Mapuilesua v Land and Titles Court [2011] WSSC 131 (15 November 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER:
of an application by way of judicial review and an application for remedial enforcement of fundamental rights in respect of the Land and Titles Court decision ALC 4390 P6, P7, P9, P12-P17 dated 15 February 2008.

BETWEEN:

SALAIULUFA SIOLOGA MAPUILESUA,
Matai of Gataivai, Savaii.
Applicant

AND:

LAND AND TITLES COURT
established by the Constitution and Land and Titles Court Act 1981.
First Respondent

AND:

MULIFUSI TOGAFAU VAOITA,
LEOTA VAOITA, LEOTA SIAANA,
AGALELEI TASIAANA TOGAFAU
AND TALITIGA TOALA MULIFUSI
all Matais of Gataivai.
Second Respondents

AND:

FA'ASAVALU TIATIA,
FAAOLA TUUAU and TIATIA TAVITA
all Matais of Samata, Gataivai
Third Respondents

Counsel: L T Malifa for applicant
M T Lui and L Vili for first respondent
M V Peteru for second respondents

Hearing: 10 November 2011
Conclusion: 10 November 2011
Judgment: 15 November 2011

JUDGMENT OF SAPOLU CJ

Introduction

1. In these proceedings the Court has to deal with two strike out motions. These are the motion on behalf of the first respondent, the appellate division of the Land and Titles Court (hereinafter referred to as the "LTC"), and the motion by the second respondents to strike out the applicant's motion for judicial review of the LTC's decision in ALC 4390 P6, P7, P9, P12-P17 dated 15 February 2008.
   
2. Counsel for the applicant at the start of his submissions informed the Court that he and counsel for the LTC have not been served with the second respondents motion to strike out. Counsel for the LTC confirmed this when asked by the Court. I have therefore decided not to take into consideration the strike out motion by the second respondents or the oral submissions of their counsel. This means I will deal in this judgment only with the strike out motion of the LTC and the written and oral submissions of its counsel together with the oral submissions of counsel for the applicant.
   
3. The third respondents did not take part in these proceedings. It is not clear whether they were served with the applicant's motion for judicial review. In any event, I do not consider that their absence has caused them any prejudice given my conclusion delivered on 10 November 2011 striking out the motion for judicial review.
   

LTC proceedings

4. On 11 and 12 February 2008, the LTC heard appeals by the second respondents and the third respondents against the decision of the trial division of the Land and Titles Court (hereinafter referred to as the "Court of First Instance") concerning the heirs and the pule of the title Mapuilesua of the village of Gataivai in Savaii. This is the decision ALC 4390 P6, P7, P9, P12, P13, P14, P15, P16, P17 dated 19 April 1996. The Court of First Instance in its decision excluded the second and third respondents from the heirs and the pule of the title Mapuilesua.
   
5. After the hearing of the appeals, the LTC delivered its decision on 15 February 2008. The LTC allowed both appeals in part and made certain amendments to the decision of the Court of First Instance. The LTC held, inter alia, that the first appellants, who are the second respondents in these proceedings for judicial review, are included in the heirs of Tausili and therefore included in the aiga potopoto of the title Mapuilesua of Gataivai. The LTC also held, inter alia, that the second appellants, who are the third respondents in the present proceedings for judicial review, are included in the heirs of Salaiulufa and therefore included in the aiga potopoto of the title Mapuilesua. The other heirs which the LTC confirmed as heirs of the title Mapuilesua and are therefore also included in the aiga potopoto of the title Mapuilesua are the heirs of Vaavale.
   
6. In essence, the applicant's motion for judicial review is directed at the inclusion by the LTC in its decision of the second respondents as heirs of Tausili and the third respondents as heirs of Salaiulufa. The applicant is of the belief that the second respondents are not heirs of Tausili and the third respondents are not heirs of Salaiulufa and therefore should not have been included in the aiga potopoto of the title Mapuilesua as it was decided by the Court of First Instance. In effect, the applicant is primarily complaining about the outcome of the hearing before the LTC. He wants the second and third respondents excluded from the heirs and the aiga potopoto of the title Mapuilesua.
   
7. The applicant does not complain that he was arrested, detained, or otherwise deprived or dispossessed of his physical liberty. What counsel for the applicant submitted was that the LTC's decision has in effect deprived the applicant of his personal liberty under Article 6 (1). This is notwithstanding that the applicant had not been arrested, detained, or otherwise deprived of his physical liberty. With respect to counsel for the applicant, I regret to say that this is a serious misconception of what Article 6 (1) is about and it has contributed so much to the confusion in the motion for judicial review.
   

The applicant's motion for judicial review

(a) Remedies

8. The applicant in his motion for judicial review seeks four remedies. In (a) of the motion, the applicant seeks mandamus and certiorari to quash or set aside the LTC's decision in ALC 4390 P6, P7, P9,P12-P17 of 15 February 2008. As pointed out to counsel for the applicant during the hearing of this matter, mandamus is a remedy that is sought to secure the performance of a duty by a public authority. Mandamus is therefore inappropriate in these proceedings.
   
9. In (b) of the motion, the applicant seeks "remedial enforcement" of his fundamental rights under Articles 6 (1) and 9 (1) of the Constitution. I suspect that what counsel for the applicant has in mind here is Article 4 which provides that any person may apply to the Supreme Court by appropriate proceedings to enforce any of the fundamental rights under Part II of the Constitution and that the Supreme Court shall have the power to make all such orders as may be necessary and appropriate to secure his/her enjoyment of any such right.
   
10. In (c), the applicant seeks a stay of the said decision of the LTC pending the outcome of his motion for judicial review. In s.78 (2) of the Land and Titles Act 1981, the President of the Land and Titles Court may order a stay of a decision of the Court of First Instance which is the subject of an appeal when granting leave to appeal. There is no such power given to the President of the Land and Titles Court in respect of a motion for judicial review to the Supreme Court.
    
11. In my view, the broad terms of Article 4 (2) gives the Supreme Court the power to order the stay of a decision of the LTC which is the subject of a motion for judicial review if that is "necessary and appropriate" to secure to the applicant for judicial review the enjoyment of any of his/her fundamental rights alleged to have been breached. Whether the Supreme Court will grant such a stay will depend on the circumstances of each case.
    

(b) Grounds of the motion for judicial review

12. The applicant's motion for judicial review contains eight grounds against the LTC's decision in relation to the second respondents and seven grounds against the LTC's decision in relation to the third respondents. Without intending any discourtesy to counsel for the applicant, I must say that all these grounds are so confusing that it is difficult to follow and understand them. As a result, it is difficult to state in a few words and in a meaningful way what they are.
    

(c) Difficulties with the motion for judicial review

13. The motion for review is primarily based on alleged breaches of the right to personal liberty under Article 6 (1) of the Constitution. In the alternative, it is stated in the grounds of the motion that the same facts which constitute breaches of Article 6 (1) also constitute breaches of the right to a fair trial under Article 9 (1). As a further alternative, it is asserted in para 6 of the motion that grounds (i) to (viii) against the decision of the LTC in relation to the second respondents also show that the LTC had acted illegally and irrationally. Likewise, in ground 2(ii) of the motion against the decision of the LTC in relation to the third respondents, it is asserted that the LTC had acted illegally and irrationally.
    
14. The first difficulty with the grounds of the motion for review is that the right to personal liberty under Article 6 (1) is not applicable to the circumstances of these proceedings as it will be shown later. The applicant was not arrested, detained, or otherwise deprived or dispossessed of his physical liberty at any time during the proceedings before the LTC.
    
15. Secondly, the way it is claimed in the alternative that the circumstances which constitute the alleged breaches of the right to personal liberty under Article 6 (1) also constitute breaches of Article 9 (1) are simply bare assertions. There is no explanation to show which part or parts of Article 9 (1) has or have been breached or how such breach or breaches occurred. This is not the way for any counsel to raise an alleged breach of the right to a fair trial under Article 9 (1) or of any other fundamental right provision in Part II of the Constitution.
    
16. Thirdly, the allegations in para 6 and para 2 (ii) of the motion for review which state that the LTC had acted illegally and irrationally are also bare assertions. There is no explanation whatsoever as to how the LTC had acted "illegally" or "irrationally" as those terms are understood in the context of judicial review.
    
17. Fourthly, the grounds of the motion for review contain a number of factual errors. I will turn now to some of these factual errors.
    

The grounds against the second respondents

(d) Ground 2 (i)

18. In ground 2 (i) of the motion for review, it is alleged that the LTC did not provide any valid reasons or rational basis for its decision that the second respondents are heirs of Tausili contrary to the decision of the Court of First Instance that the second respondents are not heirs of the title Mapuilesua. This is factually incorrect.
    
19. If reference is made to paras 13, 14, 16, and 17 of the LTC's decision, it is there explained in detail why the LTC differed from the decision of the Court of First Instance which excluded the second respondents from the heirs of Tausili and therefore the aiga potopoto of the title Mapuilesua. The LTC did not just arrive at its decision that the second respondents are heirs of Tausili and therefore included in the aiga potopoto of the title Mapuilesua. It went to great length, based on documentary material, to explain why the second respondents should be included in the heirs of Tausili. It is therefore erroneous to say that the LTC did not provide any valid reasons or rational basis for its decision that the second respondents are heirs of Tausili and therefore members of the aiga potopoto of the title Mapuilesua.
    

(e) Ground 2 (ii)

20. It is alleged in ground 2 (ii) of the motion for review that the LTC merely reconsidered in para 2 of its decision that the second respondents were appealing against parts 1-8 of the decision by the Court of First Instance but provided no reasons or explanation as to whether that "challenge" to parts 1-8 of the lower Court's decision was accepted. This allegation is also factually incorrect and misconceives para 2 of the LTC's decision.
    
21. Paragraph 2 of the LTC's decision contains no "challenge" to parts 1-8 of the lower Court's decision. It was therefore not necessary to provide in para 2 any reasons or explanation for such a "challenge" because there was none.
    
22. In para 2 of its decision, the LTC was simply stating that the appeal by the first appellants, who are the second respondents in the present proceedings for judicial review, was directed at parts 1-8 of the decision of the Court of First Instance and some of the reasons for that decision. In other words, the LTC in para 2 of its decision was stating what the appeal of the first appellants was directed at. It is often done in decisions of the Court to state in the opening paragraphs what the proceedings are about and that is what the LTC did in paras 2 and 3 of its decision. But para 2 contains no "challenge" which calls for any reasons or explanation.
    

(c) Ground 2 (iii)

23. In ground 2 (iii) of the motion for review, it is alleged that the LTC considered in para 7 of its decision that the second respondents were opposing only the word and name "...ia Tuitamana" but at page 7 of its decision the LTC does not explain what effect that opposition had on the decision by the Court of First Instance. It is then further alleged that this opposition was irrelevant and should have weighed against the second respondents being held heirs of Tausili and therefore of the title Mapuilesua. This ground is vague as to what it means. In any event, it is factually inaccurate.
    
24. What the LTC is saying in para 7 of its decision is that it has noted that the first appellants were not challenging the pule of the title Mapuilesua but only the word and the name "...ia Tuitamana" in part 2 of the decision of the Court of First Instance. In para 7.2, the LTC then goes on to say that it was satisfied that there was insufficient evidence produced by the first appellants to confirm their argument that Tausili was the only true son of Mapuilesua Popolelemaveve from Tuitamana.
    
25. It would appear that if the LTC had accepted the argument of the first appellants that Tausili was the only true son of Mapuilesua Popolelemaveve from Tuitamana, then Salaiulufa and Vaavale would not be true sons of Mapuilesua from Tuitamana. The heirs of Salaiulufa and Vaavale would therefore not be true heirs of the title Mapuilesua.
    
26. The refusal by the LTC to accept the argument of the first appellants is reflected in page 7 of its decision where the LTC confirms that the heirs of the title Mapuilesua are the heirs of Salaiulufa, the heirs of Vaavale, and the heirs of Tausili. I therefore see no real reason for the applicant, who is an heir of Salaiulufa, complaining about para 7 of the LTC's decision.
    

(d) Ground 2 (iv)

27. In ground 2 (iv) of the motion for review, it is alleged that the comment by the LTC in para 7 of its decision that "the first appellant is not challenging the pule of the title Mapuilesua mentioned in part 2 of the decision" of the Court of First Instance means that the pule in part 2 of that Court's decision remains. This is a misconstruction of para 7 of LTC's decision. It also misconceives the role of the LTC as an appellate Court which is not bound by a decision of the lower Court which is the subject of an appeal.

28. What the LTC did in para 7 of its decision was simply to state a fact, namely, that the first appellants were not challenging the pule of the title Mapuilesua as mentioned in the decision of the Court of First Instance but only the word and the name "...ia Tuitamana". On any reading of para 7, that cannot mean that the decision of the Court of First Instance was to remain. Neither does it mean that the LTC should therefore adopt the decision or finding of the Court of First Instance even if it is wrong. That would be inconsistent with the role of the LTC as an appellate Court.
    
29. With respect, ground 2 (iv) makes no sense
    

(e) Ground 2 (v)

30. In ground 2 (v) of the motion for review, it is alleged that the LTC did not weigh what it says in para 7.1 of its decision against the credibility of the second respondents when it decided to include the second respondents in the heirs of Tausili. It is then alleged that that there is no credible basis for including the second respondents in the heirs of Tausili. I think this is over stating the true position because there was other evidence to support the LTC's decision to include the second respondents in the heirs of Tausili.

31. In para 7.1 of its decision, the LTC states that the reasons adduced by the first appellants are their own opinions but that does not mean that those opinions are correct. For the same reasons as stated in para 6, the LTC says that it is satisfied that the argument presented by the first appellants is insignificant and could lead to trouble or disharmony. The argument that the LTC was dissatisfied with the argument of the first appellants that Tausili was the only true son of Mapuilesua Popolelemaveve from Tuitamana was not accepted. But that was not sufficient to lead the LTC to any conclusion that the first appellants are not heirs of Tausili and therefore not heirs of the title Mapuilesua.

32. If counsel for the applicant refers to paras 13, 14, 16, and 17, the LTC discussed in detail in those paragraphs the reasons why it differed from the decision of the Court of First Instance and decided that the first appellants are heirs of Tausili and the title Mapuilesua. It is not appropriate to single out para 7.1 and ignore paras 13, 14, 16 and 17 of the LTC's decision. The whole of the decision of the LTC must be taken into account.
    
33. Counsel for the applicant should also note para 8.2 of the LTC's decision where the LTC mentions two cases in 1973 and 1976 in which the Land and Titles Court rejected the claims by the applicant's family that only the heirs of Salaiulufa should be vested with the pule of the title Mapuilesua. The contention of counsel for the applicant that the LTC should not have included the first appellants in the heirs of Tausili because it rejected their argument that Tausili was the only true son of Mapuilesua Popolelemaveve from Tuitamana, can also be used against the applicant and his family being included in the heirs of Salaiulufa. The reason is that the Land and Titles Court in 1973 and 1976 had also rejected the argument by the applicant's family that only the heirs Salaiulufa should be vested with the pule of the title Mapuilesua. But as I have already said there was sufficient documentary material before the LTC which led it to decide that the first appellants are heirs of Tausili.
    
34. Ground 2 (v) is without merit.
    

(f) Ground 2 (vi)

35. Ground 2 (vi) of the motion is that there was no "new evidence to take this case away from the decision of the Court of First Instance". This implies that the LTC should not have entertained the appeal by the first appellants, who are the second respondents in these proceedings for judicial review, because they produced no "new evidence". Ground 2 (vi) overlooks the fact that "new evidence" is not the only ground on which the LTC may entertain an appeal. Section 79 of the Land and Titles Act 1981 provides seven grounds on which an appeal may lie from a decision of the Court of First Instance to the LTC. "New evidence" is only one of those grounds. Another ground is that the decision of the Court of First Instance is wrong in law: see s.79 (1) (f).
    
36. It appears from paras 13, 14, 16, and 17 of the LTC's decision that there was relevant documentary material which the Court of First Instance did not consider but which was relevant and supportive of the claim of the first appellants that they are heirs of Tausili. It was that documentary material which the LTC considered.
    
37. The failure of a decision-maker to take into account a relevant consideration in arriving at a decision is an error of law. Such an error of law under the modern classification of the grounds for judicial review would come under the heading of "illegality". An error of law is made a ground of appeal under s.79 (1) (f) of the Land and Titles Act 1981. So the LTC had jurisdiction to entertain the appeal of the first appellants on the ground that the decision of the Court of First Instance was wrong in law because it did not consider relevant documentary material that was supportive of the first appellants claim.
    
38. Ground 2 (vi) is without substance.
    

(g) Ground 2 (vii)

39. Ground 2 (vii) refers to an alleged failure of the LTC to take into account certain evidential matters contained in pp 5-6 of the transcript of the LTC proceedings. There is no shred of evidence in the motion for review to show that the LTC did not consider or take into account such evidential matters. The LTC may not have dealt in its decision with every evidential matter raised by the parties. But that does not mean that the LTC did not take such matters into consideration. Sometimes insignificant evidential matters are not discussed by the Court in a judgment because it is not decisive and it will unnecessarily prolong the judgment. But it does not follow that the Court had not considered such matter. So if a person complains that the Court had not considered an evidential matter that has to be shown. A mere suspicion is not enough.
    
40. Ground 2 (vii) is also without merit.
    

(h) Ground 2 (viii)

41. It is also alleged in ground 2 (viii) that there was no "new" or "fresh" evidence for the appellants appeal. Again new evidence is not the only ground of appeal provided in s.79 (1) of the Act. An appeal may, in terms of s. 79 (1) (f), also be entertained on the ground that a decision is wrong in law. Ground 2 (viii) is also without substance.
    
42. As it would appear from grounds 2 (i) – (viii), there is nothing to show that the applicant was deprived of his physical liberty in any way. There is also nothing to show that the applicant was denied a fair trial. The applicant did appear before the LTC which gave him the opportunity to be heard and the applicant was actually heard by the LTC. So where is the denial of a fair trial?
    

The grounds against the third respondents

43. Paragraph 44 of the applicant's motion sets out the grounds against the decision of the LTC for including the third respondents as heirs of Salaiulufa and therefore members of the aiga potopoto of the title Mapuilesua. The applicant states in para 4 that the LTC's decision has breached his personal liberty under Article 6 (1) of the Constitution as true heir of the title Mapuilesua. Seven grounds are then set out in support of this allegation. The fatal flaw in this part of the applicant's motion is that there is again nothing to show or even suggest that the applicant was in any deprived of his physical liberty. All of the applicant's grounds are mere criticisms of the LTC's decision but they do not disclose any dispossession of physical liberty. The applicant's grounds against the third respondents also contain factual errors and are often vague.
    
44. To explain what I mean by being vague, I refer to ground 4(1). The applicant states that the LTC decided that the third respondents are heirs of Salaiulufa but the Court of First Instance had decided that the third respondents were not heirs of Salaiulufa and had no connection to the title Mapuilesua. I do not see any relevance of this to the question of whether there has been a breach of the right to personal liberty under Article 6 (1). In any event, the LTC as an appellate Court is not bound by the decisions of the Court of First Instance. It is free to differ from a decision of the Court of First Instance.
    
45. In ground 4 (vi), the applicant states that the continuous occupation by his family of the residential site Malaeatuli is further evidence that they are the only true heirs of the title Mapuilesua. I cannot see how this has anything to do with the question of personal liberty under Article 6 (1). It does not show that the applicant was deprived of his personal liberty in any way. In any event, occupation of the residential site Malaeatuli was not the only evidence that was before the LTC for the purpose of determining the heirs of the title Mapuilesua.
    
46. In ground 4 (vii), the applicant states that in the genealogy presented by his family in ALC 1559 (1973) there is no mention of the third respondents in that genealogy. Again, I cannot see any relevance of this to the question of personal liberty under Article 6 (1), namely, whether the applicant was deprived of his personal liberty.
    
47. Grounds (4(ii) – (v) are also not relevant to the question of deprivation of personal liberty under Article 6 (1).
    

Alleged denial of the right to a fair trial of the Alii and Faipule of Gataivai

48. In para 5 of his motion, the applicant states that there had been a denial by the LTC of the right to a fair trial under Article 9 (1) of the Alii and Faipule of Gataivai. This is incorrect.
    
49. In para 2 of the LTC's decision, it is there pointed out that in proceedings on 13 September 2007 Tiatia Samu appeared on behalf of the Alii and Faipule of Gataivai and withdrew the Alii and Faipule from being a party to the LTC proceedings. In consequence, the Alii and Faipule of Gataivai were not a party to the LTC proceedings on 11 and 12 February 2008. In these circumstances, it cannot possibly be said that the Alii and Faipule of Gataivai were denied the right to a fair trial. They had voluntarily withdrawn from the proceedings and have not complained about the hearing before the LTC proceeding in their absence.
    

Article 6 of the Constitution

50. Article 6 of the Constitution which provides for the right to personal liberty states:
    

"(1) No person shall deprived of his personal liberty except in accordance with law.

"(2) Where complaint is made to the Supreme Court that a person is being unlawfully detained, the Court shall inquire into the complaint and, unless satisfied that the detention is lawful, shall order him to be produced before the Court and shall release him.

'(3) Every person who is arrested shall be informed promptly of the grounds of his arrest and of any charge against him and shall be allowed to consult a legal practitioner of his own choice without delay.

"(4) Every person who is arrested or otherwise detained shall be produced before a Judge of the Supreme Court, some other judicial officer, the Registrar of the Supreme Court or of any subordinate Court or any Deputy Registrar of the Supreme Court or of any subordinate Court from time to time approved in writing for this purpose by the Registrar of the Supreme Court (hereinafter collectively referred to as "remanding officers") within a period of 24 hours (excluding the time of any necessary journey), and no such person shall be detained beyond that period without the authority of one of the remanding officers"

51. The word "liberty" used in para 1 of Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the European Convention on Human Rights") was the subject of comments by the House of Lords in Secretary of State for the Home Department v JJ et al [2007] UKHL 45. In that case, Lord Bingham of Cornhill said at para 13:
    

"In ordinary parlance a person is taken to be deprived of his or her liberty when locked up in a prison cell or its equivalent. This common sense approach is, unsurprisingly, reflected in the Convention jurisprudence. Thus in Engel... the European Court has recognised that 'In proclaiming the right to liberty, paragraph 1 of Article 5 is contemplating individual liberty in its classic sense, that is to say physical liberty of the person', a ruling repeated in Guzzardi v Italy [1980] ECHR 5; (1980) 3 EHRR 333, para 92. It has also referred to 'classic detention in prison or strict arrest' (Guzzardi, para 95). Further, the Court has recognised the distinction between deprivation of liberty and restriction of movement and freedom of a person to choose his residence. The latter are the subject of article 2 of Protocol 4 to the Convention".

52. Lord Hoffman stated at para 36:
    

" So much was stated by the European Court of Human Rights in Engel v The Netherlands (No1) [1976] ECHR 3; (1996) 1 EHRR 647. The Court said (at p.669) that the article contemplates 'individual liberty in the classic sense, that is to say the physical liberty of the person'. The paradigm case of deprivation of liberty is being in prison, in the custody of a gaoler".

53. In para 57 Baroness Hale of Richmond stated:
    

"What does it mean to be deprived of one's liberty? Not, we are all agreed, to be deprived of the freedom to live one's life as one pleases. It means to be deprived of one's physical liberty: Engel v The Netherlands (No1) [1976] ECHR 3; (1976) 1 EHRR 647, para 58. And what does this mean? It must mean being forced or obliged to be at a particular place where one does not choose to be: eg X v Austria (1979) 18 DR 154..."

54. At para 69 Lord Carswell stated with reference to Article 5 of the European Convention on Human Rights:
    

"The word 'liberty' has a range of meanings. In a narrower sense it may mean physical freedom to move, so that deprivation of liberty would be physical incarceration or restraint. In a wider sense it may mean the freedom to behave as one chooses, for example, liberty of speech. For the reasons which I shall give, and in agreement with those set out by Lord Hoffman, I am of the opinion that in the phrase 'deprived of his liberty' in article 5 (1) the word should be interpreted in the narrower sense which I have defined".

55. In Guzzardi v Italy (1980) 3 EHRR 33 the Court in para 92 stated:
    

"The Court recalls that in proclaiming 'the right to liberty' paragraph1 of Article 5 is contemplating the physical liberty of the person; its aim is to ensure that no one should be dispossessed of this liberty in an arbitrary fashion. As was pointed out by those appearing before the Court, the paragraph is not concerned with mere restrictions on liberty of movement; such restrictions are governed by Article 2 of Protocol No 4... In order to determine whether someone has been 'deprived of his liberty' within the meaning of Article 5, the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question".

Article 9 (1) of the Constitution

56. Article 9 (1) of the Constitution which is concerned with the right to a fair trial provides:
    

"(1) In the determination of his civil rights and obligations or of any charge against him for any offence, every person is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established under the law. Judgment shall be pronounced in public, but the public and representatives of news service may be excluded from all or part of the trial in the interests of morals, public order or national security, where the interests of juveniles or the protection of the private life of the parties so require, or ot the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

Jurisdiction to review decisions of the Land and Titles Court

57. This Court has repeatedly stated that it has jurisdiction to review decisions of the Land and Tiles Court for breaches of the fundamental rights provisions of the Constitution regardless of the privative clause in s.71 of the Land and Titles Act 1981. The most recent case in which that was stated was Amoa v Land and Titles Court [2011] WSSC 89. However, this Court has very limited common law jurisdiction to review decisions of the Land and Titles Court. Respect is given to the provisions of the privative clause in s.71 of the Land and Titles Act 1981. But this will not exclude the jurisdiction of the Supreme Court to review a decision of the Land and Titles Court which deals with a name that is not a matai title or land that is not customary land.
    
58. Article 103 of the Constitution provides for the establishment of a Land and Titles Court with such jurisdiction in relation to matai titles and customary land as maybe provided by Act. Section 34 of the Land and Titles Act 1981 provides for the jurisdiction of the Land and Titles Court over disputes relating to matai titles and customary land. So if the Land and Titles Court deals with a dispute relating to a name that is not a matai title or land that is not customary land, the Supreme Court may intervene by way of judicial review. This is to ensure that the exercise of jurisdiction by the Land and Titles Court is carried out in accordance with the provisions of Article 73 of the Constitution and s.34 of the Land and Titles Act 1981.
    

Discussion

(a) Article 6 (1) of the Constitution

59. Article 6 which provides the right to personal liberty mandates that no person shall be deprived of his personal liberty except in accordance with law. The word "liberty" is also used in para 1 of Article 5 of the European Convention on Human Rights. It was explained by the European Court on Human Rights in Engel v The Netherlands (No1), [1976] ECHR 3; (1976) 1 EHRR 647, para 2, and in Guzzardi v Italy [1980] ECHR 5; (1980) 3 EHRR 333, para 92 to mean "physical liberty of the person". This definition of "liberty" in the context of the right to personal liberty was followed by the House of Lords in Secretary of State for the Home Department v JJ et al [2007] UKHL 45. In my view, that meaning should also be given to the word "liberty" used in Article 6 (1) of the Samoan Constitution. It follows that when Article 6 (1) speaks of "no person shall be deprived of his personal liberty except in accordance with law", that means no person shall be deprived of his physical liberty to his person except in accordance with law.
    
60. The applicant in his motion for review has not shown that he was deprived of his physical liberty in any way whether by arrest, detention, or otherwise. The applicant was free to appear before the LTC and presented his submissions and answered questions from the Court and then left the Court at the conclusion of proceedings. Article 6 (1) is therefore not applicable to the circumstances of this case.
    

(b) Article 9 (1) of the Constitution

61. Article 9 (1) provides for the right to a fair trial by an independent and impartial tribunal. What is a "fair trial" incorporates the concept of procedural fairness which is one of the common law grounds for review. This is different from the review grounds of illegality and irrationality. Some of the criticisms by the applicant are directed at the issue of illegality but mainly irrationality. I have decided not to accept those criticisms for reasons already given.
    
62. The only criticism by the applicant that directly touches on the right to a fair trial is where he says that the Alii and Faipule of Gataivai had been denied their right to a fair trial. But they had voluntarily withdrawn from the LTC proceedings. They did not want to have any more part in the proceedings. So they could not have been denied their right to a fair trial. A person can be denied of something he wants, but you cannot be denied of something you do not want. The Alii and Faipule of Gataivai have also not complained that the hearing before the LTC proceeded without them or that their right to a fair trial was breached.
    
63. I have also not been able to find any breach of the applicant's right to a fair trial in any of the other grounds of his motion.
    

Illegality and irrationality

64. This Court has very limited common law jurisdiction to review decisions of the Land and Titles Court. It has such jurisdiction to review a decision of the Land and Titles Court where that Court deals with a name that is not a matai title or land that is not customary land. The applicant's motion for review clearly does not fall within such limits.
    

Conclusion

65. For all the above reasons, the applicant's motion for judicial review is so clearly untenable that it cannot possibly succeed. It is therefore struck out.
    
66. Counsel to file submissions as to costs in 10 days as from 10 November 2011 when I first stated my conclusion at the end of the hearing of these proceedings.
    

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CHIEF JUSTICE

Solicitor
Sogi Law for applicant
Attorney General's Office, Apia, for first respondent
Peteru Law Firm for second respondents