Lavea v Kerslake [2015] WSCA 3 (17 April 2015)

COURT OF APPEAL OF SAMOA
Lavea and Mulitalo v Kerslake, Alii and Faipule Saluafata, Reiche [2015] WSCA 3

Case name:	Lavea and Mulitalo v Kerslake, Alii and Faipule Saluafata, Reiche
Citation:	[2015] WSCA 3
Decision date:	17 April 2015
Parties:	Tagaloamatua Mulitalo Lisona Lavea (First Appellant) Manoó Lutena Mulitalo (Second Appellant) Tagaloa Sale Kerslake (First Respondent) Alii and Faipule of Saluafata (Second Respondent) Poloai Michael von Reiche (Third Respondent)
Hearing date(s):	14 April 2015
File number(s):	CA17/14
Jurisdiction:	Civil
Place of delivery:	Mulinuu, Courthouse
Judge(s):	Honourable Justice Fisher Honourable Justice Blanchard Honourable Justice Panckhurst
On appeal from:	Tagaloamatua Mulitalo Lisona Lavea, Manoo Lutena Mulitalo v Tagaloa Sale Kerslake, Alii and Faipule of Saluafata, Poloai Michael von Reiche (Supreme Court matter)
Order:	The appeals are dismissed. The respondents as a group have appropriately been represented by one senior and one junior counsel. The appellants are each ordered to pay the respondents the sum of $4000 plus disbursements to be fixed by the Registrar. For the removal of doubt, the respondents are to receive a total of $8000 plus disbursements.
Representation:	L T Malifa and Lealiifano Dr I Tanielu for First Appellant P Mulitalo for Second Appellant S Wulf and D Kerslake for First and Second Respondent Third Respondent in person
Catchwords:	CUSTOMARY LAND – 872 acres -
Words and phrases:
Legislation cited:	Land and Titles Act 1981
Cases cited:	Penaia II v Land and Titles Court
Summary of decision:

IN THE COURT OF APPEAL OF SAMOA

HELD AT MULINUU

C.A 17/14

BETWEEN:

TAGALOAMATUA MULITALO LISONA LAVEA
First Appellant

A N D:

MANO’O LUTENA MULITALO
Second Appellant

A N D:

TAGALOA SALE KERSLAKE
First Respondent

A N D

: ALII & FAIPULE OF SALUAFATA
Second Respondent

A N D:

POLOAI MICHAEL von REICHE
Third Respondent

Coram: Honourable Justice Fisher
Honourable Justice Blanchard
Honourable Justice Panckhurst

Hearing: 14 April 2015

Counsel: L T Malifa and Lealiifano Dr I Tanielu for First Appellant
P Mulitalo for Second Appellant
S Wulf and D Kerslake for First and Second Respondent
Third Respondent in person

Judgment: 17 April 2015

JUDGMENT OF THE COURT

INTRODUCTION

1. The appellants say that although they and their family own customary land in Solaua the rent from the land has been wrongfully taken by the first respondent and his family. When the appellants sued the respondents in the Supreme Court Vaai J adjourned the proceedings pending resolution of certain land matters in the Land and Titles Court. The appellants appeal against the adjournment and related orders.

FACTUAL BACKGROUND

2. The first appellant, Tagaloamatua Mulitalo Lisona Lavea, and the second appellant, Mano’o Lutena Mulitalo, are members of the Tagaloamatua Mulitalo family.
3. The first respondent, Tagaloa Sale Kerslake, is a member of the family said to be taking the rent, a former Minister of Lands, Surveys and Environment, and the current President of the Land and Titles Court.
4. The second respondents, the Ali’i and Faipule of Saoluafata, are the council of chiefs and orators of the village next to the subject land. They are said to have supported the first respondent’s claim to the land by requiring the first appellant to leave the land.
5. The third respondent, Poloai Michael von Reiche, is a businessman who currently leases the subject land from the family of the first respondent.
6. The subject land is customary land in Solaua. It comprises 872 acres of land described as Parcel 93 Flur XVII, Upolu, registered in Volume 3 Folio 6. Parcel 93 is shown on Plan 65U/XVII S.
7. The land has a complex history. For present purposes it is unnecessary to set out the details. Blocks of land in the area were leased to the Samoa Rubber Company (“SKC”) on behalf of customary owners in about 1913. The lease or leases expired in about 1951. They were replaced in 1953 when the British–New Zealand administration in Samoa, acting on behalf of the customary owners, granted a new lease.
8. The new lease, known as “Lease 811”, was to the lessees from whom the third respondent originally derived his rights as lessee. The lease applied to a single surveyed block of 872 acres which may or may not be the land affected by the original lease.
9. The second lease was in turn replaced by a third one to the third respondent in 2005. It applied to the same surveyed 872 acres. The appellants say that the 2005 lease was wrongfully authorised or granted on behalf of the customary owners by the first respondent in his capacity as Minister at the time.
10. For many years there have been inter-family disputes over ownership of the underlying land, and therefore entitlement to the rent. The disputes have been the subject of decisions of the Land and Titles Court and its predecessors at various times including 1921, 1951 and 1953. The disputes were also the subject of a mediated agreement recorded in a decision of 1959.
11. At some point the first appellant appears to have taken up occupation of some of the land in dispute. No details have been provided on that subject except that on 2 October 2013 the Lands and Titles Court issued an interim order requiring him to leave. That seems to have sparked his issue of the current proceedings 26 days later. In addition to his right to occupy, past and future rent receipts are now at issue. Although the rent has always gone to the first respondent’s family, the appellants say that it has always been rightfully theirs.

PROCEEDINGS IN THE SUPREME COURT

12. The first appellant’s proceedings were commenced with a “Notice of Application Seeking Enforcement of Fundamental Right under the Constitution” supported by affidavit. This document claims that:

(a) The third respondent’s occupation of the subject land without compensation “upon authority of the 1^st Respondent, supported by the 2^nd Respondent” breaches his rights under Art 14 of the Constitution, and the occupants must vacate.

(b) The interim order of the Land and Titles Court of 2 October 2013 is “illegal, unlawful and unconstitutional” as the first appellant was not given an opportunity to be heard and the order was made under the first respondent’s authority when he was conflicted.

(c) Banishment decrees by the first and second respondents on or about 18 October 2013 were unconstitutional in that the first appellant and his family were not given an opportunity to be heard.

13. The remedies sought in the Notice of Application are damages, an order that the land be vacated, and orders that the 2013 interim order of the Land and Titles Court, and a subsequent banishment decree, be declared illegal and unconstitutional.
14. In May 2014 the second appellant commenced his own proceedings by way of action and an application to have the first appellant’s proceedings joined to his. In his statement of claim the first appellant advanced five causes of action:

(a) Breaches by the first and second respondents of court decisions from 1921, 1951 and 1959 by enabling the wrongful occupation of the subject land when it had been held and agreed that it belonged to the Tagaloamatua Mulitalo family.

(b) Trespass by the third respondent in using the land as the lessee under the 2005 lease.

(c) Misfeasance in a public office by the first defendant, as Minister of Lands, Survey and Environment, in granting the 2005 lease.

(d) Estoppel arising from representations made by the Kerslake family in 1959 which prevent them from controlling and using the subject land

(e) Breach of art 14 of the Constitution by the first and second respondents in wrongfully taking the subject land.

15. For all five causes of action the second appellant seeks damages, an order declaring the 2005 lease agreement to be void and an order declaring that the land is controlled and owned by the Tagaloamatua Mulitalo family and/or by the first appellant. By a notice of motion of 23 May 2014 the second appellant also seeks a declaration affirming or upholding the decisions made in 1921, 1951 and 1959.
16. The respondents moved to strike out the proceedings of both appellants. It appears that the motion for joinder must have been granted because there was a joint hearing of the strike-out motions on 30 October 2014.
17. At the conclusion of the hearing on 30 October 2014 the Judge gave the following rulings without reasons:
    1. The Plaintiffs/Applicants Notice of Motion and Statements of Claim are adjourned sine die.
    2. The Plaintiffs/Applicants are ordered to file petitions in the Lands and Titles Court to determine the beneficial owner(s) of land described as parcel 93 Flur XVII Upolu being part of Solaua area under lease 811.
    3. The court’s ruling on the strike out motion is also adjourned sine until the Land & Titles Court has determined the ownership of the land referred to in paragraph 2 above.
    4. All rents payable and due from the third respondent are to be paid to the Ministry of Natural Resources and Environment and are to be held on trust by the Ministry until further order of this court.
    5. The plaintiff/Applicant Tagaloamatua is to file a statement of claim specifying the nature of compensation and the amount of compensation or damages he is seeking under the Notice of Motion.
18. The appellants each filed motions to appeal against those orders. Leave to appeal was granted by Vaai J on 29 January 2015.
19. Mr Mulitalo, for the second appellant, then decided to send a letter of 4 March 2015 to the Registrar requesting that the 30 October 2014 orders be amended to require a survey of the subject. He also argued that the 1921, 1951 and 1959 decisions had conclusively decided the ownership of the Lease 811 land. He did not send a copy of the letter to the respondents.
20. The Judge responded on 9 March 2015 with the issue of a ruling which stated:
    1. The request by counsel for the Applicant Mano’o Lutena Mulitalo should have been copied to other counsels.
2. The request to amend my order of the 30th October 2014 to survey the 600 and 330 acres lots is denied. The 330 and 600 acres should have been surveyed before the claims were filed in the Supreme Court. I made it quite obvious and quite plainly to counsels that from the documentations the plaintiffs/applicants own 600 and 330 acres of land at Solaua but how much of those lands if any is included in the current lease is not conclusive. Mr Leung Wai who was then counsel for Mulitalo agreed. So did Mr Wulf. Neither parties could identify the boundaries of the 600 acres lots and the 330 acres lot.
3. Mr Malifa attempted to convince me that the leased land belongs to the plaintiffs/applicants. I was not convinced. That issue must be resolved by the Land and Titles Court. It is not the jurisdiction of this court to determine ownership and boundaries of customary land.
4. But the 330 acres lot and the 600 acres lot are obviously located some distance apart with the 600 acres closer to the mountains and the 330 acres towards the sea. The lease is one block of land. It follows therefore that the leased land could not and more probably does not comprise all of lots 330 and 600 acres, if indeed any of the lots is included in the lease.
5. Counsel’s request must be denied. He cannot use these proceedings to rectify what should have been done before these proceedings were filed, that is, to clearly identify the 330 acres lot and the 600 acres lot. It is for the applicants/plaintiffs to petition the Land and Titles Court to determine and identify the boundaries of their lands.
21. The second appellant appeals against that ruling as well as that of 30 October 2014.

THE APPEAL

22. One of the grounds of appeal advanced by both counsel in the present case was that the Supreme Court orders lacked reasonable explanation. In fairness to the Judge it may have been thought that because the decisions did not finally determine the rights of the parties it was unnecessary to set out the essential background and, in that light, to fully explain the reasons for the rulings that followed. Some reasons were provided in the second of the two rulings, albeit terse.
23. However desirable, it may not always be practicable for a court to give written reasons for orders of an interlocutory or timetabling nature. But as a general rule courts of superior jurisdiction should offer reasons for their decisions. The orders in the present case had far-reaching consequences for the appellants, effectively barring their right to a remedy in the Supreme Court until proceedings (probably protracted) had been concluded in another court.
24. Recorded reasons enable parties and their counsel to understand the rationale for decisions and to decide whether, in the light of the reasons given, there are grounds for an appeal. Reasoned decisions at first instance are also of immense value to a court sitting on appeal, particularly where a historical land case is involved. It saves much time investigating the background and trying to understand why the court at first instance made the decisions it did. If that is not done, the parties are inclined to begin the case all over again in the appellate court.
25. In this Court the appellants sought to traverse the history afresh and to argue the full merits of the dispute between them and the respondents. Before embarking on that exercise we have required the parties to address jurisdiction. The threshold question is whether all or part of the dispute fell within the exclusive jurisdiction of the Lands and Titles Court. The exclusive jurisdiction of that Court was evidently the basis for the rulings given in the Supreme Court.
26. As to jurisdiction, Mr Malifa, for the first appellant, acknowledged that the Lands and Titles Court normally had exclusive jurisdiction over matters relating to customary land. However he submitted that this case was an exception in that his client was relying on the Constitution.
27. For the second appellant, Mr Mulitalo submitted that each of the five causes of action advanced on behalf of his client fell outside the jurisdiction of the Lands and Titles Court. He submitted that rights in relation to the land in question had already been determined by that Court. He also pointed to the Constitution as the basis for the fifth cause of action.
28. We begin with general principles as to the allocation of jurisdiction between the Lands and Titles Court and the Supreme Court. We then apply those principles to the cases advanced by these two appellants.

ALLOCATION OF JURISDICTION BETWEEN SUPREME COURT AND LAND AND TITLES COURT

29. The key issue is the Supreme Court’s jurisdiction to hear the matters raised by the first appellant in his notice of motion and the second appellant in his statement of claim.
30. The exclusive jurisdiction of the Land and Titles Court stems from s 34 of the Land and Titles Act 1981 which provides:
    • 34 Jurisdiction of the Court

(1) The Court shall continue to have all the jurisdiction it exercised prior to this Act coming into force.

(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 customs and usages of the Samoan race.

(3) The Court also has the jurisdiction conferred by this Act.

31. There is limited scope to challenge decisions of the Land and Titles Court. Sections 70 and 71 provide:

70 Effect of final decision – Subje an appealppeal under Part IX, every final decision of the Court on a petition is deemed to be judgment in rem and shall bind all Samoans who are affected by it, whether parties to the proceedor not.

71. Decisions and orders not reviewable by other Courts &#8Subject to this Act, 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.
32. Appeals under Part IX are conducted by an expanded bench of the Land and Titles Court and there is no further right of appeal. As a general rule decisions of the Land and Titles Court cannot be challenged in the Supreme Court: Penaia II v Land and Titles Court [2012] WSCA 6.
33. There are, however, certain exceptional circumstances in which a dispute in which customary land is involved may finish up in the Supreme Court (or in appropriate cases District Court). The first arises from the Supreme Court’s role in enforcing Land and Titles Court decisions and orders. In that regard s 74 of the Land and Titles Act provides:
    • 74 Enforcement of decisions and orders of the Court –

(1) A decision or order of the Court shall be enforced in and by the Supreme Court or, as the case may be, by the District Court.

(2) For the purposes of subsection (1):

(a) a decision or order of the Court is taken to be a judgment or order of the Supreme Court or, as the case may be, of the District Court; and

(b) a rule of procedure of the Supreme Court or the District Court, and an enactment, with the necessary modifications, apply to a decision or order of the Court, as if the decision or order were a judgment or order of the Supreme Court or, as the case may be, the District Court.

(3) A sealpy of the decision oion or order to be enforced under this section is to be filed in the Supreme Court, or the District Court.

34. 34"> It is important to note that s 74 does not involve the issue of fresh and independent proceedings in the Supreme Court, as was the course taken by both appellants in the present case. The procedure involves no more than the sealing of the original decision or order which had already been made in the Land and Titles Act, the filing of that document in the Supreme Court, and then the taking of the normal enforcement measures which would apply to a judgment of the Supreme Court itself.
35. A second avenue available to some plaintiffs will be to bring a civil claim in the Supreme Court that does not include rights in relation to customary land, or any other topics referred to in s 34 of the Land and Titles Act, as one of the essential elements of the cause of action. But such a cause of action could not include any “claims or disputes relating to customary land”.
36. A third avenue is that the plaintiff may be able to rely upon a relevant breach of the Constitution. In that regard art 4 provides:
    • 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.

37. As the Supreme Court has jurisdiction to secure enjoyment of rights conferred by the Constitution, and the Constitution overrides general legislation, a breach of the constitution may be pursued in the Supreme Court even if it relates to customary land. But an important rider here is that the Court’s remedies for a breach of the Constitution are discretionary. The discretion is broad but the Court will normally expect a plaintiff to exhaust his or her remedies under the general law before resorting to the Constitution. So a plaintiff claiming possession of, or title to, customary land will normally need to demonstrate why proceedings in the Land and Titles Court would not provide an adequate remedy.
38. There may be a fourth way in which plaintiffs can bring proceedings of this general nature in the Supreme Court. It may be possible to bring a civil claim that does include rights in relation to customary land as one of the essential elements of the cause of action if the Supreme Court is satisfied that any relevant claims or disputes in relation to that land have already been resolved by the Land and Titles Court. That may be implicit in s 34. But we heard no argument on that legal issue and, for reasons we will come to shortly, it is not necessary for us to decide it.
39. In summary, the general rule is that any dispute between Samoan individuals or families relating 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
    • (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.
40. If the claims of these appellants can be brought within one of those three categories they can be legitimately continued in the Supreme Court. There is a fourth possibility in relation to civil causes of action in the Supreme Court where all relevant claims or disputes in relation to customary land have already been resolved but it is unnecessary to determine that point.

CAN THE FIRST APPELLANT require the immediate continuation of HIS SUPREME COURT PROCEEDINGS?

41. For the first appellant Mr Malifa based his jurisdictional argument on breach of art 14 of the Constitution. Article 14 provides:
    • 14 Rights regarding property –

(a) 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:

(b) Requires the payment within a reasonable time of adequate compensation thereor;

(c) Gives to any person claiming that compensation a right of access, for the determination of his interest in the property and the amount of compensation, to the Supreme Court; and

(d) Gives to any party to proceedings in the Supreme Court relating to such a claim the same rights of appeal as are accorded generally to parties to civil proceedings in that Court sitting as a Court of original jurisdiction.

(2) Nothing in this Article shall be construed as affecting any general law:

(a)For the imposition or enforcement of any tax, rate or duty; or

(b) For the imposition of penalties or forfeitures for breach of the law, whether under civil process or after conviction of an offence; or

(c) Relating to leases, tenancies, mortgages, charges, bills of sale, or any other rights or obligations arising out of contracts; or

(d) Relating to the vesting and administration of the property of persons adjudged bankrupt or otherwise declared insolvent, of infants or persons suffering under some physical or mental disability, of deceased persons, and of companies, other corporate bodies and unincorporated societies, in the course of being wound up; or

(e) Relating to the execution of judgments or orders of Courts; or

(f) Providing for the taking of possession of property which is in a dangerous state or is injurious to the health of human beings, plants or animals; or

(g) Relating to trusts and trustees; or

(h) Relating to the limitation of actions; or

(i) Relating to property vested in statutory corporations; or

(j) Relating to the temporary taking of possession of property for the purposes of any examination, investigation or inquiry; or

(k)Providing for the carrying out of work on land for the purpose of soil conservation or for the protection of water catchment areas.

42. However art 14 is concerned with compulsory acquisitions by the state. “Compulsory acquisition” is a convenient phrase to refer to both the compulsory acquisition of title and the compulsory acquisition of possession. But in either case it is confined to acquisition by the state. It is not concerned with rights of competing private individuals.
43. Mr Malifa did not suggest that the present dispute could be regarded as compulsory acquisition by the state. In particular he did not seek to categorise any acts of the first respondent in his Ministerial capacity as compulsory acquisition by the state.
44. No compulsory acquisition within the scope of art 14 has been pleaded or alleged here. It follows that Supreme Court jurisdiction for the first appellant’s cause of action cannot be founded upon that provision of the Constitution.
45. In this Court Mr Malifa did not seek to develop any other arguments based upon breach of the Constitution. His notice of motion filed in the Supreme Court had included two other potential breaches of the Constitution. One alleged lack of opportunity to be heard, and conflict of interest, in relation to the Land and Titles Court’s interim order of 2 October 2013. The other alleged lack of opportunity to be heard in relation to banishment decrees imposed by the first and second respondents on or about 18 October 2013.
46. There would certainly seem to be jurisdictional scope for the two additional Constitutional causes of action to be to be pursued at the appropriate time in the Supreme Court. However neither goes to the substantive dispute between the parties which is the underlying right to own and occupy the land. Understandably, therefore, Mr Malifa did not seek to rely upon those alleged breaches of the Constitution as a ground for resisting the adjournment pending resolution of land issues in the Land and Titles Court.
47. Mr Malifa did not advance any other basis for Supreme Court jurisdiction.
48. There is no suggestion that either appellant had attempted to file and take enforcement steps in relation to existing decisions of the Land and Titles Court or its predecessors.

CAN THE SECOND APPELLANT require the immediate continuation of HIS SUPREME COURT PROCEEDINGS?

49. Mr Mulitalo appropriately accepted that each of the second appellant’s five causes of action was directly or indirectly concerned with competing claims upon the subject land. He did not seek to argue that any of the five could be brought within the second of the three exceptions referred to earlier, namely a civil cause of action which does not include rights in relation to customary land as one of its essential elements.
50. For the purpose of setting aside the Supreme Court adjournment Mr Mulitalo relied upon two other arguments. One was that it would be unnecessary to remit any part of this dispute to the Land and Titles Court because all necessary land matters had already been decided there. The other was that his client was relying upon breach of the Constitution.
51. As to the first of those arguments, we agree that in principle the Supreme Court can enforce an existing decision or order of the Land and Titles Court by sealing and filing a decision of the latter court under s 74 of the Land and Titles Act. That course was not followed in the present case. The reason for that was doubtless the lack of specificity in those decisions to which we will come shortly.
52. We have also left open the possibility that the Supreme Court might have jurisdiction to hear a civil cause of action where it is satisfied that any relevant claims or disputes in relation to the land in question have already been resolved by the Land and Titles Court. But that too requires sufficient specificity in the Land and Titles Court decisions to which we will come.
53. Mr Mulitalo’s other jurisdiction argument rested on alleged breaches of the Constitution. We have already traversed that argument in relation to the first appellant’s claim. There is nothing additional in relation to the second appellant.
54. For present purposes it is therefore sufficient to decide whether, as both Mr Malifa and Mr Mulitalo urged upon us, it would be unnecessary to remit any part of this dispute to the Land and Titles Court on the ground that all necessary matters have already been decided there. On any approach to the matter, Vaai J’s adjournment and related orders could not be challenged if there remain rights relating to the land which have yet to be finally resolved in the Land and Titles Court.

Is the dispute already resolved by decisions of the land and titles court?

55. Mr Malifa and Mr Mulitalo submitted that all necessary matters have already been decided by the Land and Titles Court. For this purpose they rely upon a series of decisions of that Court and its predecessors made in 1921, 1951 and 1953, the associated 1953 lease itself, and the mediated agreement recorded in 1959.
56. Having carefully examined those documents we are satisfied that they do not finally determine ownership and occupation rights between the parties. Certainly there are indications in the documents that predecessors of the appellants had rights in relation to two blocks of land at Solaua with areas of 600 acres and 330 acres respectively. There is also a clear definition of the land that is subject to Lease 811. The lease annexes a 1953 survey plan relating to 872 acres. But there is no decision clearly linking the two.
57. There is no decision determining the extent to which all or part of the leased 872 acres is the same land as the 930 acres which may well belong to the appellants. Nor is there yet a decision determining that it is the two current appellants who are now entitled to the benefit of the 930 acres. The latter may well be a simple matter of inheritance, or clarification of names, but that is not for us to determine.
58. There is therefore some ground to cover before the appellants would have a decision of the Lands and Titles Court which they would be entitled to enforce in the Supreme Court.
59. That is not to suggest that the Lands and Titles Court is free to ignore its own earlier decisions or those of its predecessors. The issues in those decisions have already been determined. They cannot be revisited. In technical terms, res judicata and issue estoppel apply. But the Lands and Titles Court can and must determine how those decisions now impact upon these particular parties and their right to the land described in Lease 811.

Procedural consequences

60. It will be for the appellants to decide how they wish to proceed once the necessary decisions are made in the Land and Titles Court. If the decisions are in their favour, and they then find it necessary to enforce the decisions, the procedure is to seal a copy of the Land and Titles Court decision and file it in the Supreme Court under the Land and Titles Act s 74(3). The decisions can then be enforced in the same way as any other Supreme Court judgment.
61. The appellants have also brought claims in the Supreme Court seeking damages and other remedies for a variety of causes of action. For each these causes of action the appellants will need to consider whether it is a claim relating to customary land. If it is, s 34(2)(c) will require that it to be determined in the Lands and Titles Court. If not, it will be possible to reactivate their existing proceedings in the Supreme Court. There also remains the possibility that the appellants may need to pursue the legal issue we referred to earlier, namely jurisdiction where all necessary claims and disputes relating to customary land have already been determined, after those decisions have been made in the Land and Titles Court.

62. A procedural detail is that if the proceedings are reactivated in the Supreme Court, the first appellant will need to file a statement of claim setting out and particularising his causes of action and specifying the nature of compensation and the amount of compensation or damages he is seeking. We respectfully agree with the Judge that the first appellant ought to have filed one. An application to the Supreme Court for an Art 4 remedy to enforce a Part II right under the Constitution is a civil proceeding. Under the Supreme Court (Civil Procedure) Rules 1980 every civil proceeding must be instituted by way of action or by way of motion (r 10). A proceeding for the recovery of damages or of land must be instituted by way of action (r 11). An action must be commenced by the filing of a statement of claim (r 13), which must specify the relief claimed with sufficient particularity (rr 13, 16). The Court may require the filing of fuller and more explicit statements of claim (r 16). This is not simply a technicality. It is the most efficient way of setting out the essentials of a claim and a defendant’s response to it.
63. A consequence of our decision is to require the appellants to pursue their claims in the Land and Titles Court of which the first respondent is the President. Section 27 of the Land and Titles Act allows Deputy Presidents of the Court to preside over sittings of the Court and to “exercise such other functions of the President as may in respect of a particular case or matter be directed by the President”. It would clearly be inappropriate for the first respondent to be involved, or be seen to be involved, in any petition by the appellants other than to delegate the matter to the Deputy President under s 36.

CONCLUSION

64. The appeals are dismissed.
65. The respondents as a group have appropriately been represented by one senior and one junior counsel. The appellants are each ordered to pay the respondents the sum of $4000 plus disbursements to be fixed by the Registrar. For the removal of doubt, the respondents are to receive a total of $8000 plus disbursements.

Honourable Justice Fisher

Honourable Justice Blanchard

Honourable Justice Panckhurst