Alii and Fapule of Siumu District v Attorney General [2010] WSSC 9 (26 February 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

ALII AND FAIPULE OF SIUMU DISTRICT
Plaintiffs

AND:

ATTORNEY GENERAL OF SAMOA
Defendant

Counsels: Mr H.Keyte & Ms O. Woodroffe for plaintiff
Ms S. Rimoni for defendant

Decision: 26 February 2010

DECISION OF NELSON J.
(Second Motion to Strike Out)

Counsel for the Attorney General has appeared but counsel for the plaintiffs has not entered an appearance either personally or through an agent, however there is an attendance of representatives of the plaintiffs in this matter.

Firstly, I would like to apologise to the parties for the delay in issuing this decision. This is due to factors beyond the courts control and the need to give priority to more urgent matters last year. Rather than delaying issuing a decision further, I will read out the judgment orally but typewritten copies will be made available to the parties and also to the lawyers in due course. The final judgment will be more detailed but the oral judgment contains the basic reasoning for the courts conclusions. It is a lengthy judgment gentlemen and a lot of it is technical legal material, if we translate it all we will be here until 8.00 o’clock tonight. I therefore propose just to read the English version into the record for transcribing and only translate the end part or the "faaiuga" which I am sure is what you are all more interested in.

The proceedings:

[1] Following the courts judgment dated 20 August 2007 in respect of the defendants first motion to strike out, the plaintiffs filed an amended statement of claim dated 5 October 2007. The defendants now seek to strike out that claim on the grounds that:

(a) because of the recent Court of Appeal decision in Siaaga and others v O.F.Nelson Properties Limited [2008] WSCA 14 (hereinafter "the Palauli Case" or "Palauli"), it is alleged the plaintiffs have no cause of action against the defendant; and

(b) in any event, the plaintiffs have failed to comply with the courts directions in its judgment of 20 August 2007 relating to certain aspects of their claim and the amended statement of claim is accordingly defective and should be struck out.

[2] The defendants first argument rests primarily on the proper interpretation of the Court of Appeal decision in Palauli. They say the Court of Appeal in that case following a full and substantive hearing in the Supreme Court, recognized the validity at the material time of colonial Germany’s regime in Samoa and the validity of decisions of the courts and institutions of that regime; that accordingly the Final Act of the Conference on the Affairs of Samoa held in Berlin in 1889 ("the Berlin Act") was valid and applicable law in Samoa, it having been assented to by King Malietoa on behalf of the Government and people of Samoa; and that pursuant to that exercise of sovereign power, any and all native title to the customary lands in issue in these proceedings and belonging to the natives of Siumu was validly extinguished by the relevant decisions of the Samoa Land Commission and the Samoa Supreme Court established pursuant to the said Berlin Act.

[3] The defendants second argument relates specifically to directions given by the court as part of its judgment on the first strike out motion and the plaintiffs alleged failure to comply with same.

[4] The plaintiffs in response say firstly that the Court of Appeal did not decide the Berlin Act was valid law, that what it did decide was that Germy was only sovereign over Samoa from 1 March 1900 to 1 May 1920 when the Samoa Constitution Order came into force, a period the Court of Appeal referred to as the ‘German Protectorate’, and because the central agreements in the Palauli Case occurred within this period, viz, 18 August 1907 and 20 March 1912, Palauli is distinguishable on its facts. In the present case, the relevant transactions and court decisions occurred before 1 March 1900 i.e. before Germany became sovereign in Samoa. They submit the issue of sovereignty in Samoa over the 1890–1900 period remains an open question and the Berlin Act was not the applicable law of the time. They say the Samoan Government was still sovereign in relation to domestic laws affecting Samoans and the Berlin Act was ineffective as it had not been assented to by the Samoan Government or had been otherwise validly incorporated into Samoan domestic law.

[5] In relation to the defendants second argument, the plaintiffs maintain they have complied with the relevant directions and they relate point by point in their submissions how they have done so.

[6] It is apparent that interpretation of the Court of Appeal decision in the Palauli Case is at the heart of the present proceedings, for if the defendants succeed in their argument, the validity of the Court Grants issued by the Samoa Supreme Court in relation to the lands in these proceedings and the defendants consequent title thereto are in the words of the Court of Appeal "now unchallengeable". I note the thrust of the amended statement of claim as with the original claim filed by the Alii and Faipule of Siumu is a challenge to the transactions and decisions that were made during the German administration and no basis is laid out in the amended statement of claim for separately challenging the devolution of title from the original registered purchasers to its present owners the Government of Samoa as represented by the defendant. Before undertaking such an analysis, a brief reference to the applicable principles of a Strike Out Motion would be in order.

The Law:

[7] The principles upon which the courts discretion to strike out is exercised have been stated in many previous decisions and it is unnecessary to canvass them in any detail. They were covered extensively in the courts earlier judgment, see page 5 onwards and essentially the jurisdiction will be exercised sparingly and only where it is plain and obvious that the plaintiffs case is so untenable that it cannot possibly succeed. These principles were recently restated by Sapolu Chief Justice in Alii and Faipule of Satapuala v Attorney General [2008] WSSC 88, paragraphs 4 to 11.

The Palauli Case at first instance:

[8] The Palauli Case was an action in trespass initiated by the respondent company as registered legal proprietor of a parcel of freehold land situated in Palauli in the island of Savaii. In response the Alii and Faipule of Vailoa Palauli as appellants pleaded that the land was customary land still belonging to the village. Briefly, the relevant facts were that the respondents title was said to be based on a sale of the lands in 1872 by a Palauli matai to a European named Wilson. By deed in 1886, Wilson gifted the land to his children and in 1891 following passage of the Berlin Act, he lodged on their behalf with the Samoa Land Commission set up by that Act, a claim to title to the lands.

[9] There was no dispute as is the case here that the avowed purpose of the 1889 Berlin Act was to prohibit "all future alienation of lands in the islands of Samoa to the citizens or subjects of any foreign country whether by sale, mortgage or otherwise" so that "native Samoans could keep their lands for cultivation by themselves and their children after them." Its further purpose was "to adjust and settle all claims by aliens of titles to land or any interest therein": article 1V, sections 1 and 2. The mechanism by which this was to be done was for aliens to lodge their claims with the Samoa Land Commission whose duty it was "to investigate all claims of foreigners to land in Samoa, whether acquired from natives or from aliens, and to report to the Supreme Court of Samoa in every case the character and description of the claim, the consideration paid, the kind of title alleged to be conveyed and all the circumstances affecting its validity": section 4 of article 1V. In particular the Land Commission was required to report:

"(a) Whether the sale or disposition was made by the rightful owner or native entitled to make it;

(b) Whether it was for a sufficient consideration;

(c) The identification of the property affected by such sale or disposition."

By section 5 the Commission was mandated where required "to effect a just and equitable compromise between litigants" and also to report to the Court "whether the alleged title should be recognized and registered or rejected, in whole or in part, as the case may require". Pursuant to section 6, all disputed claims had to be submitted by the Land Commission to the Supreme Court "together with all the evidence affecting their validity and the court shall make final decision thereon in writing which shall be entered on its record". By section 7, the Supreme Court was required to make provision "for a complete registry of all valid titles to land in the islands of Samoa which are or may be owned by foreigners". Thus was birthed the Court Grant system and our deeds title registry.

[10] In 1894, Wilsons claim to some 6,000 acres of Palauli land was objected to by an orator of Palauli and following investigation by the Land Commission, a compromise was agreed upon whereby the Commission confirmed Wilsons claim but only in respect of 1,500 acres. On this basis, the Palauli orator withdrew his objection. In 1896 the children of Wilson transferred 350 acres to a third party in settlement of a debt belonging to their father leaving a balance of 1,150 acres. The land confirmed by the Land Commission was transferred by the children back to their father. A survey of the confirmed land was then carried out and in 1897, the Supreme Court of Samoa issued Court Grant 721 to Wilson but for an area of 563 acres only. In 1901, Wilson sold his land to Moors who maintained the survey was incorrect and that what he actually purchased was 1,150 acres. Court proceedings resulted in 1905 between Moors and the Alii and Faipule of Palauli in the German Imperial District Court over boundaries. That court found Moors was entitled to 563 acres only as per Court Grant 721 and in 1906, Moors appealed the decision of the Imperial District Court. But the appeal did not proceed to a hearing because on 18 August 1907 and 20 March 1912, two pivotal meetings occurred before District Court Judge Dr. Sohubert involving inter alia Moors and representatives of the Alii and Faipule of Palauli. It was there agreed to give Moors another 587 acres to make up his 1150 acres but 200 acres was divided off the original Court Grant and transferred to the Government to hold for the people of Palauli thus leaving a residual grant of 950 acres to Moors. This arrangement was sanctioned by court agreement presumably under the hand of District Court Judge Dr. Sohubert and subsequently these lands made their way physically and legally into the hands of the respondent company.

[11] The respondent’s argument in Palauli was that it obtained good and valid freehold title to the land, title which has been preserved by legislation down to the present time. The appellants arguments were very similar to those relied on by the plaintiffs in the present proceeding. They were that the sale to Wilson was fraudulent as the original seller did not have the consent of the Alii and Faipule of Vailoa Palauli which was required by the custom of the day, and that all subsequent sales were tainted by this fraud and should be vitiated and the land accordingly remains customary land vested in the appellant. Alternatively it was argued there was no proper consideration paid for the lands neither were the lands properly identified by survey and that all purported sales were therefore void for mistake, illegality and/or uncertainty.

[12] At first instance Sapolu Chief Justice found that in 1872 as now, the holder of a matai title has exclusive pule and authority over lands pertaining to his or her title. And if he/she wishes to alienate such lands by way of lease or license (sale no longer being an option available at law), he/she does not require the prior approval of the Alii and Faipule of the village wherein the lands are situated. There was, and as a Samoan matai I am in respectful agreement with the Chief Justice, is no such customary requirement as asserted by the Alii and Faipule in respect of lands held under the pule of a matai title. That being so, there was no fraud in the sale In addition, judicial notice can probably be taken of the historical fact that in mid-19th century Samoa, village councils as such did not exist This is why individual matais were able to sell lands pertaining to their title, an event that was common place at the time. Hence the need for a piece of legislation such as the Berlin Act to safeguard the wholesale alienation of our native lands to foreigners. Were it not for that legislation, Samoa may well have gone the way of many other countries and colonies. Hence also why the objection lodged by the orator of Palauli was not on behalf of the Alii and Faipule of Palauli but on behalf of the "faleao" of Palauli, which is a different customary entity altogether. Hence also why the objections lodged to the original sales in this case according to the plaintiffs pleadings was by individual matais and families, none of which claimed to represent the Alii and Faipule or similar organisation.

[13] It must also be noted that neither was there any other evidence that the compromises which led to Court Grant 721 and the subsequent transfer of title by court agreement of the balance of the land to Moors were fraudulently conceived or effected. In the words of the Chief Justice, it was accordingly therefore not open to the appellants "to relitigate issues that had already been settled between their forefathers and Moors by court decision of 1906 and court agreement of 1907 and 1912. The matter had long been settled." The Supreme Court accordingly upheld the transfer of title to the respondents.

The Palauli case on appeal:

[14] The proceedings were taken on appeal by the Alii and Faipule of Palauli resulting in the judgment the parties now place different interpretations upon. It is therefore necessary to consider what the Court of Appeal found and said in the Palauli Case.

[15] The judgment relevantly begins with an analysis of the six eras of Samoa constitutional law. It begins with the period of indigenous rule prior to establishment of the first government of the country in 1881 under King Malietoa Laupepa as a settlement of the then prevailing wars. The court accepted that for this period, what was custom should be recognized as law because for all intents and purposes, custom served to provide "the practical function of law in indigenous societies. The consequence must follow that the courts of Samoa itself including this court will attribute (legal) status to such custom": see paragraph 5 of the decision. The real question is what was the relevant custom that prevailed at the time? And on this issue the parties were in conflict, the Alii and Faipule saying that custom required their consent to any sale of customary or native land, and the respondent arguing that the matai pule extended to the unfettered power to sell native land under his titular control. The court noted that the events of this era included the purported sale in 1872 of the land in question to the European named Wilson.

[16] This was followed by the period of the government of King Malietoa from 1881 to the enactment of the Berlin Act in 1889. Relevant transactions during that period included confirmation of the sale to Wilson by various paramount chiefs of the district, again without any reference to the Alii and Faipule. The court went on to note the competing arguments of the parties and quoted a passage from the judgment of Brennan, J. in the leading case of Mabo v State of Queensland (No.2) [1992] HCA 23; (1992) 175 CLR 1, 58. Given its significance the passage is reproduced herein:

"Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as a matter of fact by reference to these laws and customs.......... the rights and interests which constitute a native title can be possessed only by the indigenous inhabitants and their descendants. Native title, though recognized by the common law, is not an institution of the common law and is not alienable by the common law. Its alienability is dependent on the laws from which it is derived. If alienation of a right or interest in land is a mere matter of the custom observed by the indigenous inhabitants, not provided for by law enforced by a sovereign power, there is no machinery which can enforce the rights of the alienee. The common law cannot enforce as a proprietary interest the rights of a putative alienee whose title is not created either under a law which was enforceable against the putative alienor at the time of the alienation and thereafter until the change of sovereignty or under the common law."

(The line in italics was omitted I assume inadvertently from the Court of Appeal quotation)

[17] There followed the period of tripartite government involving Britain, Germany and the United States of America. The Court of Appeal referred to this time as the ‘Condominium’ period and it began in 1889 with the passing of the Berlin Act creating a Land Commission, a Supreme Court and the office of Chief Justice responsible for adjusting and settling all claims by aliens to land in Samoa. The statute became law when it was assented to by King Malietoa on behalf of the Government of Samoa on 19 April 1890. I have earlier in this judgment referred to the intent and mechanics of the relevant parts of the Berlin Act.

[18] Following this came the period of the ‘German Protectorate’ from 1 March 1900 when Germany acquired sole sovereignty over Samoa. This extended to the passage of the Samoa Constitution Order on 1 May 1920 during the period of New Zealand administration of Colonial Samoa. The court noted the Land Commission proceedings that occurred during that period and the Land Commission report to the Supreme Court confirming 1,500 acres of Wilsons claim subject to survey, a land area subsequently reduced to 1,150 acres after deduction of the 350 acres for the Wilson debt to the third party. The court further noted the issuance of Court Grant 721 for 563 acres and the subsequent German Imperial District Court proceedings between Moors and the Alii and Faipule of Palauli which led to the compromises of 18 August 1907 and 20 March 1912 before Dr. Sohubert which netted Moors title to 950 acres. As noted by the court, a feature of these proceedings is Court Grant 721 was never challenged by the Alii and Faipule and the balance of the land acquired by Moors was with the consent of the Alii and Faipule as recorded by the court agreements of 1907 and 1912 before Dr. Sohubert.

[19] The two remaining eras of constitutional law was the period of New Zealand Trusteeship from 1920 up till Independence on 1 January 1962 and post-independence self government. Transactions also occurred during those periods leading to the inherited title of the respondent company.

[20] The decision then went on to discuss the issue of classification of land and endorsed the conclusion of the Chief Justice that customary land is an expression derived from the Constitution to describe what was previously known as "native land" or "Samoan land". These of course are but European translations of what in our native tongue has probably remained unchanged throughout the ages, and denoted by the expressions "fanua Samoa/fanua tau Samoa" or "fanua fa’a-le-aganuu" (Samoan land or land held in accordance with Samoan custom and tradition). The court went on to note that it would be inconsistent with the Constitution and the common law presumption against restrospective effect for the statutory inalienability of such land, as contemplated by the Berlin Act and legislation since 1920, to be read back into the previous law. The Constitution itself by its recognition of the concept of freehold land presupposes that at some stage such land was alienable, that is that native or customary title to such land could by an appropriate mechanism be extinguished. As stated by Brennan, J. in Mabo (No.2) at paragraph 83:

"The rights and privileges conferred by native title were unaffected by the Crown’s acquisition of radical title but the acquisition of sovereignty exposed native title to extinguishment by a valid exercise of sovereign power inconsistent with the continued right to enjoy native title.

Where the Crown has validly alienated land by granting an interest that is wholly or partially inconsistent with a continuing right to enjoy native title, native title is extinguished to the extent of the inconsistency. Thus native title has been extinguished by grants of estates of freehold or of leases." (emphasis mine)

[21] The Court of Appeal decision in Palauli then enters its most important and for present purposes controversial phase. The court found it unnecessary to decide on the question of what was the custom of the day and what was the scope of authority of the matai who purportedly sold the native lands pertaining to his title. Because it found that there was no answer to the respondents argument that the settlements reached in the meetings of 1907 and 1912 was to confirm Moors claim to the 950 acres, comprising part Court Grant and part transfer by agreement of the appellants. The court seemed to take the view that these settlements were what precluded the appellants from now challenging the respondents title.

[22] Certainly that is the view advanced by the plaintiffs in this case. They argue that is what the Court of Appeal decided and that the crucial period is the time of the German Protectorate stated to be from 1 March 1900–1 May 1920. It was during that period that the settlements of 1907 and 1912 occurred and as the present proceedings do not relate to that period, the Palauli Case is different and is therefore distinguishable on its facts. The Siumu transactions are pleaded as having all occurred before 1 March 1900.

Decision:

[23] I am in agreement with the plaintiffs but not completely. Firstly Palauli is not a case confined to the events of 1907 and 1912. It has its origins in a sale occurring in 1872 which became the subject of a Land Commission claim in 1891. The claim was objected to by an orator of Palauli and following investigation a compromise was effected and in 1894 the Land Commission confirmed part of the claim. A survey of the land was then undertaken and in 1897 in accordance with the then law a Court Grant from the Samoa Supreme Court was issued but only in respect of a smaller parcel of land namely 563 acres. It is clear from the judgments of both the Supreme Court and Court of Appeal that the reduction in area was due to an incorrect survey of one of the property boundaries and subsequently by agreement amongst the parties, the appellants by their settlement in 1907 and 1912 gave up an area of land equivalent to what had been lost to make up the original area approved by the Land Commission; subject only to the return of 200 acres from the original Court Grant property to the people of the district.

[24] It is unrealistic to say that in this background the Court of Appeal in Palauli focused solely on the effects of the 1907 and 1912 settlements and the law that then prevailed. The decision itself under the heading ‘German Protectorate’ recites all the relevant prior history of the property.

[25] I accept however that the Court of Appeal decision was in final analysis that the appellants were estopped from denying the respondents title because of the agreements of 1907 and 1912. There are three crucial paragraphs in the decision that reflect this:

Paragraph 14 – which is headed "The German determination decisive".

There the court says that there is no answer to the respondents argument that at these meetings, it was agreed by the appellants the Moors claim to 950 acres be confirmed;

Paragraph 19 - which says that the transactions before the German courts giving effect to the agreements "provide a definitive answer". The transactions here referred to must mean and refer to what happened before District Court Judge Dr. Sohubert and the German Imperial District Court; and

Paragraph 20 - last line where the Court of Appeal says:

"We accept as a valid root of title the grant by the representative of the people formally recorded by the representatives of the regime then exercising legal authority. It follows in our judgment that the transaction endorsed by Judge Dr. Sohubert is now unchallengeable."

[26] However in my respectful view the Court of Appeal judgment in Palauli goes further than that: the court refused to be drawn into the debate of what was the prevalent custom of the day and whether the consent of the Alii and Faipule was required to a sale of a matais land pertaining to his title, preferring instead to rest its decision on the agreements to which the Alii and Faipule of Palauli were party in 1907 and 1912. But the judgment endorses the conclusions of Brennan, J. in Mabo quoted in paragraph 17 of the decision:

"Sovereignty (in the Samoan situation, colonialisation) carrries the power to create and to extinguish private rights and interests in land within the Sovereign’s territory. It follows that on a change of sovereignty, rights and interests in land that may have been indefeasible under the old regime become liable to extinction by exercise of the new sovereign (i.e. colonial) power. The sovereign power may or may not be exercised with solicitude for the welfare of indigenous inhabitants....

However, the exercise of a power to extinguish native title must reveal a clear and plain intention to do so, whether the action be taken by the Legislature or by the Executive. This requirement which flows from the seriousness of the consequences to indigenous inhabitants of extinguishing their traditional rights and interests in land, has been repeatedly emphasized by courts ............. That approach has been followed in New Zealand in Te Weehi v Regional Fisheries Officer [1986] NZHC 149; [1986] 1 NZLR 680 (subsequently applied in cases such as Proprietors of Parininihi v Ngaruahine Iwi [2004] 2 NZLR 201). It is patently the right rule..."

[27] These statements of general principle have application not only to the period of the agreements, the post-1900 period or the period of the German Protectorate as it was referred to by the court but also apply to the period referred to in the judgment as the time of the Condominium. This is the time prior to 1900. A time which the court in the course of its survey of the 6 eras of Samoan Constitutional law described as being when the applicable law was:

"The law of the period of the British/German/US condominium created by the Final Act of the Conference of the Affairs of Samoa signed at Berlin in 1889, which, subject to the assent of the Samoan Government, established a Land Commission, a Supreme Court and the office of Chief Justice with responsibilities including the adjustment and settlement of all claims by aliens to land in Samoa. It received the assent of King Malietoa on 19 April 1890."

There is no clearer exemplification of the Brennan principle at work than the Berlin Act enacted at a time when sovereign rule over Samoa was exercised by the three tripartite powers in conjunction with the Government of Samoa under the kingship of Malietoa who assented to the Act on behalf of all Samoa on 18 April 1890 as required by Article VIII, section 2 of the legislation. In the words of the Court of Appeal at paragraph 19 of its judgment:

"Sovereignty in law is ultimately a matter of political fact which the courts by recognizing it, will accept in point of law. The Government of Samoa having accepted the validity of the German regime, and there being no countervailing evidence to refute what is well known as a matter of historical fact, it is the duty of the judiciary also to confirm such validity, as we must do."

[28] Here too I am in disagreement with the plaintiffs. In my Strike Out judgment of 20 August 2007, I expressed the view that it was far from clear whether the Berlin Act, however patronizing it may have been, was properly made part of the law of this country. I said then this would only be resolved by a full and substantive hearing. As noted by the Court of Appeal in Palauli, a full and substantive hearing was accorded the matter by the Chief Justice at first instance and he accepted the validity of the German regime and the authority of the German courts. I am entirely in agreement with him and accept that at all material times, the Berlin Act was therefore the valid and applicable law of the land. I also note this is not the first occasion where this court has found this to be so and the resultant court grants issued pursuant to the Berlin Act recognized as legitimate exercises of sovereignity: see Board of Trustees of the Congregational Christian Church in Samoa v Pouvi [2003] WSSC 4; Tiavolo v Board of Trustees of the Congregational Christian Church in Samoa [2001] WSSC 7; and more recently McCarthy v Attorney General [2008] WSSC 9.

[29] As noted earlier the Berlin Act of 1889 provided a mechanism whereby claims to title over native land could be investigated and settled whether by compromise between the parties or by determination by the Land Commission and ultimately by the Supreme Court. That Act also provided that the Supreme Court decision on the matter was to be "a final decision". It provided by Article IV, section 3 for the advertisement of all claims and it is clear from the plaintiffs pleadings that this was done hence the objections lodged by various parties from Siumu. It also provided that claims not lodged within time would be "for ever barred". It is clear the aim of the legislation was to safeguard future sales of native lands for the protection of the Samoan people but it is also clear that its other primary purpose was to provide a mechanism whereby sales that had already occurred could be investigated, settled and if confirmed, registered in a register of titles.

[30] It appears from the plaintiffs pleadings in the present case that the procedures of the Berlin Act were followed in relation to the sales of the Siumu lands, but they say that these sales should be set aside because they were fraudulent for various reasons and were sales of parcels not properly surveyed or ascertained. The problem with this argument which is the main thrust of the plaintiffs case is that it is clear from the pleadings that the parties did follow the processes laid down by the Berlin Act of advertisement, investigation and determination by the Commission and subsequently, by the Supreme Court of Samoa. Some claims were settled by compromise, in other cases land was ordered to be returned to native title and in other cases, the claims by foreigners were upheld by the Land Commission and the Supreme Court. The plaintiffs complaints therefore must have been given a full airing as required by the law of the time and if there was fraud or misdescription no doubt these would have been raised by the parties before the investigating authorities. In some instances the challenge was successful and the claims were set aside, in other instances they were not. There is nothing in the pleadings to suggest that after the claims were confirmed in 1897 by the Samoa Supreme Court and the necessary court grants issued, the plaintiffs or their forefathers continued to press their claims on this or any other basis. The pleadings filed show that it was not until 1962 that these claims were resurrected with the Government.

[31] The problem with this case is that the plaintiffs are essentially asking this court over 100 years later to rehear their unsuccessful claims. Whilst I may be sympathetic to the plaintiffs and their claim, it would simply be wrong and unjust to allow that to be done. To quote the Court of Appeal in Palauli:

"At this point almost a century later, this court must apply the principle ‘omnia praesumunter rite esse acta’: all things required to be done are presumed to have been duly done".

[32] The plaintiffs and their predecessors in title had the opportunity to contest these claims, their pleadings indicate that they availed themselves of that opportunity in the 1890’s, they succeeded with some claims and failed with others. The issuance of the resulting Court Grants by the Samoan Supreme Court was a valid and proper exercise and native title in the lands in question was accordingly extinguished by that exercise. In respect of the claims that were successfully upheld the lands became freehold lands and title has since passed down to successive title holders including the Government as represented by the defendant in this action. In respect of those claims where the objections of the Siumu objectors was upheld, they were returned to native title, these remain customary lands of the Siumu people.

[33] In the present proceedings the plaintiffs amended statement of claim has no prospect of success, the land has become freehold land and is entitled to the protection of the Constitution, the limitation legislation and the principle of res judicata. Accordingly having come to that conclusion the amended statement of claim must be struck out. In the circumstances it is therefore unnecessary to deal with the second ground of the defendants motion in this matter.

[34] I have also considered the question of costs as this is included in the motion filed. Given the significance and importance of the issues that have been raised in this case, there will be no order as to costs.

[35] For the benefit of those gentlemen who came in late after the decision began to be read, as your lawyer is not present a full typed up version of this decision will be made available to your lawyer. She probably may want to take this matter further, that is your right. Court stands adjourned.

JUSTICE NELSON