Attorney General v Malifa [2018] WSCA 1 (13 April 2018)

IN THE COURT OF APPEAL OF SAMOA
Attorney General & Anor v Malifa [2018] WSCA 1

Case name:	Attorney General & Anor v Malifa
Citation:	[2018] WSCA 1
Decision date:	13 April 2018
Parties:	THE ATTORNEY GENERAL (Appellant) & PAPALIITELE LEIATAUALESA PAULI LAGOLASI FAALATAITAUA (Second Appellant) v GATOAITELE SAVEA SANO MALIFA (Respondent)
Hearing date(s):	11 April 2018
File number(s):	CA 04/17
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, Mulinuu
Order:	The appeal is allowed. The declarations made in the Supreme Court are quashed. The respondent must pay the second appellant costs in the sum of $5,000. We do not order costs in favour of the first appellant. The jurisdictional argument which formed the basis for our decision was not advanced in that form in the Supreme Court.
Representation:	S Ainuu and DJ Fong for First Appellant MV Peteru and M McFarland for Second Appellant M. Leung-Wai and A Lesa for Respondent
Catchwords:
Words and phrases:	Land and Titles Court matter – dispute over a chiefly title – petitions lodged in objection – petitions challenged appointment – jurisdiction of Lands and Title – time limits regarding petitions filed
Legislation cited:	Constitution of Samoa Articles 9 & 103. Declaratory Judgments Act 1988. Land and Titles Court Act 1981 ss. 25; 26; 27; 28; 29; 30; 31; 34; 35; 38; 42; 43; 49; 71; 92. Parts III, IV, V, VI. Supreme Court Rules rule. 67.
Cases cited:	Lavea v Kerslake [2015] WSCA 3; Malifa v President of the Land and Titles Court [2014] WSCA11; Penaia II v Land and Titles Court [2012] WSCA 6 (31 May 2012); Papalii Panoa Tavita et al v Land and Titles Court & Ors (2016) (Unreported judgment of Nelson J).
Summary of decision:

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

CA 04/17

BETWEEN:

ATTORNEY GENERAL
Appellant

AND:

PAPALIITELE LEIATAUALESA PAULI LAGOLASI FAALATAITAUA
Second Appellant

AND:

GATOAITELE SAVEA SANO MALIFA
Respondent

Court:
Honourable Justice Fisher
Honourable Justice Panckhurst
Honourable Justice Hansen

Hearing: 11 April 2018

Counsel: S Ainuu and DJ Fong for First Appellant
MV Peteru and M McFarland for Second Appellant
M. Leung-Wai and A Lesa for Respondent

Judgment: 13 April 2018

JUDGMENT OF THE COURT

Introduction

1. The respondent’s appointment as a Matai was confirmed by entry in the register of the Land and Titles Court (“LTC”). After the title had been registered three groups of interested persons lodged petitions challenging the appointment. The Supreme Court held that the petitioners were too late to object. The Registrar of the LTC appealed to this Court.
2. In an earlier judgment of 14 September 2017 we pointed out that the petitioners concerned ought to have been made parties to the proceedings in the Supreme Court. At our direction they were served with the appeal proceedings. One of the petitioner groups elected to be joined in the appeal. It is now the second appellant.
3. For reasons we will come to, our conclusion is that by virtue of s 34 of the Land and Titles Act 1981 (“the Act”) this dispute lies within the exclusive jurisdiction of the LTC. Neither the Supreme Court nor this Court is permitted to make a declaration as to the right to institute proceedings in the LTC.
4. We regret that this prevents us from offering the guidance we would like to have offered. The central issue is whether, notwithstanding the elaborate procedures and time limits for objections in Parts IV and V of the Act, objections to a title can still be lodged later under the general procedural provisions of ss 38, 42 and 43 of the Act. On that issue the LTC will need to come to its own decision and give to the arguments already traversed in the Supreme Court such weight as it thinks fit.

Factual Background

5. On 21 June 2014 the title “Gatoaitele” was bestowed on the respondent. The respondent gave notice to the Registrar who published the required notice in the Savali on 28 September 2014. The notice called for objections within three months, namely by 28 December 2014. That was confirmed in a second public notice of 28 October 2014 calling for objections by the same date.
6. The Registrar received no objections but decided that the title had not been bestowed in accordance with custom and tradition. The respondent brought proceedings in the Supreme Court to judicially review the Registrar’s decision. The issue was resolved at a Supreme Court mediation. The parties agreed to consent orders on 19 April 2016. In accordance with the consent orders the Registrar registered the respondent’s title.
7. Three petitions were later filed in the LTC objecting to the registration of the title. These petitions were lodged on 7 June 2016, 30 June 2016 and 8 August 2016, some 18 months after expiry of the original time limit for objections. In this Court counsel for the second appellant accepted that the grounds advanced in the petitions could have been advanced by way of objection had the petitioners advanced them in 2014.
8. Following the filing of the first petition the lawyer then acting for the respondent, Ms Papalii, wrote to the Registrar objecting to the LTC’s acceptance of the petition. She contended that the petition was out of time. The Attorney General’s office gave contrary advice to the Registrar. The Registrar referred the dispute to the Chief Justice, who was also the President of the LTC at that time. In a minute of 20 June 2016 the Chief Justice said:

Given the differences in legal opinion between Ms RV Papalii and the AG’s Office regarding the acceptance by the Registrar of the objection/petition of 6/6/2016 the matter should be referred to the Supreme Court for a Declaration if Ms Papalii wants to do so.

Proceedings in the Supreme Court

9. The Registrar recorded the minute of 20 June 2016 in a letter to the counsel involved. In accordance with the minute, the respondent issued the present proceedings in the Supreme Court. He sought declarations that the petitions were out of time. He also sought damages for misfeasance in public office in the belief that this was necessary for jurisdictional reasons but he later dropped that aspect. The essence of the respondent’s complaint was that the petitions were objections to his original title application and that the three month time limit imposed under s 16 of the Act had long since expired.
10. The Attorney General applied to strike out the respondent’s proceedings. He contended that the petitions had been filed pursuant to ss 38, 42 and 43 of the Act, not as objections in response to the publications in 2014. He also argued that the Supreme Court lacked the jurisdiction to make the declarations sought. However that argument was advanced only orally, and on the narrow basis that the procedural status of the petitions involved customs and usages.
11. In a thorough judgment the Supreme Court Judge summarised the Act. She drew attention to the contrast between Parts III, IV and V of the Act (customary land, intention to appoint to a Matai title, and dealing with Matai titles) on the one hand and Part VI (jurisdiction and procedure of the LTC), on the other. She concluded that ss 38, 42 and 43 were procedural only and did not add any additional right to object by way of petition. The basis for any proceedings needed to be found in Parts III, IV or V.
12. The Judge also rejected the argument that to deny the petitioners the opportunity to have petitions resolved by the LTC would be a breach of their constitutional right of access to a Court, and a fair hearing, under Art 9 of the Constitution. She considered that the civil right that is protected by Art 9 must come from a statute. For those reasons she granted the declarations sought by the respondent.

Appeal to this Court

13. The Attorney General’s original notice of appeal challenged the Supreme Court conclusions as to the status of the petition. Later, in an amended notice of appeal, the Attorney General added the ground that the Supreme Court lacked the jurisdiction to make the declarations sought.

Supreme Court jurisdiction in Lands and Titles matters

14. Section 34 of the Act 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.

15. Section 34 is reinforced by s 71 which precludes challenges to an LTC decision in any other Court. This is given constitutional force by Article 103 of the Constitution.
16. As s 34 states, the LTC’s jurisdiction is “exclusive” in the matters there listed. Because the jurisdiction is exclusive, no other Court can exercise the same jurisdiction. The subject matter of that exclusivity is listed in s 34(2). It includes “all matters relating to Samoan names and titles” (s 34(2)(a)).
17. It could not be disputed that the present case involves a “matter relating to” a Samoan title. And to make a declaration in that regard is to grant a remedy in relation to that matter. So on the plain words of s 34, one might think that neither the Supreme Court nor this Court could have the jurisdiction to consider the matter.
18. The exclusivity of the LTC’s jurisdiction has been emphasised repeatedly by the courts.^[1] There are special exceptions for enforcement, civil claims not reliant on customary land or titles, breaches of the Constitution and, arguably, civil consequences once land and title disputes have been resolved.^[2] But none of those possibilities is obviously applicable in this case.
19. As to the Constitution, we agree with the Supreme Court Judge that Article 9 guarantees a hearing only where the rights and liabilities on which the claimant relies can be derived from some source other than Art 9 itself. The rights and liabilities could be found in a statute, in customary law, the common law, or some other part of the Constitution. In this case the question whether the petitioners had the right to a hearing stems from the Act, if it exists at all. Consequently, resort to the Constitution does not add anything to the need to interpret the Act. If the object of the inquiry is to determine a “matter relating to” a Samoan title, the exclusive jurisdiction conferred by s 34 applies.
20. Nor could it be suggested that the making of a declaration under the Declaratory Judgments Act 1988 is an exception to the exclusive jurisdiction of the LTC. To make a declaration as to a matter within the exclusive jurisdiction of the LTC is to exercise jurisdiction in “matters relating to Samoan names and titles” (s 34(2)(a)). That point is reinforced by s 34(2)(b) which gives the LTC exclusive jurisdiction “to make orders or declarations in respect of Samoan names and titles” (emphasis added).
21. Mr Leung Wai advanced two ingenious arguments to overcome the jurisdiction problem. One was the argument that in this case the title dispute had already been resolved and that this left the Supreme Court free to pronounce upon the status of the subsequent petitions. However one cannot escape the conclusion that the status of the petitions was still a “matter relating to” a Samoan title even if it came after the event. It was not something so independent of a Samoan title that it could be treated as a subsequent dispute of a different kind altogether. It still fell within the wording of s 34(2)(a).
22. Mr Leung Wai’s other argument was that the LTC was exercising its own jurisdiction when it remitted the dispute to the Supreme Court to obtain declarations. In that regard he pointed out that s 25 of the Act gives the LTC the status of a Court of record with all the powers inherent in such a Court. He submitted that the inherent powers included the power to remit a legal issue to be determined by declaration in the Supreme Court and that in his minute of 20 June 2016 the Chief Justice was exercising that power on behalf of the LTC. He also referred to s 47(3) which adopts the rules of the Supreme Court as to practice and procedure “unless inconsistent with or inapplicable to the provisions of this Act.” Rule 67 of the Supreme Court Rules authorises a Judge to give such directions as he thinks proper.
23. There are difficulties in that argument. A preliminary one is that it is very doubtful whether the Chief Justice was purporting to convey an order of the LTC when he issued his minute of 20 June 2016. There does not appear to have been a quorum for the purposes of s 35. Nor could it be regarded as an interim order in terms of s 49. To constitute a “court” of the Lands and Titles Court there must be a quorum involving other judges except where the Act provides otherwise. Rule 67 of the Supreme Court Rules does not assist. A Supreme Court Judge acting alone constitutes the required quorum in that Court. That may be contrasted with the LTC. It would be inconsistent with the Act to adopt the Supreme Court rule in that regard.
24. More importantly, however, inherent powers are subject to the express provisions of the statute. A tribunal to which Parliament has expressly entrusted disputes of a particular kind cannot delegate all or part of that jurisdiction to an entirely different tribunal in the absence of express authority to do so. The exclusivity of the jurisdiction conferred by s 34, coupled with the privative provision in s 72, makes it clear beyond doubt that Parliament did not want the Supreme Court to become involved in disputes over Samoan names and titles.
25. It is with considerable reluctance that we conclude that neither the Supreme Court nor this Court is permitted to assist on this issue. We sympathise with the Chief Justice’s view that it would have been helpful to have the assistance of courts of general jurisdiction on an issue of this kind. The issue did not involve Samoan customs or usages. It turned on Parliament’s intention as revealed in a statute it had enacted. A close examination of the statute is required before the Parliamentary intention emerges. Interpreting statutes is normally the job of lawyers. With immaterial exceptions, lawyers are excluded from LTC hearings (s 92) and with the exception of the President, Judges of the LTC do not normally have legal qualifications (ss 26 to 31).
26. However those considerations cannot change the words used in s 34. The issue taken to the Supreme Court must now be determined by the LTC. That Court will doubtless give the arguments traversed in the Supreme Court such weight as it thinks fit.

Result

27. The appeal is allowed. The declarations made in the Supreme Court are quashed.
28. The respondent must pay the second appellant costs in the sum of $5,000. We do not order costs in favour of the first appellant. The jurisdictional argument which formed the basis for our decision was not advanced in that form in the Supreme Court.
    

HONOURABLE JUSTICE FISHER
HONOURABLE JUSTICE PANCKHURST
HONOURABLE JUSTICE HANSEN

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^[1]Penaia 11 v Land and Titles Court [2012] WSCA 6 (31 May 2012); Malifa v President of the Land and Titles Court [2014] WSCA11; Papalii Panoa Tavita et al v Land and Titles Court & Ors (2016) (Unreported judgment of Nelson J).
^[2] Lavea v Kerslake [2015] WSCA 3.