Keil v Land Board [2000] WSSC 41 (21 December 2000)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

IN THE MATTER of the Declaratory Judgments Act 1988

AND

IN THE MATTER of the Lands, Surveys and Environment Act 1989.

BETWEEN

WILLIAM KEIL
of Vaigaga, Businessman.
Applicant

AND

LAND BOARD
established under the provisions of the
Lands, Surveys and Environment Act 1989.
First Respondent

AND

KYLE KEIL
of Vaigaga, Businessman and
ADELE KEIL
his wife both of Vaigaga.
Second Respondents

Counsel: S. Leung Wai for applicant
H. Wallwork for first respondent
K. M. Sapolu for second respondents

Hearing: 12 December 2000
Judgment: 21 December 2000

JUDGMENT OF SAPOLU CJ

This is a motion by the applicant, Mr William Keil, seeking various declaratory judgments or orders that:

(a) the first respondent, the Land Board, had acted ultra vires in its determinations and actions in connection with its decision of, on or about 5 October 1999 to allow the second respondents to reclaim the foreshore as far as where the applicant’s wooden jetty is located;

(b) the first respondent had acted ultra vires in its determinations and actions in connection with its decision of, on or about 29 February 2000 to allow the second respondents, Kyle Keil and Adele Keil, to continue with their reclamation;

(c) the said actions, determinations and decisions of the first respondent are invalid and of no legal effect;

(d) section 12(1) of the Lands Surveys and Environment Act 1989 does not apply to the said decisions which the first respondent purportedly made pursuant to sections 119 and 120 of the Lands, Surveys and Environment Act 1989;

(e) section 138 – the no certiorari provision of the Lands Surveys and Environment Act 1989 does not apply and/or has no legal effect on the within legal proceedings and/or the matters raised in the within legal proceedings.

In order to understand the various declaratory orders sought by the applicant, it is necessary to know the background facts. These can be briefly gathered not only from the written submissions and documentation in these proceedings but also from the affidavits filed in separate appeal proceedings that had been brought by the applicant. Essentially, the applicant and the second respondents are relatives and they own dry lands at Vaitele. Both their dry lands adjoin the sea and are adjacent to one another. In or about 1999, the second respondents wanted to reclaim the foreshore which adjoins their dry land. They then applied to the Land Board, the first respondent, for a licence to reclaim ¼ of an acre of the foreshore which adjoins their dry land. In January 1999, the first respondent approved the application and the second respondents reclaimed their foreshore up to a breadfruit tree on the applicant’s land. On 5 October 1999, the first respondent approved another application from the second respondents to continue their reclamation of the foreshore up to the wooden jetty on the applicant’s land. The applicant then lodged a written objection dated 29 November 1999 with the first respondent regarding its decision which allowed the second respondents to continue their reclamation up to the wooden jetty on his land on the ground that the continued reclamation would be detrimental to his enjoyment of his land. The first respondent refused the objection and maintained its decision of 5 October 1999. Consequently, the applicant, being at the time represented by different counsel, appealed to this Court against the decision of the first respondent in separate proceedings under the appeal provisions of section 12 of the Lands Surveys and Environment Act 1989 (the Act). I dealt with that appeal in separate proceedings and struck it out as it was out of time. The applicant has now moved for judicial review seeking declaratory orders that both decisions of the first respondent made on 5 October 1999 and 29 February 2000 are invalid as being ultra vires the provisions of the Act. The applicant further seeks declaratory orders that section 12 of the Act does not apply to the aforesaid decisions of the first respondent and that the no certiorari provisions of section 138 of the Act also do not apply.

I will now deal in turn with each part of the applicant’s motion for declaratory orders. Counsel for the applicant submitted that the decisions made by the first respondent to allow the second respondents to reclaim the foreshore up to the wooden jetty on the applicant’s land are ultra vires the powers given to the first respondent under the Act. Counsel further submitted that the first respondent does not have any power at all to allow reclamation of the foreshore or coastal waters. That power is vested in the Minister of Lands, Surveys and Environment (the Minister) by sections 119 and 120 of the Act.

Section 119 as far as relevant provides:

“No person shall, except with the prior consent in writing of the Minister:

“(c) place any fill or material of any type within the foreshore.”

The tem “foreshore” is defined, as far as relevant, in section 2 to mean:

“(a) all that area between the mean low water mark and a line connecting those points landward and measured at right angles to a distance of 50 metres from the low water mark.”

Section 120 as far as relevant then provides:

“No person shall, except with the prior written consent of the Minister:

“(c) place any fill or material of any type within the coastal waters.”

The expression “coastal waters” is defined in section 2 to mean:

“All that area having as its inner boundary the mean low water mark, and as its water boundary, the outer limit of the territorial sea, and includes every lagoon and bed of such sea or lagoon.”

The term “territorial sea” is defined in several sections of the Territorial Sea Act 1971. I do not need to refer to such a lengthy definition. Suffice to say that it was not disputed that the sea area which the first respondent allowed the second respondents to reclaim is within the meaning of the terms “foreshore” and “coastal waters” as defined in the Act. Given the closeness of the sea area in dispute to dry land, it is not surprising that counsel for the first and second respondents did not dispute that that sea area is part of the foreshore and coastal waters.

As the first part of the applicant’s motion for declaratory orders is based on the doctrine of ultra vires, I consider it appropriate to turn now to the question of ultra vires as a basis for judicial review. I must point out that the doctrine of ultra vires no longer forms the basis of judicial review of administrative power. Under the modern English law of judicial review, the principles or grounds of judicial review were set out by Lord Diplock in Council for Civil Service Unions v Minister for the Civil Service [1985] AC 374 as “illegality”, “procedural impropriety” and “irrationality”. His Lordship said at pp. 410-411:

“Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call ‘illegality’, the second ‘irrationality’ and the third ‘procedural impropriety’. This is not to say that further development on a case by case basis may not in the course of time add further grounds.... By ‘illegality’ as a ground for judicial review I mean that the decision – maker must understand correctly the law that regulates his decision – making power and must give effect to it.... By ‘irrationality’ I mean what can by now be succinctly referred to as ‘Wednesbury unreasonableness’ (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.... I have described the third head as ‘procedural impropriety’ rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred even where such failure does not involve any denial of natural justice.”

It would be seen from this classification of the general principles of judicial review that there is no mention of ultra vires. The reason for this is best explained in de Smith, Woolf and Jowell Judicial Review of Administrative Action (1995) 5^th ed at para 5-043 where it is stated:

“(1) The doctrine of ultra vires, to the extent that it implies that all administrative power is derived from a specific statutory source, can no longer be considered the sole justification for review of the powers of bodies exercising public functions. Certain of these functions are today carried out under common law powers or under powers, like that of self-regulatory bodies, with ‘no visible means “of legal support’. These powers ‘do not lend themselves to the language of ultra vires’.... Insistence upon ultra vires as the basis for judicial review inhibits review when the powers of the body are not derived from a defined statutory source. As has been noted, these days an increasing amount of regulatory activity is carried out by the use of powers created by contract, or by means of the manipulation of rights to property. Even prerogative powers, formerly immune from judicial review, have been brought within its ambit. The review of such powers cannot easily be justified by the ultra vires principle. Yet the Courts have recognised that it is important to the rule of law that the abuse of those powers be controlled irrespective of their source and that the nature of the control should be the same as the control of more conventional administrative powers conferred by statute.

“(2) Accordingly, the foundation for judicial review should no longer be regarded as ultra vires. In general therefore, upon an application for judicial review it is no longer of any significance whether the source of alleged invalidity of administrative action is based upon an excess of jurisdiction or error of law within jurisdiction. Nor does it matter whether the error is or is not an error disclosed on the face of the record.

“(3)Therefore, all power can be appropriately reviewed today under what might be described as the principles of lawful or legitimate administration. These principles enunciated as ‘grounds’ of judicial review were conveniently set out by Lord Diplock in the GCHQ case (a case itself involving review of the prerogative power) as ‘legality’, ‘procedural propriety’ and ‘rationality’. These requirements form a firm foundation upon which to review the public functions of modern administration and do not depend upon the limited notion of jurisdiction or vires in its narrow sense.”

de Smith, Woolf and Jowell then goes on to set out the limited exceptions to the modern principles of judicial review. But they are not relevant for the purposes of this judgment.

The relevant modern principle of judicial review to this case is that of legality which is discussed by de Smith, Woolf and Jowell under the heading of “illegality.” At para 6-001 of their book, it is stated:

“An administrative decision is flawed if it is illegal. A decision is illegal if:

“(1) it contravenes or exceeds the terms of the power which authorises the making of the decision; or

“(2) it pursues an objective other than that for which the power to make the decision was conferred.

“The task for the Courts in evaluating whether a decision is illegal is essentially one of construing the content and scope of the instrument conferring the power in order to determine whether the decision falls within its ‘four corners’. In so doing the Courts enforce the rule of law, requiring administrative bodies to act within the bounds of the powers they have been given. They also act as guardians of Parliament’s will-seeking to ensure that the exercise of power is what Parliament intended.”

The passages I have cited have been repeated without change in Principles of Judicial Review (1999) by de Smith, Woolf and Jowell at para 4-041 and para 5-001 respectively. And for completeness, the GCHQ case mentioned in the first of the two passages cited is reported as Council for Civil Services Unions v Minister for the Civil Service [1985] AC 374; [1984] 3 A11 ER 935 and has already been referred to in this judgment.

What is being sought and submitted on behalf of the applicant in this case is that the decisions of the Land Board, as first respondent, to allow the second respondents to reclaim and continue to reclaim the disputed sea area up to the wooden jetty on the applicant’s land are ultra vires the Act in that the real repository of such power is not the first respondent but the Minister under sections 119 and 120 of the Act. Under the new formulation of the principles of judicial review the appropriate ground for challenging the validity of the decisions made by the first respondent would be illegality and not ultra vires. However, in the circumstances of this case, the use of ultra vires rather than illegality is more a matter of form than of real substance as ultra vires is now embraced within the principle of illegality. I will therefore treat the first part of the motion as in substance founded on the principle of illegality though phrased in the terminology of ultra vires.

In my view the submissions by counsel for the applicant that the power to authorise reclamation of the foreshore and coastal waters is vested in the Minister should be accepted. It is very clear from sections 119 and 120 of the Act that no person may place any fill or material of any type without the prior consent in writing of the Minister. There is no similar provision in the Act which gives such power to the first respondent or anyone else. Therefore, the first respondent did not have the power to allow the second respondents to reclaim the foreshore adjoining his dry land from the breadfruit tree on the applicant’s land up to the wooden jetty on the applicant’s land.

I realise that under the Land Ordinance 1959 which was the predecessor of the Lands Surveys and Environment Act 1989, the first respondent used to issue licences to reclaim the foreshore. That continued even after the enactment of the 1989 Act. But whatever had been the source of the first respondent’s power to allow reclamation of the sea, it is now clear that the Act has vested that power in the Minister.

Counsel for the first respondent submitted that the Minister is the chairman of the first respondent and therefore must have consented to the reclamation to be carried out by the second respondents when the first respondent made its decisions of 5 October 1999 and 29 February 2000. Counsel for the applicant, on the other hand, replied that there is no evidence as to how the first respondent arrived at its decision and therefore, one cannot rule out the possibility that the Minister might have been outvoted or was in the minority when the first respondent arrived at its decisions. In my view the nub of the matter is that the Act in sections 119 and 120 expressly and specifically confer the power on the Minister alone to decide whether to allow any part of the foreshore or coastal waters to be reclaimed or filled with material of any type. That power is not given to the first respondent or to the Minister sitting as chairman of the first respondent. It is given to the Minister alone in his capacity as Minister. On the material placed before the Court, the decisions to allow the second respondents to reclaim the foreshore and coastal waters were clearly made by the first respondent and not the Minister. That is illegal in terms of the new formulation of the principles of judicial review.

Counsel for the second respondents submitted that the first respondent has the power to allow reclamation of the foreshore and coastal waters. She relied on section 7(1) of the Act which, as far as relevant, provides:

“It shall be the duty of the Board to carry out the provisions of this Act for the “administration, management, development, alienation, settlement, protection, and “care of Government land;...”

Counsel for the second respondents submitted that as the words of section 7(1) confer on the first respondent the duty to carry out the provisions of the Act for the protection and care of Government land, that must include protection and care of the foreshore and coastal waters as the foreshore and coastal waters are public land by virtue of Article 104 of the Constitution and therefore Government land by virtue of section 2 of the Act. Counsel further submitted that the duty of the first respondent under section 7(1) carries with it the power to determine whether to allow a reclamation of the foreshore or coastal waters.

I am unable to accept these submissions for the second respondents. Section 7 of the Act sets out the duties of the first respondent in broad general terms. Sections 119 and 120 give specific powers to the Minister to decide whether to consent or not to consent to a reclamation of the foreshore or coastal waters. It is a principle of statutory interpretation expressed in the maxim generalia specialibus non derogant that if there is a conflict between a provision of an Act which is of general application and a specific provision of the same Act, the general provision gives way to the specific provision. Thus, I am of the view that the general provisions of section 7(1) should give way to the clear and specific provisions of section 119 and 120 of the Act which explicitly give the Minister the power to decide whether to allow or not to allow a reclamation of the foreshore. The position would, however, have been different if the intention of the Act was clear that the general provision should not give way but exist side by side with the specific provision. But there is no such clear intention under the Act.

I turn now to the next part of the motion, namely, that the Court should declare that section 12 of the Act does not apply to the decisions the first respondent purported to make pursuant to sections 119 and 120 of the Act. With respect to counsel for the applicant, I am not entirely clear what is meant here. The two remedies available to the applicant are his right of appeal under section 12 of the Act if he is dissatisfied with the decisions of the first respondent and judicial review. He has exercised both remedies.

Conventionally, appeal is the appropriate remedy which lies where a person wishes to challenge the merits of a decision and judicial review is the appropriate remedy if a person wishes to challenge the validity of a decision on the ground of absence or excess of jurisdiction. However, the distinction between the two remedies has become increasingly blurred as the scope of judicial review continues to expand. Be that as it may, the circumstances referred to in the motion for declaratory orders clearly show that judicial review is the appropriate remedy to seek since what is in issue is whether the first respondent exceeded its jurisdiction or acted without jurisdiction. To this extent, appeal would not be the appropriate remedy. But if the applicant wishes to challenge the merits of the decisions by the first respondent, he may still exercise his right of appeal under section 12 which he has already done.

I turn now to the last part of the motion, namely, that the no certiorari provisions of section 138 of the Act do not apply or have any legal effect on the present proceedings. Section 138 provides:

“No order or other proceeding made touching or concerning the matters contained in this Act, or touching or concerning the conviction of any offender against this Act, or ay other Act relating to the administration of Government land, shall be removed or removable by certiorari or any writ or process whatsoever into any Court.”

It must now be well-known to Samoan lawyers that the ‘‘English common law and equity” for the time being applies to Samoa, as far as they are not excluded by any other law in force in Samoa and any custom and usage which has acquired the force of law in Samoa, by reason of Article 111 (1) of the Constitution. It follows that the English common law which appears from decisions of the English Courts on the effect of “no certiorari” provisions in a statute are very relevant to a consideration of section 138 of the Act. In ex parte Bradlaugh [1878] UKLawRpKQB 56; [1877-1878] 3 QBD 509 the English Court of Queen’s Bench had to consider the effect of section 49 of the Police Courts Act which provided that no information, conviction or other proceeding before the magistrates shall be removed by certiorari into the Court of Queen’s Bench. Cockburn CJ, in relation to that provision, said at p. 513:

“I am clearly of opinion that the section does not apply when the application for the certiorari is on the ground that the inferior tribunal has exceeded the limits of its jurisdiction.”

Mellor J at p. 513 also said:

“It is well established that the provision taking away the certiorari does not apply where there was an absence of jurisdiction. The consequences of holding otherwise would be that the metropolitan magistrate could make any order he pleased without question.”

In the Re Gilmore’s Application [1957] 1 A11 ER 796, the English Court of Appeal was concerned with section 36 (3) of the National Insurance (Industrial Disputes) Act 1946 which provided that any decision of the medical appeal tribunal “shall be final”. As to the effect of such a provision on an application for certiorari, Lord Denning MR at p. 803 said:

“I would like to say a word about the old statutes which used, in express words, to take away the remedy by certiorari. Those statutes were passed chiefly between 1680 and 1848 in the days when the Courts used certiorari too freely and quashed decisions for technical defects of form. In stopping this abuse the statutes proved very beneficial, but the Court never allowed those statutes to be used as a cover for wrong doing by tribunals. If tribunals were to be liberty to exceed their jurisdiction without any check by the Courts, the rule of law would be at an end. Despite express words taking away certiorari, therefore, it was held that certiorari would still lie if some of the members of the tribunal were disqualified from acting: see R. V. Cheltenham Commissioners [1841] EngR 582; (1841) 1 QB 467 at p. 474.... So, also, if the tribunal exceeded its jurisdiction (see Ex parte Bradlaugh [1878] UKLawRpKQB 56; (1878) 3 QBD 509), or if its decision was obtained by fraud (R. V. Gillyard (1848) 12 QBD 527), the Courts would still grant certiorari.”

In the next case of R. v. Hurst, ex parte Smith [1960] 2 QB 133, the English Court of Queen’s Bench was concerned with section 107 of the County Courts Act 1959 which provided that no judgment or order of the County Courts, nor any proceedings before the County Courts, shall be removed by “certiorari or otherwise” into any other Court. In relation to that provision, Lord Parker CJ said at pp. 142-143

“Notwithstanding that, I am quite satisfied that certiorari will lie in this case. The leading case on the matter is Ex parte Bradlaugh [1878] UKLawRpKQB 56; (1878) 3 QBD 509, where Mellor J put the principle in these few words:

‘It is well established that the provision taking away the certiorari does not apply where there was an absence of jurisdiction.... The consequence of holding otherwise would be that a metropolitan magistrate could make any order he pleased.’

“To the same effect are a number of cases including, coming to quite recent times, R. v Worthington-Evans, Ex parte Madan [1959] 2 QB 145; and R v Medical Appeal Tribunal, Ex parte Gilmore [1957] 1 A11 ER 706. I am quite satisfied that certiorari will lie against a County Court Judge if he has acted without jurisdiction, notwithstanding the provisions of the County Court Act 1959, to which I have referred.”

In the landmark case of Anisminic Ltd v The Foreign Compensation Commission [1969] 1 A11 ER 208 where the House of Lords was concerned with a privative clause and the powers of a statutory administrative tribunal, Lord Pearce at p 238 referred with approval to the line of authorities to which I have referred.

From the English authorities I have referred to, it is clear that a “no certiorari” provision in a statute cannot remove the power of superior Courts of record to grant certiorari where an administrative statutory tribunal or an “inferior” Court has acted without jurisdiction. However, the applicant in this case has not expressly asked for certiorari in his motion. The application for certiorari was only made orally in the course of counsel’s submissions. With respect, I do not think I should grant certiorari on the basis of oral submissions alone, when certiorari is not expressly sought in the motion which seeks only declaratory orders.

Now the words of section 138 of the Act are not restricted to certiorari. Section 138 says that no order or proceeding concerning the administration of Government land shall be removed by “certiorari or any writ or process whatsoever into any Court.” A motion for a declaratory order is not a writ but the words “any process whatsoever” should be sufficiently wide to extend to a motion for declaratory orders. I therefore have to decide whether section 138 can effectively exclude the applicant’s motion for declaratory orders.

In the landmark case of Anisminic Ltd v Foreign Compensation Commission [1969] 1 A11 ER 208 to which I have already referred, the English Courts were concerned with an action by Anisminic Ltd seeking declarations against a determination made by the Foreign Compensation Commission, an administrative tribunal, which effectively denied the application by Anisminic Ltd for compensation. In the High Court, Browne J made a declaration that the determination made by the Foreign Compensation Commission was made without, or in excess of jurisdiction, and was therefore a nullity. On appeal to the Court of Appeal, the decision of Browne J was reversed. On further appeal to the House of Lords, their Lordships reversed the decision of the Court of Appeal and restored the decision of Browne J.

In issue in that case was section 4(4) of the Foreign Compensation Act 1950. That section provided:

“The determination by the Commission of any application made to them under this Act shall not be called in question in any court of law.”

That is obviously a privative clause. And the English Courts had to consider whether that provision could effectively bar an action which seeks a declaration that the determination of the Foreign Compensation Commission was a nullity on the ground that it was made without jurisdiction. The House of Lords in reversing the Court of Appeal, held that section 4(4) of the Foreign Compensation Act 1950 did not oust the Courts jurisdiction to issue a declaration where a statutory tribunal has acted without or in excess of its jurisdiction.

Prior to Anisminic’s case, one of the distinctions the Courts were often required to make for the purpose of judicial review was between jurisdictional errors and non-jurisdictional errors, that is, between errors that go to jurisdiction and errors within jurisdiction. Jurisdictional errors or errors that go to jurisdiction, would occur where a statutory body never had jurisdiction to act. Such errors were amenable to judicial review. Non-jurisdictional errors or errors within jurisdiction occur where a statutory body had jurisdiction to act but in the course of the exercise of its jurisdiction it commits an error. Such an error was treated as not amenable to judicial review unless apparent on the face of the record. The major breakthrough in administrative law which was achieved in Anisminic’s case was the expansion of the scope of the notion of jurisdictional error so that nearly all the errors committed during the exercise of jurisdiction became errors that go to jurisdiction or jurisdictional errors and therefore subject to judicial review. In this way, Anisminic broadened the scope of judicial review in a major and significant way. Many Judges as well as academic and practising lawyers, consider that this was achieved principally in the judgment of Lord Reid where His Lordship said at pp. 213-214 of Anisminic’s case:

“It has sometimes been said that it is only where a tribunal acts without jurisdiction that its decision is a nullity. But in such cases the word ‘jurisdiction’ has been used in a very wide sense, and I have come to the conclusion that it is better not to use the term except in the narrow and original sense of the tribunal being entitled to enter on the inquiry in question. But there are many cases where, although the tribunal had jurisdiction to enter on the enquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the enquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend the list to be exhaustive. But if it decides a question remitted to it for decision without committing any of these errors it is as much entitled to decide that question wrongly as it is to decide it rightly.”

One of the grounds raised by counsel for the applicant in support of his oral submissions for certiorari in this case, is that the first respondent, when considering the application by the second respondents to reclaim the foreshore, did not take into relevant factors which were the interests of the applicant and the impact the second respondents reclamation would have on the adjoining dry land of the applicant. Counsel relied for that ground on my unreported judgment in Alfred Hunt v Attorney-General (1994). Clearly, if a person or body enters into an inquiry he or it has jurisdiction to enter into, takes into account an irrelevant consideration, or fails to take into account a relevant consideration, in reaching a decision, such decision is amenable to judicial review. However, in this case there was no mention of certiorari in the applicant’s motion for declaratory orders. The oral request for certiorari only came up in the course of counsel’s submissions. And counsel for the first and second respondents were not in a position to deal with the issue. I have therefore decided to leave out the oral application for certiorari.

In the more recent decision of the House of Lords in O’Reilly v Mackman [1983] UKHL 1; [1983] 2 AC 237, Lord Diplock at p. 278 said:

“Fortunately for the development of public law in England, s 14(3) contained express provision that the section should not apply to any order or determination of the Foreign Compensation Commission, a statutory body established under the Foreign Compensation Act 1950, which contained s 14(4) an express provision:

“The determination by the Commission of any application made to them under this Act shall not be called in question in any court of law.”

“It was this provision that provided the occasion for the landmark decision of this House in Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6; [1969] 2 AC 147, and particularly the leading speech of Lord Reid, which has liberated English public law from the fetters that the Courts had theretofore imposed upon themselves so far as determinations of inferior courts and statutory tribunals were concerned, by drawing esoteric distinctions between errors of law committed by such tribunals that went to their jurisdiction, and errors of law committed by them within their jurisdiction. The breakthrough that the Anisminic case made was the recognition by the majority of this House that if a tribunal whose jurisdiction was limited by statute or subordinate legislation mistook the law applicable to the facts as it had found them, it must have asked itself the wrong question i.e., one into which it was not empowered to inquire and so had no jurisdiction to determine. Its purported ‘determination’ not being a ‘determination’ within the meaning of the empowering legislation was accordingly a nullity.”

In this passage Lord Diplock has actually reaffirmed the virtual elimination of the distinction between jurisdictional and non-jurisdictional errors that was achieved in Anisminic. The above passage was also cited with approval by Cooke J (as he then was) in the New Zealand case of Bulk Gas Users Group v Attorney-General [1983] NZLR 129 at p. 134. In that case the appellants sought a declaration in the High Court that the Secretary of Energy had under the Commerce Act 1975, denied them the opportunity to be heard on a matter in which they had a direct interest. Section 96 of the Commerce Act 1975 which contains a privative clause provides:

“Except on the ground of lack of jurisdiction, no order, approval, proceeding or decision of the Secretary under this Part of this Act shall be liable to be challenged, reviewed, quashed, or called in question in any Court....”

On appeal to the Court of Appeal, Cooke J, in a judgment with which the other members of the Court concurred, said at p. 135:

“[If] as a matter of interpreting the Act the Court can see that a definite test is laid down by Parliament, a decision by the Secretary will be invalid if he has not applied that test but some other. It would then be a simple case of an authority, which happens to be bound to act judicially but is nevertheless basically an administrative authority or tribunal, applying a wrong and inadmissible test and so not exercising his or its true powers – just as in the Privy Council cases of Estate and Trust Agencies (1927) Ltd v Singapore Improvement Trust [1937] AC 898, 917 and Marada Mosque Trustees v Mahmud [1967] 1 AC 13, 25. The privative clause would not apply, because there would be a lack of jurisdiction in the sense recognised in Anisminic.”

In view of all these authorities, I have come to the conclusion that section 138 of the Act cannot prevent the Court from entertaining and deciding on the applicant’s motion for declaratory orders on the ground that the first respondent lacked jurisdiction to authorise the second respondents to reclaim the foreshore or coastal waters. The power to authorise any reclamation of the foreshore or coastal waters is now vested in the Minister.

Under the old distinction between jurisdictional and non-jurisdictional errors which was virtually eliminated by Anisminic, the error in this case would be a jurisdictional error or an error that goes to jurisdiction. The reason for this is that the first respondent never had power to make the decision which authorised the second respondents reclamation. If it had power to make that decision but erred in the course of exercising that power, its error would have been a non-jurisdictional error or an error within jurisdiction. Prior to Anisminic, only jurisdictional errors were amenable to judicial review, but non-jurisdictional errors were not, unless apparent on the face of the record. Anisminic, as I have already stated, virtually abolished the distinction between jurisdictional and non-jurisdictional errors and made virtually all errors jurisdictional errors, and thus subject to judicial review. In this way, Anisminic broadened the scope of judicial review in a major and significant way. At the same time, Anisminic effectively held that a privative clause cannot oust the jurisdiction of the Court to issue a declaration or grant judicial review where an administrative body has acted without jurisdiction or in excess of jurisdiction.

I have written at greater length on the privative clause issue than initially intended, and with some repetitions, because there appears to be not only a growing number of motions for judicial review coming before the Court, but also motions for judicial review where some privative clause is raised as an issue. Samoan law in this connection is still evolving.

Conclusions

In conclusion I make the following declaratory orders:

(1) the first respondent’s decision of on or about 5 October 1999 to allow the second respondents to reclaim the foreshore from the breadfruit tree to the wooden jetty of the applicant is illegal,

(2) the first respondent’s decision of, on or about 29 February 2000 to allow the second respondents to continue with their reclamation from the breadfruit tree on the applicant’s land as far as where the wooden jetty of the applicant is located is also illegal;

(3) the said decisions of the first respondent are invalid and of no effect; and

(4) section 138 of the Lands Surveys and Environment 1989 does not bar the applicant’s motion for declaratory orders.

As we are close to the Christmas and New Year Holidays, and today is the Court’s last sitting day for this year, counsel to file submissions on the question of costs by 31 January 2001.

CHIEF JUSTICE

Solicitors:
Leung Wai Law Firm for applicant
Attorney General’s Office for first respondent
Sapolu Lussick for second respondents