Tupua v Samoa Tel Ltd [2009] WSSC 26 (12 March 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

FUIMAONO FERETI TUPUA for himself and for the successors of Tupuola Faitala Tupua (deceased) of Alafua, translator of Alafua.
Plaintiff

AND:

THE SAMOA TEL LIMITED a company incorporated and carrying on business in Samoa.
First Defendant

AND:

THE ATTORNEY GENERAL, in the right of the Ministry of Natural Resources and Environment.
Second Defendant

Counsels: Mr TK Enari for the plaintiff
Mr P Fepuleai for the first defendant
Ms M Betham for the second defendant
Mr LT Malifa for the intended third party

Hearing: 12 March 2009

Judgment: 12 March 2009

JUDGMENT OF NELSON J. (third party application)

The history of these proceedings is set out in the earlier judgment of the court dated 28 January 2009.

For decision today is the application by the Intending Third Party being the heirs of Fonoti Ioane Brown to be joined as defendants to the two matters presently before the court. The application is opposed by the plaintiff and the Attorney General who acts for the Natural Resources and Environment Ministry. Counsel for SamoaTel has participated in today's proceedings but has indicated his role is a watching brief only.

The Intending Third Party argues that they are the true beneficial owners of the lands involved in the proceedings before the court. They rely on LC1186 P4-7 &14 a decision of the Lands & Titles Court dated 6th October 2000 whereby the pule of customary land known as "Oliula" was awarded to them. They say that Oliula includes both Mt. Fogalepulu and Fepi’opi’oa’i which are the lands involved in the proceedings before the court. They produced a certified copy of LC1186 P4-7 & 14 as well as a certified copy of a plan from the Lands & Titles Court, a plan which they say shows that both these lands are part of the larger parcel of 1,380 acres that parcel being Oliula.

The affidavit in support of their application details numerous efforts by members of the Brown family to have their claims to the lands recognized by the Lands and Environment Ministry and enforced by the Lands & Titles Court. Efforts which to date have not been successful. They now seek their status and entitlements to be recognized and enforced by this court.

In reply to the application the Attorney General with whose position plaintiffs counsel unreservedly agrees have filed a very succinct and brief written submission with supporting authorities for which the court is very grateful. In it they point to the Taking of Land Act 1964 as being the legislation authorizing the taking of land customary or freehold for a public purpose, see section 7 thereof which provides:

"Customary land and freehold land required for any public purpose may be taken by the Head of State acting on the advice of the Minister (of Lands, Surveys and Environment – s.2) under the provisions of this Act."

The procedure for taking of freehold land is dealt with by section 14, the procedure for taking of customary land by section 14A. Section 15 deals with the taking process. Other relevant sections are section 22 dealing with the situation of taken land not being required for the purpose for which they were acquired, this provides Government may sell or declare it to be public land under the Land Ordinance and section 23 permitting the Government to lease such land on specified terms and conditions.

For present purposes the pivotal provision is s.15 of the legislation. That relevantly provides:

"(1) ....The Head of State, acting on the advice of the Minister, may by Proclamation, describing the land and stating the public purpose, take the land for the public purpose.

(2) On a day to be named in the proclamation the land therein described shall unless otherwise specially provided in this Act or in the Proclamation become absolutely vested in Samoa, discharged from all mortgages, charges, claims, estates or interest of what kind so ever, for the public purpose stated in the Proclamation.

(3) The Proclamation shall be gazetted and publicly notified as soon as possible after it is made, but the Proclamation shall not be invalidated by any error, defect, or delay in publication."

Emphasis should be given to the words in s.15 (2) "become absolutely vested in the state free from all claims, estates or interests whatsoever."

The Governments affidavit in support details the procedure followed by the Lands Ministry in taking the customary lands in this matter in due compliance with these legislative requirements. The end result was a proclamation dated 9 January 1988 executed under the hand of the then Head of State Malietoa Tanumafili II which proclamation was duly registered in the Samoan Land Register on 10 May 2005 as required by section 17 of the Act. I agree with Attorney Generals counsel that the delay in registration has no effect on the validity of the proclamation. And while there may be some issue with regard to the gazetting and publication requirements of section 15(3), this would appear to be no more than a mere formality not affecting in any way the title conferred by section15(2).

I am compelled to agree with counsel for the Attorney General. Her argument is a slam-dunk as the terms of s.15 (2) are clear and unambiguous. Title to the customary land was vested absolutely in the state as of 9 January 1988 when the proclamation was signed by the Head of State. And it was vested free from all claims, estates or interests of any kind whatsoever. From that date the customary land status of these lands ceased to exist by operation of law subject only to the constitutional requirement in Article 14 of the Constitution for payment of compensation for compulsorily acquired land. As at the date of the proclamation the land became vested absolutely in the State. It became public land pursuant to Article 101(4) of the Constitution. That being the case the inevitable conclusion is that neither the Intending Third Party nor the Plaintiff can claim legal title in respect of the lands in question and that accordingly the application by the Intending Third Party cannot succeed.

I am bound to observe however that does not leave the Intending Third Party without a remedy. Section 15A of the Taking of Land Act establishes a procedure whereby a matai claiming pule over customary land taken by proclamation to have access to the Lands & Titles Court for that court to determine which matai has true pule over the land. That is as it should be because the customary land court is the proper place for determining beneficial ownership of customary lands. It is conferred exclusive jurisdiction in that regard by Article 103 of the Constitution and the Lands & Titles Act 1981. There would seem in my respectful view no impediment to the Intending Third Party availing themselves of the section 15A procedure because s.15A(b) uses the words "whether or not within the said period of twenty eight (28) days" the 28 day period being the period fixed by s.14A for lodging objections to a proposed taking of customary land. But that is a matter for counsel for the Intending Third Party and his client to consider.

Accordingly the formal orders that will issue today are as follows:

1. The Intending Third Party's application for joinder is dismissed. As no costs have been sought or pursued there will be no order as to costs.
   
2. The Attorney General is to file within 14 days a Statement of Defence to the Statement of Claim dated 21 December 2007 which cites the Attorney General as sole defendant on behalf of Resources and Environment Ministry.
   
3. The Plaintiff is to file within 14 days their Statement of Defence to the Counterclaim from the Attorney General dated 15 January 2009 annexed to their Statement of Defence filed in respect of the second of the two proceedings involving SamoaTel and the Attorney General as defendants.
   
4. Both proceedings are adjourned to the mention list of 6 April 2009 to set a date for hearing of the remaining substantive issues.
   

JUSTICE NELSON