

Hearing: 20 April 2006

Counsel: Mr. R S To’ailoa for the Appellant
Mrs. B Heather-Latu and Mr. D Kerslake for the First Respondent
Second Respondent in person

Judgment: 26 April 2006

JUDGMENT OF THE COURT

Introduction

[1]. This appeal against a decision of the Supreme Court arises out of proceedings in the Land and Titles Court.

Background

[2]. On 22 April 1999 the Land and Titles Court gave its decision on petitions as to the true heirs of the title Vui. A petition seeking leave to appeal was filed requesting that the decision of the Court be set aside. The petition was heard by the 1st Respondent as President of the Court on 8 July 2004 and on the next day he gave a decision granting leave to appeal.

[3]. By notice of motion dated 20 September 2004 the present appellant sought judicial review in the Supreme Court of the 1st Respondent’s decision granting leave to appeal. The application for review was heard by Bisson J on the 2 and 3 December 2004. He gave a decision on the 12 December dismissing the motion for judicial review.

[4]. The principle issue dealt with by Bisson J in his decision was the question as to whether the 1st Respondents decision had violated the Appellant’s right to a fair hearing under Article 9 (1) of the Constitution of the Independent State of Samoa. The Judge concluded that there had been no such violation. It is not necessary to traverse in detail the manner in which the rights of the Appellant were said to be violated because when the Appeal came to be argued in this Court the issue advanced was a different one.

The Appeal

[5]. The Appeal as lodged raised a variety of issues as indeed did the statement of claim in the Supreme Court, however by a notice dated 18 April 2006 the Appellant advised that his appeal would be confined to the issue of whether the Supreme Court has the power to review generally the decisions of the Land and Titles Court.

[6]. The Second Respondent named in the Supreme Court proceedings and in the Appeal proceedings, is Su’a Rimoni one of the petitioners who sought leave to appeal the decision of the Land and Titles Court. He is also known as Su’a Rimoni Ah Chong.

The appellant’s submission

[7]. It is settled law in Samoa that the Supreme Court is empowered under Article 4 of the Constitution to review a decision of the Land and Titles Court where a breach of fundamental rights is alleged and a remedy is sought. The appellant however submits that the Supreme Court has a general power of review of decisions of the land and Titles Court and wishes this Court to so rule.

[8]. The view taken hitherto is that the Supreme Court’s power of review is limited by Section 71 of the Land and Titles Act 1981 which provides:

'Subject to this Act, no decision or order of the Court shall be reviewed or questioned in any other Court by way of appeal, prerogative writ or otherwise howsoever.'

The only exception which has been allowed to this privative clause is in respect of the Constitutional issue earlier referred to.

[9]. Mr. Toailoa submits, relying on the well known decision of Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6; [1969] 2 AC 147, that the privative clause should not be permitted to oust the Supreme Courts jurisdiction to review for excess of jurisdiction. Indeed he goes further and submits that review should be allowed on any of the grounds now recognised in common law jurisdictions. This latter contention was not well developed in his submissions.

The Respondents submissions

[10]. The Attorney General for the 1st Respondent submitted that this was not an appropriate case in which to determine these highly important issues. She said they had not been properly raised in the Supreme Court. Indeed the question of a general revisionary power of review was only argued in reply to a submission made by the 1st Respondent. In these circumstances the question was not comprehensively considered.

[11]. The Attorney General submitted that the justice system in Samoa operates in reliance on the maintenance of an extremely fine and a sensitive balance between European concepts and democracy, law and justice on the one hand and the modern manifestations of Samoan customs/tradition and cultural observance on the other. The jurisdiction of the Land and Titles Court is an essential element in this duality.

[12]. The 2nd Respondent emphasised these considerations. He expressed the concern that a wider exercise of the review jurisdiction may ultimately lead to the demise of the Land and Titles Court. Such a development would result in litigating a major part of customary matters in the Supreme Court using European style Court concepts not convenient or appropriate to such matters.

Discussion

[13]. We are being asked to rule on a hypothetical issue. The general question posed by the appellant does not arise from the decision the subject of appeal. The Court has a discretion as to whether to answer a hypothetical question on an application for review. The Court’s primary role is to resolve existing disputes between parties where their decisions will have immediate and practical consequences for at least one of the parties. There are cases where answering a hypothetical question may be entirely appropriate. We have concluded that this is not one of those cases.

[14]. We have decided to exercise our discretion against answering the issue posed by the appellant for the following reasons:

(1) The issue was not directly raised in the appellants pleadings. As a consequence it was not a central issue in the argument before the Supreme Court. An Appellate Court is always very much assisted by a reasoned decision reached by the Court appealed against after hearing full argument on the question at issue.

(2) In the generality of cases the Courts will prefer to answer questions against a background of decided facts. In the present case the decision which is the subject of review is a grant of leave to appeal. Such a decision is not an appropriate background for the important issue raised by the appellant.

(3) We were advised from the bar that there are other proceedings due to be heard in the Supreme Court early next year which will raise at least some of the issues which the appellant wants to determined. These proceedings have a proper factual background against which the issues can be determined.

(4) We think it is preferable that if the grounds of review are to be extended it should be on an incremental basis from decisions made on the facts of particular cases.

(5) The most important consideration is that the issue, concerning as it does, the jurisdiction of the Land and Titles Court, raises matters of crucial cultural concern to Samoa and Samoans. We are of the view that it is essential that such matters be considered by a Samoan Judge sensitive to such concerns before coming to an appellate court consisting of Judges from a different culture. We regard it as of the utmost importance that an issue so central to Samoan tradition and culture should be the subject of consideration first by a Judge immersed in such culture. The findings of the Supreme Court will be of enormous assistance to the Court of Appeal should the matter ultimately come to this Court.

Determination

[15]. For the above reasons the appeal is dismissed. The respondents sought costs. They submitted that because of the Appellants late withdrawal of his substantive grounds of appeal costs should be awarded in their favour. We consider that costs should follow the event in the usual way. The 2nd Respondent appeared in person and is therefore not entitled to costs. A factor in the award of costs to the 1st Respondent is that it was not until the day prior to the Court hearing that a major part of the grounds of appeal was abandoned. By that time the Respondent had undertaken extensive research and prepared submission addressing all points raised. In those circumstances we order the Appellant to pay the 1st Respondent $1000 by way of costs together with disbursements to be fixed by the Registrar.

Honourable Justice Ellis

Honourable Justice Gallen

Honourable Justice Salmon

Solicitors

Toa Law for the Appellant
Attorney General’s Office, Apia, for the First Respondent
Second Respondent in person