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Supreme Court of Samoa |
IN THE SUPREME COURT OF SAMOA
HELD AT APIA
BETWEEN
NUU POUNIU, NUU POGISA, LEATINUU SIANIU,
NIUAVA MALO, LEATINU’U FILIFILI,
all matai of Vailoa.
Applicants
AND
LAND TITLES INVESTIGATION COMMISSION
a body constituted under the Land Titles Investigation Act 1966.
First Respondent
AND
SASA FELOTOI
of Vailoa Faleata
Second Respondent
Counsel: MC Leung Wai for applicants
T Potoi-Vaai for first respondent
TK Enari for second respondent
Hearing: 25 February 2003
Judgment: 4 March 2003
JUDGMENT OF SAPOLU CJ
The applicants and the second respondent, Sasa Felotoi, were parties to a land claim that was heard and determined by the first respondent, the Commission established under s.4 of the Land Titles Investigation Act 1966 to inquire into a claim made by any person to individual ownership of or property in any land other than land undoubtedly held as individual property as an estate in fee simple created or confirmed by Crown Grant or Court Grant. In dealing with such a claim, the Commission may determine, inter alia, under s.18 of the Act that the land is customary, freehold or public land, or that the claim be rejected. The second respondent lodged a claim with the Commission on behalf of the estate of one Sasa Salesa deceased in relation to a parcel of land containing an area of two acres three roods and twenty seven decimal point three perches (2a.3r.27.3p) which is situated at Vailoa, Faleata. I presume, as it is not clear from the material placed before the Court, that the second respondent is a descendant of the said Sasa Salesa and that her claim was for the Commission to determine the said land to be freehold land which belongs to the estate of Sasa Salesa deceased. The applicants then lodged an objection under s.19 to the claim. On 23 and 24 September 2002 the Commission heard the claim by the second respondent and the objection by the applicants and on 27 September 2002 delivered its determination that the said land is freehold land which belongs to Salesa and his wife Faafiti both late of Vailoa, Faleata, as tenants in common in equal shares. In effect, the Commission upheld the claim by the second respondent.
By amended notice of motion for judicial review the applicants have moved this Court to set aside the decision of the Commission. Four grounds are given in support of the notice of motion. These are (1) the Commission did not have a quorum when it heard the claim by the second respondent; (2) alternatively, the Commission did not have a quorum when it heard the second respondent’s claim as the secretary to the Commission, whilst purporting to be a member of the Commission, was not validly authorised to sit as a member; (3) alternatively, if a quorum was present the Commission was not properly constituted as (a) it was not appropriate for a person to act as both secretary to the Commission and a member of the Commission, (b) no senior Samoan Judge was sitting on the Commission so that the necessary balance in the membership of the Commission was compromised; and (4) the Commission failed to take into account a number of relevant considerations enumerated in the notice of motion. By amended notice of motion, the Commission sought to strike out the amended notice of motion for judicial review by the applicants and all the grounds upon which it relies.
The present proceedings touch upon some of the basics of the law of judicial review which may not often be very clear. It is necessary to deal with those basics in deciding the strike out motion by the Commission. In so doing no discourtesy is intended for I am aware that all present counsel have expertise in other areas of the law.
Motion for judicial review
Conventionally, a motion or application for judicial review seeks to review the decisions, determinations and orders of individuals and bodies which perform public functions. This may be done by seeking (a) a declaratory judgment or order to declare any such decisions, determinations or orders invalid, null and void, or simply void, or (b) a quashing order, often sought in the form of certiorari, to quash. Where appropriate, both remedies may be sought in the same motion or application for judicial review. In practice, a declaratory order is normally sought to declare a decision or determination of a statutory body, as it is in this case, to be invalid or void. Sometimes an order is sought in the alternative or in conjunction to quash such a decision. It is uncommon to move to "set aside" a decision or determination of a statutory body in proceedings for judicial review. The function of a declaratory order is to declare and that of a quashing order or certiorari is to quash. The notice of motion for review in this case will have to be amended to seek a declaratory order or a quashing order if not both .
Strike-out motion
This is the first time the Court has to deal with a motion to strike out proceedings for judicial review for not disclosing a cause of action. The Court is used to dealing with applications to strike out a statement of claim by a plaintiff in general civil proceedings on the ground that it does not disclose a cause of action or is an abuse of process. But that is in the area of private law. When the Court is dealing with proceedings for judicial review it is dealing with proceedings in the domain of public law. It is therefore a debatable question whether the Court has jurisdiction to entertain a motion to strike out a motion for judicial review for not disclosing a cause of action for a civil wrong.
The issue is by no means a simple one. All counsel in this case appear to have assumed that the Court has jurisdiction to strike out a motion for judicial review which does not disclose a cause of action but no authority was cited to the Court for such a position. The practice and procedure of the Court for many years now is that where a person brings a motion or application for judicial review, the motion or application must set out the relevant grounds for review, but where a person brings a civil action a statement of claim must be filed which must disclose a cause of action for a civil wrong such as a tort, breach of contract, breach of fiduciary duty or unjust enrichment. There is no requirement in our law that a motion for judicial review must disclose a cause of action. But Rule 13 of the Supreme Court (Civil Procedure Rules) 1980 requires every civil action to be commenced by filing a statement of claim which shall, inter alia, set forth a cause of action. However if reference is made to rules 188 to 196 regarding proceedings to be commenced by way of motion and forms 52 and 53 required for such motions, it would be clear that a motion for judicial review does not have to disclose a cause of action but it must show valid grounds for review. Grounds for review upon which a motion is founded are different from a cause of action in a statement of claim. At this stage in the evolution and development of our law of judicial review, the conventional grounds for review do not provide a cause of action for a claim for damages. If that position is to change then proper submissions supported by relevant authorities must be placed before the Court. The Court would therefore not entertain an application to strike out a motion for judicial review on the ground that it discloses no cause of action at this stage in the evolution and development of our law of judicial review.
However, I am of the opinion that the Court has jurisdiction to strike out a motion for judicial review or any of the grounds upon it is founded, where it has been shown to constitute an abuse or misuse of the Court’s process. In private law the Court has always had inherent jurisdiction to strike out a statement of claim for not disclosing a cause of action or for abuse of process. In my judgment, the Court must have the same jurisdiction in public law to strike out a motion for judicial review which is an abuse or misuse of process. The nature of the proceedings whether public law or private law should not be the determining factor whether such a jurisdiction exists. What is at stake is the process of the Court which must be safeguarded against abuse or misuse regardless of whether the abuse or misuse occurs in public law or private law. The question then is whether the motion for judicial review in this case is an abuse of process or more appropriately a misuse of process. As with an application to strike out a claim in private law, the jurisdiction to strike out a motion for judicial review in public law for abuse or misuse of process must be sparingly exercised and should only be exercised in a very plain and obvious case after all the relevant material is placed before the Court. I will now deal with each of the grounds of the strike-out motion though not in the same order they were dealt with by counsel.
Failure to take into account relevant considerations
One of the grounds relied upon in the motion for judicial review which the Commission seeks to strike out is that the Commission in hearing and determining the claim by the second respondent failed to take into account the relevant considerations enumerated in the applicants motion for review. It was submitted for the Commission that this Court has no jurisdiction to set aside the determination made by the Commission on that ground of the motion for review.
With respect, the failure of a statutory body like the Commission in this case which performs public functions to take into account relevant factors or considerations in reaching its decision on a claim before it, makes that decision amenable to judicial review. In Alfred Hunt v Attorney-General (1994) (C.P. 351/93; unreported judgment of the Supreme Court delivered on 4 October 1994), I said at p.7 of that judgment:
"I accept that a relevant or irrelevant factor may overlap with the ground of reasonableness in the circumstances of some cases, but it must also be appreciated that conventionally, the failure to take into account a relevant factor or the taking into account of an irrelevant factor, is an independent ground for judicial review in its own right: see for instance the judgment of Mason J in Minister for Aboriginal Affairs v Peko Wollsend Ltd (1986) 162 CLR 24 and that of Cooke Pin New Zealand Fishing Industry Association v Minister of Agriculture and Fisheries [1988] 1 NZLR 544."
I touched on the same issue again in William Keil v Land Board & Others (2000) (unreported judgment of the Supreme Court delivered on 21 December 2000) where I said at p.15:
"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 account 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 may be amenable to judicial review".
These grounds of taking into account irrelevant factors or considerations and failure to take into account relevant factors or considerations as a means of challenging the validity of the decision of a public body are discussed in detail in the judgments of the High Court of Australia in Minister for Aboriginal Affairs v Peko Wollsend Ltd (1986) 162 CLR 24 and more recently in Principles of Judicial Review (1999) by de Smith, Woolf & Jowell at pp.210-221. Thus the Court has jurisdiction to entertain a motion for judicial review which relies on the grounds that a statutory body in reaching a decision took into account irrelevant factors or failed to take into account relevant factors.
In William Keil v Land Board & Others (2000). I referred to the modern formulation of the principles or grounds for judicial review 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". A possible further principle for judicial review for the future is "proportionality". All those four grounds are the subject of detailed and in-depth discussion in Principles of Judicial Review (1999) by de Smith, Woolf and Jowell with the ground of "procedural impropriety" being labelled as "procedural fairness". It will be seen from that discussion that the grounds of taking into account irrelevant factors or the failure to take into account relevant factors now come under the modern principle of "illegality"; natural justice now comes under the principle of "procedural fairness"; and Wednesbury unreasonableness now comes under the principle of "irrationality".
The Court has jurisdiction to entertain the applicants motion for judicial review based on the principle of illegality where it is alleged that a statutory body in making its decision failed to take into account relevant factors. But whether that motion will actually succeed depends on the outcome of the hearing when the Court hears further submissions and considers all the relevant circumstances. For this purpose, counsel would have to place before the Court a copy of the complete record of the proceedings before the Commission. At this stage not all the relevant circumstances have been placed before the Court.
Quorum
The first three grounds of the applicants motion for judicial review, namely, that the Commission did not have a quorum when it heard and determined the claim by the second respondent; that one of the numbers of the Commission was not validly authorised to deputise for the Director of Lands, Surveys and Environment; and even if a quorum was present it was not properly constituted, can all be dealt with together under the principle of illegality.
Under s.4 of the Land Titles Investigation Act 1966 which sets up the Commission, it provides that the Commission shall consist of five members. One of the members shall be the Chief Justice who shall be the chairman of the Commission; the second member shall be the Director of Lands, Surveys and Environment. There are then three other members to be appointed by the Head of State on the advice of Cabinet for terms of three years and one of these appointed members shall be a senior Samoan Judge. Section 7 then provides for the appointment of deputies of members and s.8 provides that the quorum for sittings of the Commission shall be four.
At the sitting of the Commission in which the claim by the second respondent was heard and determined, I did not sit and Justice Vaai deputised on my behalf. The Director of Lands, Surveys and Environment was also not present and the Assistant Director Land Management of the Lands, Surveys and Environment Department purported to deputise for him. The senior Samoan Judge who is a member of the Commission was also not present but no deputy was authorised to sit on his behalf. The result was that there were four members sitting on the Commission to hear the claim by the second respondent. So a quorum appeared to have been present.
The challenge made by the applicants is that there was no valid quorum because the Assistant Director Land Management of the Lands, Surveys and Environment Department was not validly authorised to sit as deputy of the Director of Lands, Surveys and Environment and even if he was validly authorised, the Commission was not validly constituted as the Assistant Director Land Management had also held himself out as the secretary to the Commission; and there was also no senior Samoan Judge present. Given the submissions by all counsel and the affidavit evidence from the applicants and the Commission which appear to be conflicting in several respects. I have decided not to strike out the motion for judicial review insofar as it relates to the complaints concerning the Assistant Director Land Management purporting to sit on the Commission as the deputy of the Director of Lands, Surveys and Environment. As already stated, the jurisdiction to strike out a motion for judicial review on the ground of abuse or misuse of process must be sparingly exercised and only in a very plain and obvious case. On the submissions from counsel and the material placed before the Court, I am not satisfied that there is a very plain and obvious case for striking out this particular ground of the motion for review. Further and fuller submissions are called for.
As for the complaint by the applicants that the Commission was not validly constituted because there was no senior Samoan Judge, I am of the view this complaint is plainly not valid and it should be struck out. In the first place there is no requirement in the Act that a senior Samoan Judge shall be present as a member at every sitting of the Commission in order to form a quorum. Justice Vaai who was the chairman of the Commission at its sitting to hear the claim by the second respondent is also a Samoan as well as a Judge of the Supreme Court and therefore a very ‘senior Samoan Judge’. If what the applicants mean by their complaint is that there was no senior Samoan Judge of the Land and Titles Court present, then Justice Vaai has acted as President of the Land and Titles Court on numerous occasions and presided over numerous appeal cases in that Court. Thus there was no "imbalance" in the composition of the Commission which compromised its competence or impartiality that the applicants appear to be complaining about.
Privative clause
It was submitted for the Commission that in terms of s.23 of the Land Titles Investigation Act 1966 this Court has no jurisdiction to review a decision of the Commission unless there has been a breach of natural justice. Section 23 provides:
"Subject to section 24 of this Act, each determination and order made by the Commission under section 18 or section 21 of this Act shall be final and conclusive."
Section 24 does not apply to these proceedings and it is clear that the decision by the Commission that the land in dispute is freehold land was made pursuant to s.18. Thus prima facie s.23 applies to the determination that was made by the Commission. Section 23 is the kind of privative clause that is commonly referred to as a ‘finality clause’. It purports to make a determination or order of the Commission ‘final and conclusive’ and therefore immune from any review by the Courts. This Court has dealt with privative clauses in re Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter Day Saints (2000) (unreported judgment delivered on 22 November 2000) and William Keil v Land Board & Others (2000) (unreported judgment delivered on 21 December 2000). I need not add to what I said in those judgments. What is clear is that if a person or body which performs a public function commits an error of law or jurisdictional error in coming to a decision or determination, that decision or determination is subject to review by the Courts regardless of a privative clause. Since the landmark decision of the House of Lords in Anisminic Ltd v Foreign Compensation Commission [1969] 1 A11 ER 208 virtually every error of law, including a breach of natural justice, is now a jurisdictional error which is reviewable by the Courts irrespective of a privative clause. The rule of law will be seriously at risk if the position were otherwise: see Re Gilmore’s Application [1957] 1 A11 ER 796 per Lord Denning MR at p.803. In Principles of Judicial Review (1999) by de Smith, Woolf and Jowell, it is stated at pp.99-100:
"The King’s Bench, however, held that a general finality clause was insufficient to deprive the Courts of their power to award the beneficial remedy of certiorari for patent errors of law or for jurisdictional defects, unless the right to a certiorari had itself been conferred by statute. These precedents were followed in later cases, and it became settled law that a finality clause did not restrict in any way whatsoever the power of the Courts to issue a certiorari to quash either for jurisdictional defects or for error of law on the face of the record. It was clear, furthermore, that a finality clause did not affect their power to grant a declaration that a decision or order made by a statutory body is invalid. Even such words as ‘final and conclusive’ were ineffective to abridge or attenuate judicial review."
In Judicial Review by GDSTaylor (1991) it is stated at p.68
"‘Finality Clauses’ The characteristic of these clauses is that they state decisions are "‘final and without appeal’ or ‘final and conclusive,’ or similar expressions. It has "long been held that such clauses do not prevent review for error of law, within or "without jurisdiction. That position remains unaffected by Bulk Gas Users Group v "Attorney-General [1983] NZLR 129 (CA)."
It would thus appear clear that the position contended for the Commission that its decisions are final and conclusive and therefore immune from judicial review is untenable. I am of the clear view that if the Commission had no jurisdiction to hear the claim by the second respondent because it did not have a valid quorum or if it did have a valid quorum it failed to take into account relevant factors in reaching its determination, then its determination is amenable to judicial review under the principle of illegality notwithstanding the finality clause in s.23.
Counsel for the second respondent has made some detailed submissions setting out the history and circumstances of the continuing disputes between the applicants and the family of the second respondent. I have decided that those matters should be deferred to the substantive hearing of the motion for review. Counsel would have to prepare and submit to the Court a complete record of the proceedings that was held before the Commission.
Judgment
The ground in the motion for judicial review that a senior Samoan Judge should have been present as a member of the Commission is struck out. In every other respect the strike-out motion is dismissed.
Question of costs is reserved.
CHIEF JUSTICE
Solicitors:
Leung Wai Law Firm for applicants
T Potoi-Vaai for first respondent
Kruse, Enari & Barlow for second respondent
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