Toailoa v Land and Titles Court [2004] WSSC 33 (11 May 2004)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

IN THE MATTER of ALC 5134, a decision of the Land and Titles Court
dated the 13^th July 2000.

BETWEEN

PUNAFELUTU SOLOMONA TOAILOA
of Leili, Solicitor.
Plaintiff

AND

THE LAND AND TITLES COURT
First Defendant

AND

LUAMANUVAE P. ASERA
Registrar of the Land and Titles Court
Second Defendant

AND

VAIOUGA LEVI
of Lano, Savaii.
Third Defendant

Date of: Hearing: 7 May 2004
Date of Judgment: 11 May 2004

Counsel: Mr D M Clarke and Ms Amoa for First and Second Defendants
Mr Petaia for Third Defendant
Mr P Toailoa, Plaintiff, in person

JUDGMENT OF JUSTICE A E GASKELL

[1] This matter began in 1971 when the present third defendant claimed pulefaamau over the land known as Panoa in Savaii. His claim for pulefaamau was advertised in the Savaii newspaper on 21 October 1971. It was not re-advertised. That was not in accordance with s 22 of the Samoan Land and Titles Protection Ordinance 1930, No 2. In the three months following the advertisement, no objections were lodged to the third defendant's claim. The third defendant's pulefaamau was not confirmed at the conclusion of the period for objection.

[2] In January 1987 the third defendant petitioned the Lands and Titles Court to determine the correct boundaries between the lands known as Panoa and Futiga, owned by Punafelutu Alema and others who were named as the respondents to that petition. The plaintiff in the present proceedings acted as leader of the respondents. The pulefaamau over the Panoa land was an issue in the case.

[3] The case was heard on 12 and 13 December 1995. The Court did not deliver a decision. The Deputy Registrar wrote to the parties that this was due to "unforeseen circumstances" The plaintiff spoke to the Deputy Registrar the following morning (14 December 1995) and was told that the parties would be informed when the Court was ready to deliver its decision.

[4] Having heard nothing, the plaintiff wrote to the Registrar of the Court in March 1996 asking when he might expect the decision.

[5] The Registrar replied by letter of 22 March 1996, attaching a report, dated 18 March 1996, from the Deputy Registrar of the Court. The plaintiff then found out that, at the conclusion of the hearing on 13 December 1995, the present third defendant, the then petitioner, had applied ex parte to the Registrar of the Lands and Titles Court to undertake the necessary measures to have his pulefaamau confirmed over the land at Panoa. The confirmation was granted by the Court on 23 January 1996, despite the failure of the third defendant to advertise his claim in the required manner in 1971 or since, and despite the Registrar or Deputy Registrar knowing that the pulefaamau was in issue in the case that had been heard by the Court on 12/13 December 1995.

[6] Although the plaintiff was then made aware of the position with the pulefaamau over the Panoa land, he took no further action until he wrote to the Registrar in May 2000, objecting to the confirmation of the pulefaamau and seeking a rehearing.

[7] On 19 June 2000, the Deputy Registrar sent a notice of hearing to the parties in the case that had been heard in December 1995. Although the Deputy Registrar and the plaintiff were in correspondence about the rehearing, the Deputy Registrar did not send a notice of the hearing date to the plaintiff who, not knowing about the rehearing, did not appear. A decision was given in the third defendant's favour. When the plaintiff found out that there had been a rehearing, the time for appealing the decision had expired.

[8] On 31 January 2003, the plaintiff wrote to the Registrar asking why he had not been notified of the hearing date.

[9] In February 2003, the plaintiff issued a statement of claim, seeking orders that:

"(a) The decision of the Land and Titles Court dated 13^th July 2000 be declared null and void;

(b) The confirmation by the said Court of the third Defendant's Pulefe'amau on the 23rd of January 1996 be declared null and void;

(c) The matter of dispute between the Plaintiff and the Third Defendant be reheard by the Land and Titles Court."

The plaintiff also claimed costs and general damages in the sum of $100,000 from each of the first and second defendants for violation of his constitutional rights.

[10] The grounds stated by the plaintiff in a notice of motion for judicial review he filed subsequently, are:

"(a) That the decision of the Land and Titles Court dated 13^th July 2000 was made in violation of the Plaintiffs Constitutional rights pursuant to Article 9 of the Constitution of Samoa;

(b) That the confirmation by the Lands and Titles Court of the Pulefa'amau was made in circumstances which violates the plaintiffs right under the aforesaid Article 9 of the Constitution of Samoa, and further constituted a perversion of the course of justice as the matter was already sub judice; and

(c) That the Plaintiff has suffered irreparable damage and harm resulting in a grievous miscarriage of justice. "

[11] The Attorney-General's Office, on behalf of the first and second defendants, applied to have the plaintiff's statement of claim and notice of motion for judicial review struck out. In the amended strike out application, the grounds given for the application were: "that the plaintiff's notice of motion and statement of claim were frivolous, vexatious and an abuse of process". In the alternative, the first and second defendants applied for the plaintiffs claim for damages to be struck out.

[12] The third defendant also applied for the plaintiff's notice of motion and statement of claim to be struck out on the grounds that they disclosed no cause of action, were an abuse of process and were harming the good relationship between the parties. It was from the affidavit filed in support of the third defendant's application in May 2003, that the plaintiff discovered that the Land and Titles Court had issued a Minute at the conclusion of the hearing in December 1995. Although the Deputy Registrar was instructed to advise the parties of the court's view, he did not tell the present plaintiff. That Minute is also important for noting that "the case is really about reviewing of pulefaamau over Pagoa land which there is already a pulefaamau on".

[13] On the hearing of the present application, Mr Clarke for the Attorney-General submitted that the Court should, in its inherent jurisdiction, strike out the plaintiffs claim because it was vexatious, frivolous, or an abuse or misuse of the Court's process. That the Court has such an inherent jurisdiction was confirmed by The Honourable CJ Sapolu in Pouniu v Land Titles Investigation Commission [2003] WSSC 5 (3 March 2003).

[14] Mr Clarke submitted that the plaintiffs "current proceedings ... did not constitute judicial review". Mr Clarke based that submission on three grounds.

[15] The first ground was that the Lands and Titles Court is not, in the context of judicial review, an inferior Court and therefore its decisions are not amenable to judicial review in the Supreme Court. Mr Clarke, in his otherwise careful submissions, did not refer to a decision in this Court in the case of Aloimaina Ulisese & Anor v Lands and Titles Court Tuasivi (unreported, Supreme Court of Western Samoa, 4 November 1998, Justice R L Young); where that very point was in issue. His Honour, after an analysis of the relevant law concluded that "for the purpose of review proceedings the Lands and Titles Court is an inferior Court". I do not intend to repeat His Honour's analysis of the relevant provisions. I respectfully agree with the conclusion he reached and adopt his reasoning.

[16] Mr Clarke's second ground was that s 71 of the Lands and Titles Act ousts the jurisdiction of the Supreme Court to entertain review proceedings. Section 71 provides:

"Decisions and orders not reviewable by other Courts –

Subject to this Act, no decision or order of the Court shall be reviewed or questioned in any other court by way of appeal, prerogative writ or otherwise howsoever."

[17] Mr Clarke invited the Court to find that it was "contrary to the letter and spirit" of s 71 to allow judicial review of Land and Titles Court decisions. In re Ulisese, Mr Latu, who appeared as counsel for the Attorney-General, properly conceded, at the outset of the hearing of the Attorney-General's application to strike out Mr Ulisese's claim, that:

"(1) The Constitution of Samoa is the Supreme Law of Samoa and any law inconsistent with it is void.

....

(3) The Supreme Court is the sole body charged with enforcing those fundamental rights (Article 4) and

(4) Section 71 of the Lands and Titles Court does not preclude Supreme Court jurisdiction to enforce any of these fundamental rights guaranteed under Part Il of the Constitution where a breach of those rights is alleged and established; and

(5) The Supreme Court has jurisdiction to hear and determine and make appropriate orders sought by the plaintiff insofar as they relate to established breaches or infringements of fundamental rights under Part II of the constitution."

[18] I hold, as Justice Young did before me in re Ulisese, that:

"The Supreme Court ... can review decisions of the Lands and Titles Court where it is established that the Lands and Titles Court has breached Part II of the Constitution as to the fundamental rights of a litigant".

[19] The reason for that is that the Land and Titles Court's exclusive jurisdiction, as provide in s 34 of the Act, is subject to Article 4 of the Constitution. That was confirmed in re Tapu Aeau Lafaialii & Ors v Attorney-General & Ors [2003]. Mr Clarke seemed to accept that, despite his arguments about the 'letter and intent of s 71'. He submitted that the Land and Titles Court's exclusive jurisdiction is reviewable only to the extent provided for in Article 4, that is, that the Supreme Court on judicial review is confined to making "such orders as may be necessary and appropriate to secure to the applicant the enjoyment of any of the rights conferred under the provisions of this Part". I accept that is correct.

[20] In reaching that conclusion, I am not making any ruling as to whether s 71 of the Land and Titles Act ousts the jurisdiction of the Supreme Court to review decisions of the Land and Titles Court, where the allegations fall outside breaches of the fundamental rights protected in Part II of the Constitution of Samoa.

[21] Mr Clarke's third ground (in support of his submission that the plaintiff's present proceedings do not constitute judicial review) was that the form of the application does not comply with Article 4(1), which provides:

"Any person may apply to the Supreme Court by appropriate proceedings to "enforce rights conferred under ... this Part" which includes Article 9(1) protecting the right to a "fair and public hearing" ... by "an independent and impartial tribunal"..."

[22] In Mr Clarke's submission, the plaintiff's notice of motion for judicial review did not qualify as "appropriate proceedings".

[23] In making that submission he relied on a passage from the judgment in re Pouniu referred to above, where The Honourable CJ Sapolu held:

"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 (b) by quashing order, often sought in the form of certiorari, to quash. Where appropriate, both remedies maybe sought in the same motion or application for judicial review."

[24] In Ulisese, Young J held at p 10:

"Review proceedings are properly left for the specific remedies they have historically covered."

I note that that includes mandamus, prohibition, certiorari, declaration or injunction: s 4 Judicature Amendment Act.

[25] Review is available regardless of appeal rights.

[26] In Ulisese, the plaintiffs sought an order for the rehearing of the original proceedings in the Land and Titles Court and damages for the consequences of the orders made by that Court in breach of Article 9.

[27] His Honour Justice Young held that it was inappropriate for the plaintiff to bring judicial review proceedings on the grounds sought, as such allegations could have been adequately contained in the Statement of Claim. He directed the plaintiff to amend his pleadings accordingly. He refused the defence application for strike out.

[28] In the present proceedings, the plaintiff initiated his claim by way of a statement of claim. - That was in accordance with the approach taken in Ulisese. However, when the case was first mentioned, The Honourable CJ Sapolu directed the plaintiff to file a Notice of Motion, that being the correct procedure to apply for review.

[29] Against that background, I am not prepared to rule that it is inappropriate to bring the proceedings in their present form. I take the view that if there is some procedural defect or inadequacy, then that should not affect this Court's conclusions on the substance of the claim.

[30] The plaintiff says that from the beginning (that is, from the time of the hearing by the Land and Titles Court on 12 and 13 December 1995), his rights under Article 9(1) have been breached. The plaintiff asks this Court to enforce his right to a fair and public hearing by an independent and impartial Tribunal.

[31] Ordering a rehearing can be a necessary part of ensuring that he is afforded his constitutional rights.

[32] I find that the plaintiff's action comes within the proper ambit of Article 4 and that the proceedings are not inappropriate. I therefore reject Mr Clarke's submission that they claim does not constitute judicial review.

[33] Mr Clarke next asked the Court to consider the affidavit evidence filed on behalf of the first and second defendants and to conclude that it supported the Attorney-General's application to strike out the plaintiffs claim and notice of motion for judicial review as frivolous, vexatious and an abuse of process.

[34] When the court is dealing with an application to strike out under the Rules, that is, an application alleging that the pleadings disclose no cause of action, the Court must assume that the facts pleaded are true and undisputed. However, when the court is dealing with an application to strike out under its inherent jurisdiction (as in this part of the Attorney-General's argument), the Court may inquire into all the facts and circumstances of the case, and, for this purpose, affidavit evidence is admissible. (Hals. Laws of England, 4th ed, Vol 7,5435)

[35] While the Court can properly consider the material in the many affidavits that have been filed, where there is a dispute on a matter of fact, it is not appropriate for the Court, on hearing a strike out application, to decide issues of fact on the basis of affidavit evidence. That is for the Judge hearing the substantive proceedings.

[36] Mr Clarke submitted, on the basis of the affidavit evidence, that the plaintiff has no bona fide cause of action or grievance. He points to the plaintiff's failure to petition the Land and Titles Court formally to hear the issue of pulefaamau over the land at Panoa, to his delay in along action once he was told that the third defendant's pulefaamau had been confirmed, and to his delay in seeking a rehearing. Mr Clarke invites the Court to treat the plaintiff's actions as a failure to enforce his rights and to conclude that his present proceedings are vexatious, frivolous and an abuse of process.

[37] Mr Clarke submitted that this Court could solve the central issue between the parties by ruling that the Land and Titles court validly exercised its powers in confirming the third defendant's pulefaamau in January 1996, despite the third defendant's failure to comply with the prerequisite that such a claim be advertised twice, that is, in two consecutive weeks. The third defendant had lodged only one advertisement and that was in 1971. The pulefaamau was an issue between himself and the plaintiff in the hearing before the Land and Titles Court in December 1995, as is apparent from the Minute issued by the Court at the conclusion of the hearing. As soon as the hearing was over the third defendant lodged an ex parte application for confirmation and the Court granted it the following month.

[38] While I accept that this Court may hold that the Land and Titles Court validly exercised its 'power to confirm the third defendant's pulefaamau despite non-compliance with the statutory prerequisites, it is not appropriate in the circumstances of this case, as set out above, to do so. In my view, if this Court took such a step in the hearing of the present application, it could be seen as compounding the alleged lack of fairness and lack of right to be heard that has characterised this dispute since December 1995, according to the plaintiff's pleadings. The plaintiff may well have been dilatory in pursuing the matter, but that does not bar him from seeking to have his rights recognised or enforced, if he can prove that they have been breached.

[39] I note that the Court's power to strike out proceedings under its inherent jurisdiction is discretionary. It is a jurisdiction that should be exercised with great circumspection and only where it is perfectly clear that the plea cannot succeed. It ought to be exercised sparingly and only in exceptional circumstances. (Hals Laws of England, 4th ed, Vol 7, 5435)

[40] This is not such a case. What the plaintiff describes about the conduct of this dispute is a matter fit to be investigated, and I therefore dismiss the defendants' applications to strike out the plaintiff's pleadings as vexatious or frivolous or as an abuse of process.

[41] In the alternative, the Attorney-General applies for strike out the plaintiff's claim for damages against the first and second defendants for violating his rights. The ground advanced in support is that the Supreme Court's powers on review are limited to the powers set out in Article 4(2) of the Constitution, that is: "... to make all such orders as may be necessary and appropriate to secure to the applicant the enjoyment of any of the rights conferred ..." under Part II of the Constitution.

[42] Damages are not usually available in judicial review. I accept that they are not available on a reading of Article (4)(2).

[43] In the plaintiffs statement of claim there is presently no cause of action giving rise to damages. Unless there is such a cause of action, a prayer for relief in damages cannot stand. That is the position on the plaintiff's present pleadings. The plaintiffs claim for damages is struck out.

Conclusion:

[44] The first, second and third defendants' applications to strike out the plaintiff's statement of claim and notice of motion for judicial review in the exercise of the Court's inherent jurisdiction are dismissed.

[45] The first and second defendants' application in the alternative to strike out the plaintiff's claim for damages under Rule 10 is allowed. There is an order accordingly.

[46] The first and second defendants are to file a statement of defence to the plaintiff's claim within 14 days of today's date.

[47] The parties should work towards a possible hearing date in July when, I am told, there will be another Judge from New Zealand sitting here.

[48] The costs of this application are reserved.

JUSTICE GASKELL