Mapuilesua v Land and Titles Court [2012] WSCA 7 (31 May 2012)

Court of Appeal of Samoa

Mapuilesua v Land and Titles Court [2012] WSCA 7

Case name: Mapuilesua v Land and Titles Court

Citation: [2012] WSCA 7

Decision date: 31 May 2012

Parties:

SALAILEULUFA SIOLOGA MAPUILESUA matai of Gataivai, Savaii v LAND & TITLES COURT established under the Constitution & the Land & Titles Act 1981 and MULIIFUSI TOGAFAU VAOITA LEOTA SIAANA, AGALELI TASIAANA OGAFAU & TALITIGA TOALA MULIFUSI all Matais of Gataivai, Savaii and FA’ASAVALU TIATIA, FA’AOLA TU’UAU, & TIATIA TAVITA all Matais of Samata, Gataivai

Hearing date(s): 29 May 2012

File number(s): CA 14/11

Jurisdiction: Civil

Place of delivery: Mulinuu

Judge(s):

Honourable Justice Baragwanath

Honourable Justice Fisher

Honourable Justice Galbraith

On appeal from:

Order:

Representation:

L T Malifa for appellant

D Kerslake and M Lui for first respondent

M Peteru for second respondent abides the decision of the Court

Catchwords:

Words and phrases:

Legislation cited:

Cases cited:

Mulitalo Tialino Saena Penaia II & Ors v The Land and Titles Court CA7/11

Summary of decision:

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

C.A. 14/11

BETWEEN:

SALAIULUFA SIOLOGA MAPUILESUA

Appellant

AND:

LAND & TITLES COURT

First Respondent

AND:

MULIIFUSI TOGAFAU VAOITA, LEOTA SIAANA, AGALELI TASIAANA OGAFAU & TALITIGA TOALA MULIFUSI

Second Respondents

AND:

FA’ASAVALU TIATIA, FA’AOLA TU’UAU, & TIATIA TAVITA

Third Respondents

Coram:

Honourable Justice Baragwanath

Honourable Justice Fisher

Honourable Justice Galbraith

Counsel:

L T Malifa for appellant

D Kerslake and M Lui for first respondent

M Peteru for second respondent abides the decision of the Court

Hearing: 29 May 2012

Judgment: 31 May 2012

JUDGMENT OF THE COURT

Introduction and result

1. This appeal was argued immediately after Mulitalo Tialino Saena Penaia II & Ors v The Land and 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.
2. The appellant Salaiulufa Siologa Mapuilesua appeals against a decision of the Supreme Court striking out an application for judicial review of a decision of the Appellate Division of the Land and Titles Court that the second and third respondents are included in the extended family of the matai title “Mapuilesua”. The learned Chief Justice held that the application is barred by provisions of the Land and Titles Act 1981.
3. Section 34 of that Act continues to confer on the Land and Titles Court all the jurisdiction it exercised before the 1976 Act came into force and adds:

(2) In particular the Court shall have exclusive jurisdiction:

(a) In all matters relating to Samoan names and titles;

(b) To make orders or declarations in respect of Samoan names and titles as may be necessary to preserve or define the same, or the rights or obligations attaching to those names and titles in accordance with the customs and usages of the Samoan race and all laws in force in Samoa with reference to customs and usages;

(c) In all claims and disputes between Samoans relating to customary land, and the right of succession to property held in accordance with the custom and usages of the Samoan race.

Sections 70 and 71 provide:

70. Effect of final decision – Subject to an appeal under Part IX, every final decision of the [Lands and Titles] Court on a petition shall be deemed to be judgment in rem and shall bind all Samoans who are affected by it, whether parties to the proceedings or not.
71. Decisions and orders not reviewable by other Courts – 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 Chief Justice rejected the appellant’s contention that the appellant has fundamental rights under the Constitution of the State of Samoa which, it is common ground, to the extent of any conflict overrides these sections. We agree with the conclusion of the Chief Justice.

Factual setting

4. The title Mapuilesua of the village of Gataivai was bestowed on Popolelemaveve whose wife Tuimana bore him three sons, Tausili, Vaavale and Salaiulufa. They and their descendants are the suli moni (true heirs) of Popolelemaveve and are therefore entitled to be included in the aiga potopoto (extended family) of the title.
5. The Trial Division of the Land and Titles Court sitting at first instance found that the present appellant was the true heir of Salaiulufa and other parties were the true heirs of Tausili and Vaavale and all were members of extended family of the title Mapuilesua; the second and third respondents were not true heirs of the title.
6. On appeal the Appellate Division of the Land and Titles Court found that, as well as the appellant, the third respondents are true heirs of Salaiulufa; the second respondents are true heirs of Tausili; and all are entitled to be included in the extended family of the matai title “Mapuilesua”.

The appellant’s challenge to the strike-out decision of the Supreme Court

7. The appellant resists the inclusion of the second and third respondents as true heirs and as members of the family of Mapuilesua. He contends that, notwithstanding the ouster provisions of the Lands and Titles Act, he is entitled to challenge the decision of the Appellate Decision by proceedings under Article 4 of the Constitution to secure a remedy for alleged breach of rights under Articles 6(1) and 9. These Articles state:

Fundamental Rights

...

4. Remedies for enforcement of rights - (1) Any person may apply to the Supreme Court by appropriate proceedings to enforce the rights conferred under the provisions of this Part.

...

(2) The Supreme Court shall have power to make all such orders as may be necessary and appropriate to secure to the applicant the enjoyment of any of the rights conferred under the provisions of this Part.

...

6. Right to personal liberty – (1) No person shall be deprived of his personal liberty except in accordance with law.

(2) Where complaint is made to the Supreme Court that a person is being unlawfully detained, the Court shall inquire into the complaint and, unless satisfied that the detention is lawful, shall order him to be produced before the Court and shall release him.

(3) Every person who is arrested shall be informed promptly of the grounds of his arrest and of any charge against him and shall be allowed to consult a legal practitioner of his own choice without delay.

(4) Every person who is arrested or otherwise detained shall be produced before a Judge of the Supreme Court, some other judicial officer, the Registrar of the Supreme Court or of any subordinate Court or any Deputy Registrar of the Supreme Court or of any subordinate Court from time to time approved in writing for this purpose by the Registrar of the Supreme Court (hereinafter collectively referred to as "remanding officers") within a period of 24 hours (excluding the time of any necessary journey), and no such person shall be detained beyond that period without the authority of one of the remanding officers.

...

9. Right to a fair trial – (1) In the determination of his civil rights and obligations or of any charge against him for any offence, every person is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established under the law.

...

Contentions on appeal

8. The appellant’s counsel argues, contrary to the decision of the Chief Justice, that rejection of his claim to exclude the second and third respondents from membership of the extended family of the title has “deprived [him] of his personal liberty” contrary to Article 6(1); and that the decision of the Appeals Division is challengeable because he has not had “...a fair and public hearing within a reasonable time by an independent and impartial tribunal” contrary to Article 9(1).

Discussion

9. For the reasons given in Mulitalo Penaia we have concluded that dilution of the rights of the appellant by increasing the number of persons possessing status as true heir of Popolelemaveve and within the extended family of the title is not a “depriv[ation] of [the appellant’s] personal liberty” within the meaning of Article 6(1). In that decision we have further held that, in the absence of any plea of lack that the hearing before the Land and Titles Court was other than a “fair and public hearing within a reasonable time by an independent and impartial tribunal”, the absence of any right to challenge the decision of the Appeals Division in the Supreme Court does not infringe Article 9(1). That conclusion disposes of the appellant’s remaining argument.

Decision

10. The appeal is dismissed. Because of the test case nature of the appeal the costs payable by the appellant to the respondent are fixed at $2,500.

Honourable Justice Baragwanath

Honourable Justice Fisher

Honourable Justice Galbraith