Tevaseu v Attorney General of Western Samoa [1992] WSSC 12; CP 136-92 (2 November 1992)

IN THE SUPREME COURT OF WESTERN SAMOA

CP 136/92

IN THE MATTER of an application by TUPUOLA TEVASEU
of Saaga, Siumu for a declaratory judgment in respect of the true construction of Section 56 of the Samoan Lands and Titles Protection Ordinance 1935 affecting the decision in the Lands and Titles Court L.C. 2513 of 26th September 1962

AND

THE ATTORNEY GENERAL OF WESTERN SAMOA
for and on behalf of the Registrar of Lands and Titles Court, Mulinuu
FIRST RESPONDENT

AND

LIO IOSEFA
of Siumu, a Samoan Matai
SECOND RESPONDENT

AND

LIO TUSIOFO
for and on behalf of the late Lio Tupu of Siumu, a Samoan Matai
THIRD RESPONDENT

Counsel: Kamu for Applicant Tupuola Tevaseu
Edwards for First Respondent
Second and Third Respondents not represented

Judgment: 2 November 1992

JUDGMENT OF SAPOLU, CJ.

In 1962 the Lands and Titles Court by a decision entitled LC 2513 of 26 September 1962 granted to the title Lila of Siumu protective pule of the land called “Avasuifua” in the village of Saaga, Siumu. One of the terms of that decision provides:-

"The land in dispute is under the protective pule of the title Lio and subject to the exercise of this pule the sub-village of Saaga may continue in their present occupation of the said land and the erection of the house proposed for the pastor thereon may proceed".

It is not mentioned in the motion for declaratory judgment in this case whether there was an application for a rehearing of the said decision of 26 September 1962 pursuant to section 60 of the Land and Titles Protection Ordinance 1934 which Ordinance has been repealed and replaced by the Land and Titles Act 1980. Since 1962, the Lands and Titles Court has made decisions entitled LC 3561 of 30 August 1971 and LC 5841 of 7 December 1977 and LC 2153 of 12 March 1987 based on the decision of LC 2153 of 26 September 1962. It is not clear whether there were any applications for rehearing of the aforesaid decisions of 30 August 1971 and 7 December 1977 pursuant to section 60 of the Samoan Land and Titles Protection Ordinance 1934. It is also not clear whether there was an appeal filed against the aforesaid decision of 12 March 1987 under the appeal provisions of the Land and Titles Act 1980. What is clear, however, is that the decision in LC 2513 of 26 September 1962 was not sealed with the Seal of the Lands and Titles Court.

A dispute arose between the holder of the title Lio of Siumu and some members of the sub-village of Saaga, Siumu and the petition in relation to that dispute was set down for hearing on 29 April 1992 before the Lands and Titles Court. On 21 April 1992, the present applicant wrote to the then President of the Lands and Titles Court explaining the difficulties his village was facing because of the aforesaid decision in LC 2153 of 26 September 1962. In the reply by the then President of Lands and Titles Court, he says that the validity of the decision of 26 September 1962 may be open to question as that decision was not drawn up under the seal of the Lands and Titles Court as required by section 56 of the Samoan Land and Titles Protection Ordinance 1934. The reply goes on to say that if any person wishes to take up the point further then an application for a declaratory judgment may be made to the Supreme Court. As a result of the said reply from the then President of the Lands and Titles Court, the present applicant filed a motion for a declaratory judgment against the said decision of 26 September 1962. Only the first respondent, the Attorney-General is represented in this case. The second and third respondents who are the holders of the title Lila of Siumu are not represented.

The motion seeking a declaratory judgment is as follows:

(1) That on the true construction of section 56 of the Samoan Land and Titles Protection Ordinance 134 (now repealed and replaced by the Lands and Titles Act 1980) the final decision of the Lands and Titles in LC 2513 given on the 26th day of September 1962 should have been sealed with the seal of that Court to give it validity.

(2) That subsequently the absence of the seal of the Lands and Titles Court on the aforesaid decision in effect makes that final decision a nullity and therefore must be set aside.

Section 56 of the Samoan Land and Titles Protection Ordinance 1934 provides:

"The final decision of the Court on a petition filed shall be drawn up under the Seal of the Court and the hand of the President and such of the Assessors and Samoan Judges as concur therein and shall be in the form numbered 5 in the First Schedule hereto".

The motion is clearly directed to the absence of a seal affixed to the Court's decision of 26 September 1962 and there is no complaint directed towards non-compliance with the other requirements of the 1934 Ordinance.

It is also apparent that if the present motion is granted it will necessarily affect the subsequent decisions of the Lands and Titles Court based on the decision of 26 September 1962.

The essence of the argument by counsel for the applicant is that section 56 of the Samoan Land and Titles Protection Ordinance 1934 is expressed in mandatory terms and the affixation of the seal of the Court to the decision of 25 September 1962 is a mandatory requirement. Non-compliance with that requirement makes the aforesaid decision a nullity. Counsel referred to the use of the word 'shall' in section 56 as indicative of the intention of the provision that its requirement as to the affixation of the seal to every decision of the Court is mandatory and therefore must be strictly adhered to. Counsel for the first respondent, the Attorney-General, argued that the affixation of the seal to a decision of the Lands and Titles Court is only a ministerial act. The decision of 26 September 1962 is still effective without a seal but it is not enforceable until the seal is affixed to the decision.

I do appreciate the force of the argument by counsel for the applicant and I am of the view that the real question in this case is whether section 56 as it relates to the seal is mandatory or merely directory. If the requirement for the affixation of the seal to the Court's decision of 26 September 1962 is mandatory then clearly non-compliance with that requirement would make the aforesaid decision null and void. If the requirement for a seal is merely directory then non-compliance with that requirement does not lead to the decision being a nullity. The mandatory or directory dichotomy was put in this way by the High Court of Australia in Clayton v Heffron [1960] HCA 92; [1960] 105 CLR 214 at 247:

"Lawyers speak of statutory provisions as imperative when any want of strict compliance with them means that the resulting act, he it a statute, a contract or what you will, is null and void. They speak of them as directory when they mean that although they are legal requirements which it is unlawful to disregard, yet failure to fulfil them does not mean that the resulting act is wholly ineffective, is null and void".

This passage even though it uses the word imperative explains the mandatory or directory dichotomy and the consequences which follow when a statutory provision is held to be mandatory or merely directory. The idea was phrased in this way by Lord Penzance in Howard v Bodington [1877] UKLawRpPro 14; [1877] 2 PD 203 at 210, 211:

"The real question in all these cases is this:

A thing has been ordered by the legislature to be done. What is the consequence if it is not done? In the case of statutes that are said to be imperative, the Courts have decided that if it is not done the whole thing fails, and the proceedings that follow upon it are all void. On the other hand, when the Courts hold a provision to be directory, they say that, although such provision may not have been complied with, the subsequent proceedings do not fail. Still whatever the language, the idea is a perfectly distinct one. There may be many provisions in Acts of Parliament which, although they are not strictly obeyed, yet do not appear to the Court to be of that material importance to the subject-matter to which they refer, as that the legislature could have intended that the non-observance to them should be followed by a total failure of the whole proceedings. On the other hand, there are some provisions in respect of which the Court would take an opposite view, and would feel that they are matters which must be strictly obeyed, otherwise the whole proceedings that subsequently follow must come to an end".

Lord Penzance then went on to state the approach to be taken when construing a statute in order to ascertain whether a provision of the statute is imperative or merely directory and he said:

"I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look at the subject matter; consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory".

It must also be pointed out that the mere use of the word 'shall' or 'may' in a statutory provision even though it offers a useful guide whether the requirements of a statutory provision is mandatory or directory, it is not conclusive on the question whether the provision is in fact mandatory or directory as to its requirements: see for instance Re Davis [1947] HCA 53; [1947] 75 CLR 409 and Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12; [1971] 127 CLR 106. Having said that, I do realise that cases relating to other statutes and their construction are of little assistance to the construction of a provision in another statute. One must focus on the provisions at the statute that calls for interpretation in each case as well as the scope and object of that statute. Applying these authorities to section 56 of the Samoan Land and Titles Protection Ordinance 1934, the general objects of that Ordinance were to establish a Court to deal with matters, including disputes, relating to customary lands and matai titles. The Ordinance was also aimed at the protection of customary lands and matai titles. Part VII of the Ordinance sets up the Lands and Titles Court and makes provision for the constitution and jurisdiction of the Court, the practice and procedures relating to proceedings before the Court, decisions of the Court and the appointment and functions of the Registrar and Deputy Registrars. More particularly section 35 provides for a seal of the Court which might be kept in the custody of the Registrar and section 56 provides that every final decision of the Court shall be drawn up under the seal of the Court.

Anyone familiar with the practice of the Lands and Titles Court under the 1934 Ordinance would realise that proceedings were commenced by filing a petition which in practice was published in the Savali, the Government newspaper publication. It was only in exceptional circumstances that such publication was waived and then only with leave granted by the President of the Court.

When the hearing proceeds, all parties to the hearing are examined by the Court and then a decision delivered. In some cases the decisions were reserved and in other cases the Court delivered its decision at the conclusion of the hearing. Those decisions were usually not typed out when delivered and only subsequently are the decision typed out and handed to the members of the Court for signing. Anyone familiar with decisions of the Court would also realise that a good number of those decisions are not sealed. Only a proper inquiry would disclose a close approximation of the total number of decisions of the Lands and Titles Court that are not sealed with the seal of the Court.

In this case, section 56 does not spell out the consequences which follow from non-compliance with the requirements for decisions of the Court to be drawn up under seal. It is to be borne in mind that the Court decision of 26 September 1962 is now 30 years old. That decision conferred certain rights on the successful parties and the people they represented in the Court hearing in 1962. They had acted and have been acting in reliance on that decision and it does not appear from the documents before this Court that the unsuccessful parties had challenged that decision until this year. There have been subsequent Court decisions based on the 1962 decision and it appears those subsequent decisions are also now final decisions. The successful parties in the 1962 decision also had no control over the affixation of the seal, or over those persons responsible for the affixation of the seal to the 1962 decision. It was due to no conduct on their part that the 1962 decision was not drawn up under the seal of the Court and that decision is not challenged for any reason other than the absence of a seal on the decision. I am of the view that it will cause serious inconvenience and injustice to the successful parties in the 1962 decision if the requirement of section 56 as to the drawing up of every decision under the seal of the Court is held to be mandatory. To so hold and thus nullify the 1962 decision of the Court because of a mere technicality which was not related to the merits of the case and was beyond the control of the parties would be a grave injustice.

I am also conscious that if the requirement as to a seal under section 56 is held to be mandatory, all the other decisions of the Lands and Titles Court which have not been sealed, and many of them go back many years and have conferred rights on many people, would also necessarily be null and void. This will undoubtedly cause serious inconvenience and injustice to many people in this country who, together with their ancestors who have passed away, have had no control over those persons responsible for affixing the seal of the Lands and Titles Court the final decisions of that Court. Such decisions if now declared null and void because of the absence of the seal, will undoubtedly be fought in Court again. But evidence may have been lost and the parties to those decisions have passed away.

Perhaps it is relevant here to refer to the decision of the Privy Council in Montreal Street Railway v Normandin [1917] UKPC 2; [1917] AC 170. In that case there was a statutory requirement in the state of Quebec in Canada that the list of jurors who sat on jury trials was to be revised annually. For several years the statutory requirement was neglected and the list of jurors was not revised even though jurors continued to sit on jury trials. On an application to declare the verdict of the jury in that case void on the ground that the jury had not been properly constituted because the statutory requirement for annual revision of the list of jurors had not been fulfilled, the Court dismissed the application. On appeal to the Privy Council, the appeal was dismissed. In the course of its judgment the Privy Council said:

"It is necessary to consider the principles which have been adopted in construing statues of this character, and the authorities so far as there are any on the particular question arising here. The question whether provisions in a statute are directory or imperative has very frequently arisen in this country, but it has been said that no general rule can be laid down, and that in every case the object of the statute must be looked at when the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the legislature, it has been the practice to hold such provisions to be directory only, the neglect of them though punishable, not affecting the validity of the acts done".

Even though section 56 of the Samoan Lands and Titles Protection Ordinance 1934 does not spell out whose duty it was to affix the seal of the Lands and Titles Court to its final decisions, there is no doubt that the parties to litigations under the 1934 Ordinance had no control over the affixation of the seal. I also see no useful purpose being served by holding as mandatory the statutory requirement for affixing the seal of the Land and Titles Court to its final decisions, will also not promote the main objects of the 1934 Ordinance.

That I have therefore come to the conclusion that the requirement under section 56 of the Samoan Land and Titles Protection Ordinance 1934 for the seal of the Land and Titles Court to be affixed to every final decision of that Court is directory only and the absence of a seal from the decision of the Court in LC 2513 of 26 September 1962 does not affect the validity of that decision.

There is one decision to which I must refer since it suggests a different approach from the mandatory or directory dichotomy to the question of whether non-compliance with a statutory requirement will result in the invalidity of an act done or not. This is the decision of the Court of Appeal of New South Wales in the case of Tasker v Fullwood [1978] 1 NSWLR 20 where it is said: "the problem is to be solved in the process of construing the relevant statute. Little, if any, assistance, will be derived from the terms of other statutes or any supposed judicial classification of them by reference to subject matter. The task of construction is to determine whether the legislature intended that a failure to comply with the stipulated requirement would invalidate the act done, or whether the invalidity of the act would be preserved notwithstanding non-compliance Ex rel Franklin Stores Pty Ltd v Lizelle Pty Ltd [1977] 2 NSWLR 955. The only true guide to the statutory intention is to be found in the language of the relevant provision and the scope and object of the whole statute Hatton v Beaumont [1977] 2 NSWLR 211. The intention being sought is the effect upon the validity of the act in question, having regard to the nature of the precondition, its place in the legislative scheme and the extent of the failure to observe its requirements: Victoria v Commonwealth and Connor [1975] HCA 54; [1975] 135 CLR 81. It can mislead if one substitutes for the question thus posed an investigation as to whether the statute is mandatory or directory in its terms. It is an invitation to error, not only because the true inquiry will be sidetracked, but also because these descriptions have been used with varying significations.

In particular, it is wrong to say that, if a statute is couched in directory terms, the act will be invalid, unless substantial performance is demonstrated Ex rel Franklin Stores Pty Ltd v Lizelle Pty Ltd [1977] 2 NSWLR 955. A statute which, on its proper construction, does not nullify the act in question, even for total non-observance of the stipulation, is also described as directory in its terms Victoria v Commonwealth and O'Connor (supra)". I have considered the different approach advocated by the New South Wales Court of Appeal in Tasker v Fullwood as well as its rejection of the mandatory or directory approach, and there is no doubt in mind that even if that different approach is applied to the present case and section 56 of the Samoan Land and Titles Protection Ordinance 1934, I would still have arrived at the same conclusion I have already reached in this case.

In view of the conclusion I have reached on the argument by the applicant, it is not necessary for me to deal with the submission by the first respondent. It must also be pointed out that this decision is not to be taken as meaning that this Court has jurisdiction to review or issue declaratory judgments in respect of decisions of the Land and Titles Court. That question is not decided in this case.

The motion is dismissed and there is no order as to costs.

CHIEF JUSTICE