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Ropati v Attorney General [2023] WSCA 2 (18 July 2023)

IN THE COURT OF APPEAL OF SAMOA
Ropati v Attorney General [2023] WSCA 2 (18 July 2023)


Case name:
Ropati v Attorney General


Citation:


Decision date:
18 July 2023


Parties:
LETUFUGA ATTILA MANUTOIPULE ROPATI (Appellant) v THE ATTORNEY GENERAL, sued on behalf of the Honourable FIAME NAOMI MATAAFA, the Prime Minister (Respondent).


Hearing date(s):
11 July 2023


File number(s):
CA11/22


Jurisdiction:
CIVIL


Place of delivery:
Court of Appeal of Samoa, Mulinuu


Judge(s):
Honourable Justice Harrison
Honourable Justice Asher
Honourable Justice Young


On appeal from:
Supreme Court of Samoa, Mulinuu


Order:
We make the following orders:
(a) The appeal is allowed to the extent that we make an interim declaration that the appellant be paid a lump sum equivalent to salary and allowances for nine months, with leave reserved to him to apply to the Supreme Court for declarations as to additional payment should the substantive litigation not be resolved within three months.
(b) As a precondition of payment, the appellant must undertake to the Supreme Court to abide by any order that Court may think fit to make as to repayment following determination of the substantive proceedings.
(c) The respondent is to pay the appellant costs of WST$5,000.


Representation:
S. Ainuu & M. Lemisio for the Appellant
H. Wallwork-Lamb & DJ Fong for the Respondent


Catchwords:
Land and Titles Court – “appointment revoked” – “President of the Land and Titles Court”


Words and phrases:


Legislation cited:
Constitution of the Independent State of Samoa;
Constitutional Amendment Act 2020;
Declaratory Judgments Act 1988;
Judicature Act 1908 (NZ);
Judicature Act 2020;
Land and Titles Act 1981;
Land and Titles Act 2020.


Cases cited:
President of the Land and Titles Court v The Attorney General [2022] WSSC 8;
Ropati v Attorney General [2022] WSSC 76;
Siemer v Heron [2011] NZSC 133; [2012] 1 NZLR 309.


Summary of decision:

CA 11/22


IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU


IN THE MATTER OF:


Section 11 and 14 and 26 of the Judicature Act 2020, and the Declaratory Judgments Act 1988 and the inherent jurisdiction of the Supreme Court.


BETWEEN:


LETUFUGA ATTILA MANUTOIPULE ROPATI


Appellant


A N D:


THE ATTORNEY GENERAL, sued on behalf of the Honourable FIAME NAOMI MATAAFA, the Prime Minister


Respondent


Coram: Honourable Justice Harrison
Honourable Justice Asher
Honourable Justice Young


Hearing: 11 July 2023


Counsel: S. Ainuu & M. Lemisio for the Appellant
H. Wallwork-Lamb & DJ Fong for the Respondent


Judgment: 17 July 2023


JUDGMENT OF THE COURT

The appeal

  1. This appeal from a judgment of the Chief Justice of 31 October 2022[1] refusing an interlocutory application for an interim declaration touches on extremely difficult and serious issues as to the Land and Titles Court. These include whether the current President of that Court is the appellant or another person. They arise out of constitutional changes in relation to the Land and Titles Court effected by the Constitutional Amendment Act 2020 (CAA 2020) and the Land and Titles Act 2020 (LTA 2020).
  2. Prior to the CAA 2020 and LTA 2020 coming into effect in early 2021, the appellant was President of the Land and Titles Court as then constituted under the Land and Titles Act 1981 (LTA 1981). What in a real sense was a “new” Land and Titles Court was created by the CAA and LTA 2020. For ease of discussion, we will sometimes refer to it as “the new” Land and Titles Court” or just “new Court and, in this way, distinguish it from the Land and Titles Court as it was under the LTA 1981 (“the old” Court). But, although the new Land and Titles Court differs significantly from the old Court, it is plainly its successor. As well, under the CAA 2020 and LTA 2020, there are significant continuities between the old and new Land and Titles Courts. In issue between the parties is whether these continuities extend to the appellant transitioning from the President of the old Land and Titles Court to the corresponding role in the new Land and Titles Court.
  3. As we noted, the issues raised are serious. This is not only given the significance of the Land and Titles system in Samoa but also because they touch on the tenure of a senior judge and thus independence of the judiciary. They are difficult for two mains reasons: first a lack of clarity in the language of the CCA and LTA 2020; and secondly procedural complexities as to whether the 14 April 2022 judgment of the Supreme Court in President of the Land Titles Court v The Attorney-General (the April 2022 judgment)[2] precludes the current claim by the appellant.
  4. This being an appeal against an interlocutory judgment, we are not in a position to determine substantively the issues in the current litigation. What we can do, however, is provide something of a road map for their ultimate resolution and also deal with what should happen between now and that ultimate resolution.

Background

The Land and Titles Court prior to 2020 constitutional amendments and legislation

  1. The following brief history is largely taken from the judgment of the Supreme Court in the April 2022 judgment.
  2. The precursor to the Land and Titles Court was the Native Land and Titles Commission established pursuant to the Native Land and Titles Protection Ordinance 1934. This was a court of record consisting of a President, being the Chief Judge of the then High Court, Assessors and Samoan Commissioners. It had exclusive jurisdiction over Samoan names, titles, customs and native lands. This institution was renamed the Land and Titles Court in 1951. The Land and Titles Court was referred to in article 103 of the Constitution this way:
  3. The LTA 1981, the statute under which the appellant was appointed as President, provided that

This Act provided for the appointment not only of a President but also Samoan judges and assessors.

  1. Importantly, the LTA 1981 was amended by the insertion of s 26D which provided that the President could be removed in the same manner as provided for a Judge of the Supreme Court under Article 68 of the Constitution. This provided:

In contradistinction, Samoan judges were able to be removed for inability or misbehaviour by the Head of State acting on the advice of the Judicial Services Commission.

The Constitutional Amendment Act 2020 and the Land and Titles Court Act 2020

  1. The CAA 2020 and LTA 2020 came into effect in early 2021.
  2. The CAA 2020 inserted Articles 104 and 104A-104G of the Constitution.
  3. Article 104(1) of the Constitution as inserted by the CAA 2020 provides:
  4. Article 104A(1), (2) and (3) provides:
  5. Section 104B relevantly provides:
  6. Article 104C deals with the Land and Titles Court of Appeal:
  7. Article 104D(1) provides

Article 104D(3) provides:

The President shall not be removed from office unless it is done by the Head of State on a request by the Legislative Assembly approved by members no less than two thirds of the total number of members of Parliament (inclusive of vacant seats) that request his or her removal from office for reasons of unbecoming conduct that has been raised or physical or mental disability or as stated in the Act.
  1. The constitutional provisions must be read with the corresponding provisions in the LTA 2020. The long title of this Act is:
  2. Section 2 defines “Court” as meaning:
  3. Consistently with the definition, the LTA 2020 provides separately for proceedings in the Land and Titles First Court, the Land and Titles High Court and the Land and Titles Court of Appeal and Review.
  4. “President” is defined as meaning:
  5. Also relevant, and highly so to the present litigation is section 67. This appears in Part 8 of the LTA 2020 and provides:

We have emphasised the critical parts of s 67 to which we will later return, namely s 67(2), (3), (4) and (6).

  1. The LTA 2020, as enacted, was incomplete in that there was no definition of judge and no direct provision as to appointments.

Issues as to the statutory text of the CCA and the LTA 2020

  1. Issues arose as to the authenticity of some versions of the CCCA and the LTA 2020. These have now been resolved, as we will explain shortly. We were told that they did not relate to the provisions in issue in these proceedings.

The first round of litigation

  1. It seems to have been initially assumed that the appellant and the other judges of the old Land and Titles Court appointed under the LTA 1981 continued in office under the LTA 2020. We were told that concerns as to whether this was so first arose in late 2021 in relation to proposed appointments to the new Land and Titles Court. Advice was sought as to these concerns which, when received, was to the effect that the appointment of the appellant and other judges had been revoked by s 67(6) of the LTA 2020. This resulted the Minister writing to the Registrar of the Land and Titles Court on 21 February 2022. In this letter, the Minister said:
  2. This letter resulted in correspondence between the Minister and the appellant and later between the Prime Minister and the appellant.
  3. The Prime Minister having made it clear that her government’s position was that the appellant was not the President of the Land and Titles Court provided for under the CCA and LTA 2020, the appellant issued proceedings seeking declarations that the Ministry was required to provide continuing provision of administrative services to the judges of the Land and Titles Court (by which he meant those appointed under the LTA 1981). As will be apparent, the primary issue in the proceedings was the provision of administrative services to all judges and not just the position of the appellant.
  4. These proceedings were heard in March 2022 before the Chief Justice and Nelson and Tuatagaloa JJ. The result they arrived at was that:

Corrected versions of the CAA and LTA 2020

  1. With authenticity issues as to the text of the CAA and LTA 2020 having been fully in investigated, in August 2022, Parliament resolved that the CCA and LTA 2020 be “de-assented”. Correct versions of what had been approved in Parliament were re-assented by the Head of Sate on 14 October 2022.
  2. This process of correcting assent versions of the CCA and LTA 2020 did not involve any review of s 67(7) of the LTA 2020. This is unremarkable, as the purpose of the review was only to ensure that assented versions of the CCA and LTA 2020 corresponded to what had been approved by Parliament.
  3. As part of the same process, Parliamentary consideration was given to the issues raised in the first round of litigation. This resulted in amendments to the LTA 2020 that provided for the Samoan judges of the old Land and Titles Court to transition to be judges to the new Land and Titles Court but not the President.

The current litigation in the Supreme Court

  1. In October 2022, the Prime Minister wrote to the appellant saying that she intended to remove him as President of the Land and Titles Court. Given the context, and indeed the references in the letter to s 67(6) of the LTA 2020, the letter may be best construed not so much as a purported removal but rather as a contention that the effect of s 67(7) is that his appointment was revoked. However:

Around the same time, the appointment was announced of another person as President of the Land and Titles Court, with the appointee to be sworn in in the first week of November 2022.

  1. In the present proceedings which he commenced against the Attorney-General on behalf of the Prime Minister, the appellant sought declaratory orders as to his continuing status as President of the Land and Titles Court. And more relevantly for the purpose of this appeal, he sought an interim declaration as to his status, that is, as President of the Land and Titles Court and that he continue to receive his salary, benefits and allowances until the substantive determination of his claim.
  2. In the judgment under appeal, delivered under constraints of urgency and without the benefit of full argument, the Chief Justice approached the application on the basis that there is jurisdiction to grant an interim declaration against the government but that such a declaration should be granted only if it is reasonably necessary to preserve the position of the applicant. In determining this, he addressed whether there was a serious issue to be tried and also the balance of convenience, a general approach that corresponds to that adopted in respect of interim injunctions.
  3. The Chief Justice accepted that there was a serious issue to be tried:
  4. In assessing the balance of convenience, the Chief Justice recognised that it is difficult to see how an award of damages could “ever compensate the harm which would be caused to the independence of a person holding the office of President of the Land and Titles Court”. But having said that, he concluded that the balance of convenience was against the appellant. He explained this conclusion in the following way:
  5. The Chief Justice did not separately address whether an interim declaration should be made as to continuance of the appellant’s salary, benefits and allowances. The transcript of the hearing indicates that counsel for the appellant did seek an interim declaration as to this as an alternative to an interim declaration that the appellant is the President of the Land and Titles Court. In her argument before the Chief Justice, the Attorney-General focused primarily on the interim declaration as to status, taking the point that the Prime Minister (on whose behalf the Attorney-General was sued) is not responsible for payments of salary.

Subsequent events

  1. As from 1 November 2022, the appellant has not been permitted to carry out judicial functions, including in relation to those contemplated by s 66(2) and (4) of the LTA 2020 and has not received salary, allowances and benefits.
  2. A new President of the Land and Titles Court was sworn in on 2 November 2022 and in December the LTA 2020 was amended to insert:

Issues

  1. There is a preliminary issue whether this Court has jurisdiction to hear an appeal from an interlocutory rather than a final judgment of the Supreme Court. If there is jurisdiction, we must address:

We will discuss the appeal by reference to headings that broadly correspond to our description of the issues.

  1. Some brief argument was addressed to us as to the proper test to be applied where interim declarations are sought against the government or government officials or agencies; in particular whether the interim injunction-based approach of the Chief Justice was correct. These arguments turn on some fine points which we do not see as being particularly material to the outcome of the appeal; this given the very particular issues it raises.

Jurisdiction

  1. Under Art 75 of the Constitution, this Court has power to hear:

The concluding words, “under an Act” are of uncertain application, it not being clear whether they refer to “all appeals” or, alternatively the jurisdiction of the Supreme Court. If the former is correct, it would restrict the relevant jurisdiction of this Court to whatever is independently conferred by Act of Parliament.

  1. Section 11 of the Judicature Act 2020 provides generally for appeals in relation to “any action, cause or matter, not being a criminal proceeding” in the Supreme Court. It does not expressly provide, one way or the other, whether this extends to a right of appeal in relation to interlocutory decisions.
  2. Section 22 provides for special leave to appeal to be given by the Court of Appeal “at any time” from “any final judgment of the Supreme Court”.
  3. Section 9 of the Declaratory Judgments Act 1988 provides:
  4. We were told from the bar that there is apparently no authority of this Court as to whether it has jurisdiction to hear appeals against interlocutory judgments.
  5. The language of art 75 of the Constitution is similar to the text of s 66 of the Judicature Act 1908 (NZ) that was in issue in the Supreme Court judgment, Siemer v Heron [2011] NZSC 133; [2012] 1 NZLR 309. That section provided:
  6. In Siemer v Heron the Court concluded that s 66 conferred a right of appeal in respect of interlocutory decisions of the High Court given in the context of appeals from the District Court to the High Court; this despite appeals from final judgments on the High Court on such appeals only being able to be challenged in Court of Appeal with leave. This judgment provides strong support for the view that the use of same language “any judgment, decree, or order” in art 75 of the Constitution should be construed in the same way that is as allowing for interlocutory appeals.
  7. We accept that there are perhaps some faint indications that might point the other way: in art 75 (the final words “under an Act”), the Judicature Act (the limitation of the s 22 procedure to final judgments) and the Declaratory Judgments Act (its perhaps implicit assumption that the general right to appeal to the Supreme Court applies only in relation to final judgments). The reality, however, is that the persuasive and policy considerations associated with these indications are far less substantial than those that were rejected in Siemer v Heron – around the paradox of allowing appeals as of right in relation to interlocutory judgments of the High Court on appeal from District Court decisions when appeals from final judgments of the High Court on such appeals required leave.
  8. We hold that this Court does have jurisdiction to hear appeals from interlocutory judgments of the Supreme Court.

Res judicata

  1. The res judicata argument is, on the face of it, substantial. This is because:
  2. In the proceedings that resulted in the April 2022 judgment, the Supreme Court was facing something of a crisis in relation to the work of the Land and Titles Court which, on one view of the legislation, could not continue pending appointment of a new President and judges. There was a need for a “here and now” solution. As well, the immediate focus of the litigation was on the provision of administrative services. So, there may be scope for argument whether the Court is to be taken to have rejected the appellant’s clam to be President of the new Land and Titles Court. There similarly may be scope for argument as to the significance of him not appealing.
  3. Arising out of these factors, and perhaps others, there may be scope for the appellant to resist the application res judicata to this case. Conceivably too he may seek special leave to appeal out of time against the April 2022 judgment, albeit that this would involve consideration of the steps that have been taken in reliance on the April 2022 judgment.
  4. In light of the limited argument that we heard on this aspect of the case, we are not in a position to determine conclusively, one way of the other, whether the appellant’s substantive claim to be President of the new Land and Titles Court is precluded by res judicata. Whether res judicata is an answer to the appellant’s claim that he is the President of the new Land and Titles Court will have to be determined in the substantive proceedings in the Supreme Court.

A serious arguable case?

  1. Since the appellant was not appointed under s 104D of the Constitution (that is by the Head of State, on the advice of the Prime Minister), acting under Part IX of the Constitution, his entitlement to the protection of that section must rest on the premise that the effect of the CAA and LTA 2020 (construed both together and in accordance with all relevant principles of law) is that he became the President of the new Land and Titles Court.
  2. Under the Constitution as it was prior to the CCA and LTA 2020, the appellant’s tenure was guaranteed not by the Constitution itself, but rather by s 26D of the LTA 1981, albeit that this was in a way that borrowed from the Constitution.
  3. It follows from what we have said that legislation that, on its true interpretation, removed the appellant from office, would not be unconstitutional. This, however, leaves for determination whether the combined effect of the CAA and LTA 2020 is that the appellant lost his position as President of the Land and Titles Court.
  4. The role of President of the new Land and Titles Court corresponds broadly to that of the President of the old Land and Titles Court. Likewise, the role of judge of the new Land and Titles Court corresponds broadly to that of “Samoan judge” of the old Land and Titles Court. In contradistinction, one role provided for in relation to the old Land Titles Court that was not carried through to the new Land and Titles Court is that of assessor.
  5. Against that background, it is possible to construe s 66 of the LTA 2020 so as to provide that the appellant became President of the new Land and Titles Court. This might involve reliance on arguments along the following lines:
  6. There are countervailing arguments. The Constitution and LTA 2020 both make it clear that the President of the new Land and Titles Court is to be appointed under Part IX of the Constitution and the appellant has not been so appointed. It is arguable that this implies that there was to be a new start for the new Land and Titles Court. If so, it is arguable that that what may be seen as implications in s 67 of the LTA 2020 should not be taken to depart from that position. In any event, it is well arguable that the word “appointments” in s 67(3) and “title” and “right” in s 67(4) do not, particularly in the context of those two subsections, naturally refer to judicial office. The point would be that 67(3) is directed solely at preserving the validity of all formal manifestations of the substantive decisions of the old Lands and Titles Act. Similar considerations apply to the corresponding argument under s 67(4). As well, some of the arguments outlined in the preceding paragraph might be thought to be a little stronger in relation to the transition of Samoan judges of the old Land and Titles Court to the new Land and Titles Court than in respect of the role of President.
  7. For the reasons we have given, we consider that appellant has a serious arguable case that he became President of the new Land and Titles Court, or as the Chief Justice put it, there is a serious issue to be tried in that respect. It will be recalled that the Chief Justice also considered that there was a serious issue to be tried as to whether the appellant could be dismissed from the performance of his transitional functions as envisaged in the April 2022 judgment. We will revert to this point in the next section of this judgment.

What interim order, if any, is appropriate in the current circumstances?

  1. It is right to recognise that the appellant is in an awkward situation. He is no longer being paid. There are practical limitations on what else he can do financially. He presumably does not wish to take any action that might be taken to be an acceptance that he is not the President of the Land and Titles Court.
  2. It is also right to recognise that the resolution of the proceedings will not necessarily involve a binary decision between conclusions that (a) the appellant is the President of the Land and Titles Court (with whatever that entails in relation to the validity of the appointment last year of a new President); or (b) he has been effectively removed completely from office. On the approach taken by the Supreme Court in the April 2022 decision he (along with the Samoan Judges of the old Land and Titles Court ) was entitled to continue to work pursuant to s 66(2) and (4) of the LTA 2020. While the practical need for this “filling the gaps” approach has now dissipated with the regularisation of the transition to the new Court of the Samoan judges and the appointment of a new President, it is not clear to us, at least as presently advised, why the changes just referred to affected whatever legal rights the appellant had under the April 2022 judgment. Although it may turn out that res judicata principles preclude a claim by the appellant to be President of the new Land and Titles Court, they will presumably he held to run both ways. So, if the res judicata argument prevails against his claim to be President of the new Land and Titles Court, he may well be held to have rights under the April 2022 judgment that are also protected by res judicata and may have been breached. On this basis, we left with the view that the validity of the appellant’s “removal” in October last year from the transitional role recognised in the April 2022 judgment may be questionable.
  3. Finally as to this, we confess to some discomfort at the notion that a senior judge can be removed from office in the way contended for, both generally, and particularly without compensation.
  4. Given the appointment of another person as President of the new Land and Titles Court, the appellant did not pursue his application for an interim declaration that he remains in office. That, however, leaves the issue of payment of salary and allowances, an issue not explicitly addressed by the Chief Justice. This may have been because of the “wrong defendant” submission by the Attorney General (see [35], above). We do not see that submission as persuasive, particularly in a context where only an interim declaration is sought. In those circumstances, we think it appropriate to grant the appellant interim relief in the alternative form sought by counsel for the appellant. In the first instance, this will be in the form of an interim declaration that he should be paid a lump sum representing salary and allowances for nine months. To cover contingencies as to how long it will take to have the case heard, we reserve leave for him to apply for further relief.
  5. Adapting the practice in relation to interim injunctions, we order that the appellant must, as a precondition of payment, undertake to the Supreme Court to abide by any order that Court may think fit to make as to repayment following determination of the substantive proceedings.

Some final comments

  1. The current position is a result of ill-drafted constitutional and legislative provisions that did not address whether the President and Samoan judges of the old Land and Titles Court should automatically take over the corresponding roles in the new Land and Titles Court. This was such an obvious issue that it should have been addressed squarely and explicitly at the time. The failure to do so has brought about the present imbroglio in which (a) two different people have arguable claims to be President of the new Land and Titles Court and (b) there is potential for what we think would be a messy situation should the appellant be held to be able to exercise the rights apparently conferred on him under the April 2022 judgment.
  2. We have identified what we see as the key legal issues – that is res judicata and the interpretation of s 67 of the LTA 2022 and some of the associated arguments (although we accept that there may also be other relevant arguments). As will be apparent, we are uncertain as to what the ultimate outcome will be. One of our major concerns is that the incoherence of the relevant provisions of the CAA and the LTA 2020 may dictate an incoherent outcome. For instance a conclusion that the appellant can continue to work on the transitional basis along the lines the April 2022 judgment, would, we think, be likely to be awkward to implement on a long term basis.
  3. While the legal issues involved are important and involve principles of high importance (including judicial independence and tenure) the complexities of the current situation and unsatisfactory nature of some of the possible outcomes mean that a practical negotiated solution is likely to produce the best ultimate result.

Orders

  1. We make the following orders:

HONOURABLE JUSTICE HARRISON
HONOURABLE JUSTICE ASHER
HONOURABLE JUSTICE YOUNG

[1] Ropati v Attorney-General [2022] WSSC 76.
[2] President of the Land Titles Court v The Attorney-General [2022] WSSC 8

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