Attorney General v Malifa [2017] WSCA 7 (15 September 2017)

IN THE COURT OF APPEAL OF SAMOA
Attorney General v Malifa [2017] WSCA 7

Case name:	Attorney General v Malifa
Citation:	[2017] WSCA 7
Decision date:	15 September 2017
Parties:	ATTORNEY GENERAL of Samoa appealing on behalf of the Registrar of Land and Titles Court (Appellant) and GATOAITELE SAVEA SANO MALIFA of Afega, Chief Editor for Samoa Observer (Respondent).
Hearing date(s):	12 September 2017
File number(s):	CA04/17
Jurisdiction:	CIVIL
Place of delivery:	Court of Appeal of Samoa, Mulinuu
Judge(s):	Honourable Justice Fisher Honourable Justice Panckhurst Honourable Justice Hansen
On appeal from:	Supreme Court of Samoa
Order:	The appeal is adjourned to the next sitting of the Court of Appeal with a direction that the respondent serve on the petitioners all relevant documents from both the Supreme Court and the Court of Appeal. Leave is reserved to the petitioners to appear before this Court when the appeal is next brought on for hearing. It will, of course, be for the petitioners to decide whether they wish to do so. If they do, they must give notice to the Court of Appeal and the other parties within one month of being served. They will also need to comply with the normal Court of Appeal Practice Direction as to the filing of submissions by a respondent prior to the resumed hearing.
Representation:	S Ainuu and D J Fong for Appellant Ming C. Leung Wai and A Lesa for Respondent
Catchwords:	Matai title
Words and phrases:	Land and Titles Court matter – petitions lodged in objection – additional party to appeal.
Legislation cited:	Constitution of the Independent State of Samoa Article 9(1); Declaratory Judgments Act 1988 ss. 5; 6.
Cases cited:
Summary of decision:

CA 04/17

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

IN THE MATTER: JUDICATURE ORDINANCE 1961

AND: OF THE DECLARATORY JUDGMENTS ACT 1988, LAND AND TITLES ACT 1978 AND ACT INTERPRETATION ACT 2015

BETWEEN:

ATTORNEY GENERAL of Samoa appealing on behalf of the REGISTRAR OF THE LAND AND TITLES COURT
Appellant

AND:

GATOAITELE SAVEA SANO MALIFA of Afega, Chief Editor for Samoa Observer.
Respondent

Coram: Honourable Justice Fisher
Honourable Justice Panckhurst
Honourable Justice Hansen

Counsel: S Ainuu and D J Fong for Appellant

Ming C. Leung Wai and A Lesa for Respondent

Hearing: 12 September 2017

Judgment: 15 September 2017

JUDGMENT OF THE COURT

Introduction

1. A Matai title was bestowed on the respondent. The appointment was ultimately confirmed by entry in the Register kept by the Registrar of the Land and Titles Court (“the LTC”). After the title was registered three groups of interested persons lodged petitions objecting to his appointment. In proceedings under the Declaratory Judgments Act 1988 the Supreme Court held that they were too late. It said that once the title was registered, the LTC lost the jurisdiction to hear petitions objecting to it.
2. A preliminary point is that the petitioners concerned were not made parties to the current proceedings in either the Supreme Court or this Court. For the reasons that follow we are unable to determine the matter until they have been given the opportunity to be heard.
3. The proceedings issued by the respondent in the Supreme Court named only the Attorney General (sued on behalf of the Registrar of the Land and Titles Court) as respondent in the Supreme Court. The petitioners were not made parties or served with the proceedings.
4. In response to that point in the Supreme Court the Judge said:

“The respondent also advanced the argument of a breach of the petitioners’ constitutional civil rights under Article 9 if the court rules for the Applicant as it will deny the petitioners right to be heard which is the ‘right of access to a Court’. I agree but Article 9 guarantees the right of access to a court and to a fair hearing where the person involved can demonstrate a civil right. Their Honours in Samoa Party v Attorney General at paragraph [24] said that the civil or personal right will depend on statute not constitutional law. That is, the civil right that is protected by Article 9 must come from a statute. The civil right of the petitioners to invoke Article 9 comes from Part 3, Part 4 and Part 5 (which includes section 23) of the Land and Titles Act 1981.”

5. In this Court the appellant renewed the submission that the petitioners ought to have been made parties or served. We agree.
6. That follows, both as a matter of natural justice and pursuant to Act 9(1) of the Constitution. Article 9(1) relevantly provides that “in the determination of his civil rights and obligations... every person is entitled to a fair and public hearing...”. In this case the civil right at issue is the right to have the LTC decide whether they are entitled to file petitions in the LTC and to have those petitions determined on their merits.
7. It is certainly helpful to have the Attorney General as a party to assist in the determination of the appeal. However, neither the Attorney nor the Registrar has any vested interest in the outcome. That might be contrasted with the petitioners who do have such an interest. If we were to find in favour of the respondent in this Court that would impact on the petitioners’ right to pursue any objection to the title in the LTC. That is not to predetermine the question whether the LTC has the jurisdiction to hear their petitions. But they are at least entitled to be heard on that question.
8. A further reason for giving the petitioners the right to be heard stems from the Declaratory Judgments Act. That was the sole source of jurisdiction relied on in the Supreme Court. With immaterial exceptions, the effect of s 5 of the Declaratory Judgments Act is that declarations made under that Act bind only those who had been made parties to the proceedings or who had been served. Strictly speaking the outcome of the present proceedings would not be binding on the petitioners unless they are served and given the opportunity to be heard.
9. Section 6 of the Declaratory Judgments Act gives the Supreme Court the power to direct that the proceedings be served on such persons as the Court thinks fit. Such direction may be given at the time when the motion is filed or subsequently. On appeal we are clothed with the same powers as the Supreme Court. We now exercise the power conferred by s 6.
10. The appeal is adjourned to the next sitting of the Court of Appeal with a direction that the respondent serve on the petitioners all relevant documents from both the Supreme Court and the Court of Appeal.
11. Leave is reserved to the petitioners to appear before this Court when the appeal is next brought on for hearing. It will, of course, be for the petitioners to decide whether they wish to do so. If they do, they must give notice to the Court of Appeal and the other parties within one month of being served. They will also need to comply with the normal Court of Appeal Practice Direction as to the filing of submissions by a respondent prior to the resumed hearing.
    

HONOURABLE JUSTICE FISHER
HONOURABLE JUSTICE PANCKHURST
HONOURABLE JUSTICE HANSEN