Ifi v Attorney General [2021] WSCA 9 (10 December 2021)

IN THE COURT OF APPEAL OF SAMOA
Ifi v Attorney General [2021] WSCA 9 (10 December 2021)

Case name:	Ifi v Attorney General
Citation:	[2021] WSCA 9
Decision date:	10 December 2021
Parties:	SILAUMUA IFI (Appellant) v ATTORNEY GENERAL (Respondent)
Hearing date(s):	06 December 2021
File number(s):	CA 04/20
Jurisdiction:	CIVIL
Place of delivery:	Court of Appeal of Samoa, Mulinuu
Judge(s):	Honourable Justice Blanchard Honourable Justice Harrison Honourable Justice Vaai
On appeal from:	Supreme Court of Samoa, Mulinuu
Order:	The appeal is dismissed with costs of $5,000.00 to the respondent.
Representation:	L.O Woodroffe for the Appellant D.J Fong for the Respondent
Catchwords:	Land dispute – fee simple – ownership of property – fee simple proprietor
Words and phrases:
Legislation cited:	Constitution of the Independent State of Samoa 1960 s. 101; Land Titles Investigation Act 1966, ss. 10; 15; 18; Land Titles Registration Act 2008
Cases cited:	Alii and Faipule of Siumu District v Attorney General [2010] WSSC 9; Mama v Faamasunu [1997] WSSC 24; Sia’aga v OF Nelson Properties Limited [2008] WSCA 14, CA 04 of 2008
Summary of decision:

IN THE SAMOA COURT OF APPEAL
HELD AT MULINUU

BETWEEN:

SILAUMUA IFI

Appellant

A N D:

ATTORNEY GENERAL

Respondent

Coram: Honourable Justice Vaai
Honourable Justice Blanchard
Honourable Justice Harrison

Counsel: L.O. Woodroffe for appellant
D.J. Fong for respondent

Hearing: 06 December 2021

Judgment: 10 December 2021

JUDGMENT OF THE COURT

Introduction

1. The appellant, Silaumua Ifi, claims that there is no doubt that her great grandfather, So’onanofo Atoa, was the owner of freehold land, Lots 71 and 72 on Flur VII and that his estate is therefore entitled to be registered as proprietor in fee simple in respect of that land under the Land Titles Registration Act 2008. Having failed to persuade the Registrar of Lands to “correct” the situation by issuing a fee simple title for the land, the appellant sought from the Supreme Court a declaration that the land (now Lot 71 and Lot 119/72 and Lot 120/72) is freehold land and not customary land; and that it has been freehold land since the registration of Mr Atoa “as registered proprietor of the said land by the German Administration”, together with consequential orders or compensation.
2. Tuatagaloa J struck out the claim in a judgment on 14 February 2020. The judge found that, in terms of section 15 of the Land Titles Investigation Act 1966, the land was not “undoubtedly held by [Mr Atoa] as individual property for an estate in fee simple created or confirmed by a Court Grant and that, as the matter has not yet been investigated by the Land Commission, the claim should be referred to it and the status of the land determine by it rather by than by the Supreme Court.

The Legislation

3. Section 10 of the 1966 Act says that the functions of the Commission established under that Act include inquiring into each claim made to it by any person to individual ownership of a property in any land in Samoa other than land undoubtedly held by any person as individual property for an estate in fee simple created or confirmed by a Crown Grant or a Court Grant. A “Court Grant”, which the appellant contends Mr Atoa had received, was a freehold grant by the German Administration in Samoa prior to 1920. Section 15 of the 1966 Act provides for the making of claims to the Commission for individual ownership other than for land undoubtedly held by a claimant in that manner. Section 18 requires the giving of public notice of claims, the making of any necessary surveys, a hearing at which objections can be heard, written and oral evidence and submissions and finally a determination of whether the subject land is customary, freehold or public land and whether the claim has been established to the satisfaction of the Commission. It is within the inherent jurisdiction of the Supreme Court to decide whether there is doubt as to the status of the disputed land: Mama v Faamasunu [1997] WSSC 24.
4. The case for the appellant is that under the German Administration Mr Atoa was the individual owner of a freehold under a Court Grant and that consequently his deceased estate is entitled to be registered as a fee simple proprietor under the 2008 Act. The Registrar of Lands takes the position, however, that Mr Atoa’s ownership recognised by the German Administration was only as a native owner (now a customary owner) and that the land is therefore now properly classified as customary land. (Under the German Administration land was classified as Native Land, European Land or Crown Land. These classifications correspond to the classifications of customary land, freehold land or public land as provided for in section 101 of the Constitution of the Independent State of Samoa).
5. The procedure for obtaining the European form of absolute ownership pursuant to a Court Grant and registration on the Grundbuch (land register) under the German Administration was that a person seeking such ownership would make a claim to the Land Commission established by the Final Act of the Conference on the Affairs of Samoa signed at Berlin 1989 and known as the Berlin Act. That Land Commission was to investigate land claims, and if it found a claim proved, would decide accordingly. A Court Grant would then be issued by the Supreme Court also established by the Berlin Act and the freehold owner would be registered in the Grundbuch. We did not understand this to be disputed by the appellant. We can accept that the Land Commission was certainly charged with adjudicating on land title claims by aliens but it is unclear to us whether it also looked into claims to European titles by Samoans. The provisions cited by Nelson J in Alii and Faipule of Siumu District v Attorney General [2010] WSSC 9 at [9] may suggest otherwise but we find it unnecessary to examine that question and proceed on the assumption that it could have done so.

The Supreme Court Judgment

6. Tuatagaloa J addressed three issues, the last of which was a matter she herself had raised with counsel:
   1. Was there an error in the Land Register under the Land Titles Registration Act 2008 that could be corrected by the Registrar?
   2. Was there doubt as to the status of the land so that it fell within the Land Commission’s jurisdiction? and;
   3. Did the applicant (now appellant) have legal standing to bring these proceedings?
7. The Judge prefaced her discussion of these three issues with the following statement, with which we respectfully concur:
   • “[20] It has been settled that the Supreme Court has inherent jurisdiction to determine the status of land. Once the status of the land is determined the Court will then be able to make a decision as to the forum that would best deal with the land according to law. If customary it will be the jurisdiction of Land and Titles Court, or if freehold it will be the jurisdiction of the Supreme Court; but where there is ‘doubt’ as to the status of the land the matter will be referred to the Land Commission”.
8. Dealing with the first question, of error in the register, the Judge noted that the Registrar had refused to exercise the power of correction saying that the information provided was insufficient to correct any error and/or omission on the register. In the Registrar’s opinion there was no such error or omission. There were, Tuatagaloa J said, the following facts pleaded that strongly persuaded that the land was indeed customary:
   • “(a) The name “Atoa” is a matai title of the village of Tanugamanono, the village where the disputed land is located;
   • (b) Tanugamanono is a ‘nuue’&#/i> (traditional ve) and not a ot a village created by a new settlement of people.
   • (c) The applicant, urthedence that her grer great grandfather is owner of the land land was [sic] that her great-grandfather Atoa sold Lot 70 to a William Blacklock by Deed dated 5^th June 1889. However, thhree hree things say otherwise - Firstly, the said Deed only has the name “Atoa” not “Atoa So’onanofo” the great-grandfather of the applicant; Secondly, Atoa is ne only transferor of Lot 70ot 70, there were two of them, the other name is “Semu”; thirdly, the deed was witnessed by three people, two of them are Samoan matai – Seumanutafa and Tuiletufuga.
   • (d) According to the records or the Land Register, William Blacklock on 21 October 1891 applied to the Land Commission (Land Claim No.174 - Lot 70) for the land to be freehold by which Court Grant 102 granted the land to William Blacklock in fee simple and registered in Grundbuch 378 on 6^th October 1921. If the las owas owned as ‘freehold’ by Atoa, why was there a need for William Blacklock to go through all that to have the land registered to his name as frd?
   • (e) Lots 71 & 72 remain registered as customary land according to the land records with the MNRE.
   • (f) Furthermore, the applicant says that her great-grandfather and her family have lived on this land since the 1800s; why then did her grandmother and those before her (the applicant) pursue this matter that the land is freehold not customary? As I understand, the land has been the subject of matters before the Lands and Titles Court for many years and never once until now, did the applicant claim the land to be freehold, not customary.” (at [24])
9. The Court found that there was no error in the register under the 2008 Act.
10. On the question of a doubt about the status of the land, which needed to be a real and genuine doubt, as Sapolu CJ had said in Mama v Faamasunu was required, the Judge expressed agreement with the view of the Registrar that the status of the land as customary was being challenged which placed that status in doubt. Hence it fell under the Land Commission for it to investigate the claim and determine the true status. The strike -out application therefore succeeded.
11. The judge was also of the view that, as the appellant’s application for Letters of Administration of her great grandfather’s estate had not yet being granted, she did not have legal standing to bring the proceeding.

Submissions for the appellant

12. Mrs. Woodroffe submitted that the fact that the land was entered in the German records under the name of So’onanofo Atoa, an individual, proved that under the German law it was a freehold. Samoan (native) land would not have registered in that way, but under the Alii and Faipule of the village. That the neighbouring land, Lot 70, had been transferred as a freehold from Mr Atoa to Mr Blacklock in 1889 was further evidence of that fact, as was a subsequent subdivision of Lot 72. Counsel said that customary lands are not surveyed and subdivided. What the German Administration had done was valid and should be confirmed, as had been recognised in earlier decisions, for example, Sia’aga v OF Nelson Properties Limited [2008] WSCA 14, CA04 of 2008 at [19].
13. Accordingly, it was submitted, there was “no ambiguity in the meaning of Atoa being entered in Flur VII as Eigentümer or Owner of Lots 71 and 72”. Counsel said that it was clear that he was the absolute owner. A letter from the German Embassy in Wellington had stated that Mr Atoa was the owner of the land as recorded in the Flur Index. Freehold ownership of European Land had been confirmed by section 267 of the Samoa Constitution Order 1920 and section 267 of the Samoa Act 1921. The freehold title under German law has never been extinguished. It was submitted that the Registrar of Lands has power under section 5 of the 2008 Act to correct the omission from the Torrens Register of a fee simple title for the land, and thereby could correct error by the Land and Titles Court in earlier cases brought by the appellant’s predecessors where the land had been treated, wrongly, as customary land. No further investigation is needed.
14. It was also submitted by Mrs. Woodroffe that the Judge had been wrong to say that the appellant lacked standing. She had brought this proceeding as a beneficiary of her great grandfather’s estate.

Submissions for Respondent

15. Mr Fong, in his succinct and well-presented submission for the Registrar and the Land and Titles Court, said that the Judge was right to find that there was a real and genuine doubt about the status of the land. He pointed out that, in contrast with Lot 70 (the Blacklock land) there was no Court Grant and no registration in the Grundbuch for Lots 71 and 72. He submitted that in the case of Lot 70 there had been dealings (a lease and a sale) involving Samoan matai.
16. Notations on the Flur Plan and the Flur Index were said by counsel to indicate that the land was customary land. It was in a customary village. The letter from the Embassy simply confirmed recognition of that customary ownership. There was accordingly a doubt about status and no proper basis for any corrective action by the Registrar.

Conclusions

17. Despite Mrs. Woodroffe’s vigorous advocacy, we are unpersuaded that the Judge erred in striking out the proceedings. We share her view that the appellant does not have a tenable case. On the material before her and before this Court there is clearly a doubt about the status of the land which is best resolved by the specialist tribunal, the Land Commission. It does appear that there was never a Court Grant for Lots 71 and 72 and that Mr Atoa never became registered in the Grundbuch as their freehold owner. It appears that he was recognised only as a native (now customary) owner, which may or may not had been as a matai of his village. Nor is the doubt dispelled by the plan tendered to the Court by Mrs. Woodroffe during the hearing.
18. The apparent absence of any Court Grant or registration can be seen from a perusal of the Flur Index in the Grundbuch. The Index contains no register no. or Court Grant no. for Lots 71 and 72. It calls Mr Atoa an owner, described as “indigenous”. In contrast, the Index reference for Lot 70 has both register and Court Grant nos. In evidence also is a Court Grant in the name of Mr Blacklock. None has been found for Lots 71 and 72. In view of the need for a Court Grant in order to create a freehold under the applicable German law, those differences give rise to a real and genuine doubt about whether Mr Atoa ever obtained a freehold title, notwithstanding that he may have been recognised by the German Administration as the owner of a customary title. The letter from the Embassy says no more than that he was entered as an owner in the Index. The Index is not a register.
19. It follows that the Registrar was fully justified in her refusal to embark on the exercise of correcting the register.
20. Of course it remains possible that an investigation by the Land Commission may reveal further evidence supporting the claim of freehold ownership, thus removing the doubt felt by the Registrar, the Judge and now by this Court. The Land Commission can be expected, for example, to consider the significance of the fact that a survey and subdivision of the land was done during the German Administration. All we are now saying is that on the evidence at present there is a real and genuine doubt as to status so that this present proceeding has no prospect of success.
21. We agree also with the Judge that in a case of doubt it is preferable for the matter to go before the Land Commission, the specialist tribunal, where the claim can be advertised and any interested parties will have the ability to participate in the investigation process, rather than being decided in the Supreme Court in litigation in which they are not involved. The 1966 Act is a fairer and more sensible vehicle for determining questions of the status of land. That was the job it was set up to do.
22. We understand there is an outstanding application by the appellant for Letters of Administration of Mr Atoa’s estate which, if granted, will remove the “standing” problem. It is therefore unnecessary for us to say anything about that save to observe that we would be surprised if lack of standing is a matter that would prevent the claim being put before the Land Commission.

Order

23. The appeal is dismissed with costs of $5,000.00 to the respondent.

HONOURABLE JUSTICE BLANCHARD
HONOURABLE JUSTICE HARRISON
HONOURABLE JUSTICE VAAI