Penaia v Land and Titles Court [2011] WSSC 84 (17 June 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

MULITALO TIALINO SAENA PENAIA II,
UTUTA'ALOGA LOLO,
FAUMUINA LAUVI PARATISO,
LUA OLA PENI & LUA TALI,
all Samoan Matais, of Sa'anapu.
Applicants

AND:

THE LAND AND TITLES COURT
established under the Constitution & The Land & Titles Act 1981.
First Respondent

AND:

MULITALO KIRIFI,
ALI'IMUAMUA ESEKIA,
ALI'IMUAMUA TAUA'I,
LUA'ILEPOU TAVITA & LUA'ILEPOU TIKI
all Samoan matais of Sa'anapu
Second Respondents

AND:

PULA MEAFOU,
TAFAFUNA'I IOANE,
TAULAPU TAVALAUINA,
FA'AFOU MAUFOE,
VOLE SEKE, all Samoan matais, Sa'anapu, and
MARIA LAUMATA, also of Sa'anapu
Third Respondents

AND:

TUIAFELOLO ETI LAULALA, TUIAFELOLO WILLIE MILLER, all Samoan matais of Sa'anapu, and AUAPA'AU LAUMATA, also of Sa'anapu
Fourth Respondents

AND:

AFAMASAGA TO'OVAEGA, AFAMASAGA PALAFU, and
PISILA AFAMASAGA, OILAU FUIMAONO, all matais of Fasito'o
Fifth Respondents

Counsel: L T Malifa for Applicants
M T Lui for First Respondent
M V Peteru for Second Respondent
T S Toailoa for Fourth Respondent
A Roma for Sixth Respondent

Conclusions: 29/4/2011
Reasons: 17/6/2011

REASONS FOR RULING

1. On the 29th April 2011 I stated my conclusions striking out the applicants Notice of Motion for Judicial Review. These are my reasons for those conclusions.
   

Background

2. In 1931 the Land and Titles Commission, delivered judgment vesting the ownership of two parcels of land at Saanapu village under the matai title Mulitalo. It also determined the rightful heirs of the Mulitalo title.

3. The Native Land and Titles Protection Ordinance 1934 which came into force on the first day of April 1935 established The Native Land and Titles Commission as a court of record, the forerunner of the First Respondent.

4. Subsequent decisions of the First Respondent in 1970, 1971, 1979 and 1986 concerning the title Mulitalo followed the 1931 decision.

5. Leaula Uelese (Uelese) and his party was the unsuccessful party in the 1970, 1971, 1979 and 1986 decisions. After the 1986 decision Uelese applied in writing to the then President Smith (Smith) of the First Respondent for leave to rehear the 1931 decision. After discussions between Uelese and Smith, Smith through the Registrar forwarded the following opinion to Uelese:

(i) I have discussed the application for rehearing filed by Leaula Uelese Mulitalo with him and ask that you send him a copy of the following decision;

(ii) The Land and Titles Court jurisdiction to hear appeals or rehearings of previous decisions is set out in Part 1X of the Land and Titles Act 1981. Strict time limits are imposed and no discretion is given to the President;

(iii) The decision complained of was made in 1931 and there is no power either in the Land and Titles Protection Ordinance of 1934 to enable the President to grant a rehearing or Leave to Appeal

(iv) Section 42/81 states that proceedings in the court commence on the oral or written notice of any "interested Samoan".

(v) It is for the court judges and Assessors – not the court staff to consider the petition, and in doing so as the court must consider the effect on the petition of any subject matter of the petition;

(vi) Although decisions of the court are "final" they are "final" only in respect of the matters before the court at the time of hearing and therefore binding on subsequent courts only to the effect that there has been no substantial change in custom, law or circumstances. If there are other relevant matters proven to the satisfaction of the court, then the court is entitled to distinguish to earlier decision and move away from it.

(vii) Petitioners seeking to file petitions in respect of matters already decided by the court must also be aware of the powers of the court to award costs and damages against the petitioner in terms of section 72/81 particularly if the court is frivolous and vexations.

6. Following Smith's opinion Uelese filed a petition which the lower court determined in 1987. The essence of the petition was to distinguish and overturn the 1931 decision which he unsuccessfully attempted to do in the 1970, 1971, 1979 and 1986 hearings.

7. Smith's opinion was cited in the lower court decision of the 4th December 1987 which set aside and varied part of the 1931 decision. In particular it confirmed the ownership of the two parcels of land but it set aside and varied the determination of the heirs of the title Mulitalo.

8. The applicants sought leave to appeal the 1987 decision. In granting leave in October 1990 the then President Ryan, highlighted two matters for consideration by the Appellate Court.

(i) the first matter was the action by the lower court in seeking advice during the course of the hearing; and

(ii) the second matter was whether section 42 was the appropriate section for the lower court to invoke at the hearing.

9. At the hearing of the appeal in May 1991 the applicants as appellants aggressively criticised the lower court decision and the opinion of President Smith. They argued that:

(i) Under Section 70 of Land and Titles Act 1981 a decision of the court is a judgment in rem and binding on all Samoans who are affected by it whether parties to it or not. Similar provisions applied under previous legislation so the judgment in 1931 must prevail and is binding on all parties to the present case.

(ii) the only way to challenge a decision is by way of appeal under part IX of the Act

(iii) the 1931 decision has already been considered and applied in other judgments of the court in 1970 and 1979 which are likewise final decisions, judgments in rem and binding on future courts.

10. The appellate court dealt with section 42 as directed by Ryan when he granted leave to appeal. Section 42 reads:

(1) All proceedings may be instituted in the Court by oral or written notice of the matter in dispute given by any interested Samoan to the Registrar.

(2) On receiving notice under subsection (1) the Registrar shall prepare a petition in the form numbered 4 in the schedule showing –

(a) the nature and particulars of the claim or dispute;

(b) the relief sought

(c) the name of the petitioner, the respondent and his village

(3) Every petition shall be signed by the petitioner and sworn before the Registrar

(4)

(5) Upon the filing of a petition the Registrar shall set it down for hearing at the next available sitting of the Court.

11. Notwithstanding that Section 70 of the Act which deems the decisions of the First Respondent to be judgment in rem and shall bind all Samoans affected by the decision whether they were parties to the proceedings or not, the Appellate Court however held that section 42 permits the court to entertain a petition touching the same or similar subject matter already determined by the Court, but in considering such a petition the court must consider the effect of any previous decisions touching on the same subject matter. But it also cautioned against the misuse of section 42. It said at page 6:

"This is not an open invitation for the court to be submerged with applications on matters which have previously been decided. There is no doubt that the combined effect of sections 37 and 70 seeks to preserve the integrity of previous court decisions. Accordingly while a court may depart from or find contrary to a prior court decision it should be able to show powerful and compelling reasons for so doing. It shall not do so merely upon a reassessment of the evidence of the previous decision and on weighing up competing unauthenticated evidence of the parties on the balance of probabilities. It must place the onus of establishing the prior decision was wrong or should be departed from fairly and squarely on the applicant and in its decision must be able to show very clearly the reasons for not following the prior decision. The court must also be careful that the ability to file successive proceedings does not lead to abuse of court procedure – that an applicant by sheer persistence on his part might eventually have reversed sound and validly made decisions.

12. The Appellate Court also considered the consequences and danger of a wrong decision being entrenched and came to the conclusion that the purpose of section 42 was to allow such decisions to be reconsidered. It says at page 7:

" There is this court believes one further sound reason for this interpretation of section 42. As we have said decisions affect status and rights and are based on presentation of evidence, facts and law. Time and circumstances can subsequently show that decisions have been brought above as a result of clearly established incorrect evidence or genealogies mistake of fact or law or denial of natural justice to some party. It is notable that while some jurisdictions, such as New Zealand in its Maori Land Legislation, contain specific provisions to deal with such instances, the Land and Titles Act does not. It would be unthinkable to expect that under Samoan law obviously wrong decisions would be entrenched.

On the other hand section 42 in not restricting applications allows such decision to be reconsidered and this court believes that this is one of the purposes behind the wording of that section."

13. In dealing with the applicants' submissions that the 1931 decision was examined approved and followed in the subsequent decisions of 1970, 1971 and 1979 the Appellate Court said at page 8:

"The court has examined these decisions very carefully. Unfortunately in these cases reasons for the decision are not given. It is therefore impossible to assess whether the basis of these decisions is as suggested by the appellant or whether they have been made because the court felt it was bound to follow the 1931 decision. Perusing the proceedings of these hearings is of little help as it remains impossible to assess what matters the court found relevant in coming to each of the two decisions."

It continued at page 10:

"This court has perused and reviewed very closely the file for LC 755 of 1931 and the following facts appear clear:

(i) This was a dispute over the lands Alofi and Tuugamau. These are the only lands which appear in the headings on file during the time leading up to the court case, they were both surveyed in October 1930 referred only to these lands, and they were the only lands referred to in court notice on 13 April 1931 and in the minutes of the case.

(ii) ...

(iii) The matter at issue was a claim by the party of Afamasaga T Lagolago that they were the true heirs of title Mulitalo and held the pule of "Alofi" and "Tuugamau". This was opposed by Mulitalo Uelese and his party.

(iv) ....

(v) At no time during the course of the hearing any claim made by either Poutoa or Mulitalo Uelese that their respective branch of the family held the pule of the title Mulitalo to the exclusion of all others or held the sole right to make appointments to that title.

14. As a result of their findings the Appellate Court concluded:

(a) That the 1931 case LC 755 involved a dispute over the lands "Alofi" and Tuugamau

(b) That in making a finding over the pule of title Mulitalo, the Court acted outside its terms of reference.

(c) That the normal procedure where there is a dispute over land is for the title of the land to be determined. It is only once that is done that the pule and heirs of the title are normally defined.

(d) That in making findings as to the pule of title Mulitalo the various members of the party led by Mulitalo Uelese were denied the opportunity to present evidence as to who should hold the pule and as to who were the true heirs of Mulitalo and this amounted to a denial of natural justice.

(e) That the Lower Court therefore had strong and compelling reasons for declining to follow the decision in LC755 of 1931 and was correct in so doing.

15. As a consequence of its findings the Appellate Court held interalia:

(i) That the court is not bound to follow the 1931 decision

(ii) The court confirmed the pule of the lands Alofi and Tuugamau in accordance with the 1931 decision.

(iii) The question as to who holds the pule of the title Mulitalo remains open for decision by the lower court upon application by any party, without being bound by the 1931 decision.

16. Following the Appellate Court decision, the lower determined the pule of the title Mulitalo by decision dated 1st March 2005. The applicants were declared one of the four parties who held the pule.

17. As a result of the pule determined by the court in its decision of 1st March 2005, some of the parties in the 2005 decision went ahead and made appointments to the title Mulitalo without consulting the applicant and other parties. A challenge to those appointments was heard by the lower which by its ruling dated 26th March 2009 annulled and cancelled the appointments and ordered all the parties to meet within three months to agree on the appointments or in failing that the court will make the appointment from suitable applicants.

The Challenge by the Applicants

18. The decisions of the lower court of the 1987, 2005 and 2009 and of the appellate court in 1991 are being challenged by Notice of Motion dated the 19th February 2010. They seek orders by way of mandamus or certiorari to quash and or review those decisions.

19. They also seek orders by way of remedial enforcement of the Applicants fundamental rights and liberties secured by Articles 6 and 9 of the Constitution as these rights are violated by those decisions.

20. Basically the applicants are saying that the 1931 decision which decided the issue of the pule of the Mulitalo title is a judgment in rem which binds all Samoans and was considered and followed by other subsequent court decisions in 1970, 1979 and 1986. Those court decisions conferred the pule of the title on the applicants.

21. When the lower court entertained the petition by one of the respondent party in 1987 to review and reconsider the 1931 decision and when the same court did not follow the 1931 decision in respect of the pule of the title Mulitalo the applicants say:

(a) The 1987 decision was an incorrect and erroneous application of section 42 of the Act. The section does not authorize acceptance and determination by the court of a petition on an issue already determined.

(b) The 1987 decision and the others which followed in 1991, 2005 and 2009 are illegal, invalid and abuse of judicial process.

(c) Those decisions applied the wrong tests and took into account irrelevant and improper considerations and or acted unreasonably or illegally.

(d) The 1987 court is a lower court and it has no authority to review a binding judgment in rem which binds all Samoans.

(e) The 1987 decision which adopted President Smith's opinion breached the applicants rights to a fair trial, violated their liberty under Article 6 both in protection of their cultural rights and traditional heritage as true heirs of the title Mulitalo.

(f) The appellate court decision of 1991 applied the wrong test, took into account irrelevant considerations and acted unreasonably and or illegal by:

(i) accepting the opinion of President Smith.

(ii) accepting that Uelese in the absence of the applicants sought and obtain the sanction of the court to file a fresh petition

(iii) accepting that the lower court can examine and review its own decision.

(iv) perusing and reviewing the file of the 1931 decision.

(v) by entertaining the appeal hearing the question of whether it was correct for the lower court not to follow the 1931 decision as that issue was properly one for judicial review, not for the appeal court.

22. The significant thrust of the application is to quash the decisions of 1987, 1991 and to reinstate the 1931 decision which has been repeatedly termed as of some 56 years standing before it was overturned in 1987. Paragraph 4 of the Applicant's affidavit says:

"In fact and in the decision that this Review and Application is focusing on, that is LC 755 (1931) it was 56 years standing in December 1987 in LC 755 P3 and P4 when it was purportedly invalidated ...; and 74 years of authority in March 2005 in LC 3385 P4 – P8 when that 2005 decision declared it to have been soloia ...."

23. The applicants contend that the 1931 decision could only be challenged by judicial review so that when the court entertained and heard a fresh petition in 1987 on the same issue, the 1987 court asked itself wrong and irrelevant questions and in doing so exceeded its jurisdiction and acted in abuse of authority. Similarly the Appellate Court in determining whether it was correct for the 1987 Court not to follow the 1931 decision entertained an issue which should have been dealt with by judicial review and as a consequence it applied the wrong test.

24. It is also alleged that the decision of 1987 was tainted with bias and therefore violated the applicant's rights to a fair trial.

The Strike Out Motions

25. The First Respondent advanced several grounds to strike out namely:

(i) Notice was not served on the First Respondent pursuant to section 21 Limitation Act 1975

(ii) There has been undue delay in seeking judicial review

(iii) The jurisdiction of the Supreme Court to review decisions of the Land and Titles Court is restricted to a breach of the Fundamental Rights enshrined in Part II of the Constitution.

(iv) the pleadings in the motion are unintelligible and are poorly particularized to the extent that the First Respondent cannot properly respond

(v) The motion discloses no reasonable grounds of proceeding against the First Respondent

(vi) The allegation of bias is not supported by documentary evidence.

26. The Second Respondents moved to strike out the applicants' motion basically on the grounds:

(i) The applicants have provided no grounds to establish that they did not receive a fair hearing in 1987 when the court set aside and cancelled the wordings of the decision of 1931 relating to the "pule" of the title "Mulitalo".

(ii) The applicants refer and rely on the case of Council of Civil Service Unions v Minister for the Civil Service (1985) AC 374 relating to the revisional authority of this Court, yet have failed to provide any grounds to establish that the 1987 and subsequent cases, acted illegally, irrationally and with procedural impropriety in the terms defined by Lord Diplock.

(iii) The applicants have failed to provide any grounds to substantiate that the findings of the court in 1987 are incorrect in law or fact.

(vi) The applicants have failed to provide evidence to explain why in 1987 and subsequent cases, the applicants did not reject the said judges at the time of the hearings based on the appearance of bias now alleged by the applicants.

(vii) The applicants' motion provides no reasonable grounds to establish a good cause of action or any cause of action against the Second Respondent.

27. The Fourth and Sixth Respondents also seek to strike out on the similar grounds raised by the First and Second Respondents and also on the grounds:

(i) The application for judicial review is misconstrued and fails to appreciate the powers of the Land and Titles Court (or any Court for that matter) to distinguish and thereby depart from its earlier decisions notwithstanding that such decision may have been longstanding.

The Pleadings

28. Generally the Court is in agreement with counsel for the First Respondent that the pleadings are somewhat poorly particularised and unintelligible. In fact they are repetitive and overlapping. The court also notes that this is not the first time the same criticism has been leveled at the same counsel for similar proceedings. See Ale Ulugia v The President of the Land and Titles Court (14/7/2008).

29. Perhaps another confusing nature of the motion for review is that while it seeks to quash the decisions of 1987, 1991, 2005 and 2009 it attempts to do so by way of mandamus and or certiorari.

30. The pleadings do not comply with rule 196 Supreme Court (Civil Procedure) Rules 1981 which require the filing of a statement of claim to accompany the motion seeking the extraordinary remedy. No statement of claim has been filed and neither an explanation for not complying has been given, nor an order to excuse non-compliance has been sought.

31. Whilst the non-compliance is not fatal to the motion pursuant to rule 202, the absence of the Statement of Claim renders no factual basis to the allegations based on Articles 6 and 9 of the Constitution. Although the applicants did file an affidavit of mixed facts and law some seven months after the motion was filed, the affidavit is a virtual repetition of the motion itself.

32. The undisputed facts upon which the application for review based on constitutional grounds can be summarised as follows:

(i) The lower court decision of 1931 conferred the pule over certain lands at Saanapu to the title Mulitalo. It also determined the heirs and pule of the said title Mulitalo.

(ii) Subsequent decisions in 1970, 1979 and 1986 followed the 1931 decision.

(iii) Following the 1986 decision, Uelese of the unsuccessful party in the 1970, 1979 and 1986 decisions sought by letter, from the then President Smith of the First Respondent permission to challenge the 1931 decision. The applicants were ignorant of this application.

(iv) Following Smith's written opinion, Uelese filed a petition which the court heard in 1987. In respect of the vesting of the pule of title Mulitalo, the 1987 court did not follow the 1931 decision but at the same time did not determine the pule.

(v) The applicants in whom the 1931 decision vested the pule of the title Mulitalo unsuccessfully appealed the 1987 decision in 1991. The appellate court left open the question as to who holds the pule of the title for determination by the lower court upon application by any party.

(vi) In 2005 the lower court determined the pule of the title Mulitalo. Pursuant to that determination which neither of the parties appealed, some of the parties upon whom the pule was conferred made several appointments which the others including the applicants objected resulting in the 2009 hearing.

(vii) In the 2009 hearing, the applicants as one of the successful party in the 2005 hearing petitioned the court to revoke some of the appointments to the title Mulitalo on the grounds that those appointments were not in accordance with the 2005 ruling.

33. The facts upon which the applicant's application for judicial review under the common law is based are:

(i) the 1987 court hearing came about as a result of a breach of the rules of natural justice when Smith gave his opinion without hearing from the applicants.

(ii) the 1987 court had no jurisdiction to review the 1931 decision.

(iii) By relying on the 1987 decision the 2005 and 2009 decisions were rendered illegal and invalid.

(iv) The 1991 appellate decision legitimized the 1987 decision and in doing so it applied the wrong test, took into account irrelevant and improper considerations.

(v) The 1991 appellate court acted unreasonably or illegally under Council of Civil Service Union by accepting the opinion of President Smith and by Uelese's conduct in seeking opportunity to file fresh petition.

34. The facts upon which the allegation of bias is anchored are:
    

(i) Judge Toelupe was one of the judges in the 1979 hearing and a Deputy President in the 1986 hearing. Both decisions followed the 1931decision. In the 1987 hearing Toelupe was also the Deputy President but that decision did not follow the 1931 decision.

(ii) The applicants allege that from 1985 to 1986 Uelese was a deacon and a relieving pastor at Toelupe's village of Malie and invariably they would have often met and a discussion of Uelese's quest to overturn the 1931 decision would have been discussed between Toelupe and Uelese.

(iii) The second allegation of bias is that judge Polataivao Maumea, one of the judges in the 1987 hearing was the husband of one Pimaneto, the half sister of the wife of Uelese. Judge Polataivao Maumea should have recued himself.

Discussion of Bias Allegations

35. Surprisingly this allegation was not raised on appeal when the applicants appealed the 1987 decision in which the two judges presided. It is not surprising however to understand why the applicants saw fit to challenge the integrity of the Vice President Toelupe in presiding as a judge in 1987 hearing during the period Uelese was a deacon and relieving pastor of the judges village, but did not challenge the suitability of the same judge to preside in the 1986 hearing, also during the time Uelese was a deacon and relieving pastor at the same judges village. The confusing logic underlying the allegation is that when the 1986 decision went in favor of the applicant judge was fit to sit but he was apparently biased and unfit to sit in 1987 when the decision went against the applicants.

36. If judge Polataivao Maumea's wife was the half sister of the wife of Uelese, there is no explanation in the applicants affidavit why the issue was not raised at the1987 lower court hearing or the 1991 appellate court hearing. And if the applicants did not realise the connections of the two women in 1987 there is nothing in the affidavit to explain how the applicants in the year 2010 (some 23 years later) discovered the connection.

37. Where the focus is on the appearance of bias, the test is whether there was a real danger of bias on the part of the judicial officer in question in the sense that the judicial officer might unfairly regard (or unfairly have regarded) with favour or disfavor the case of a party to the issues under consideration by the judicial officer. See John Michael Collier & Another vs. Attorney General (2001) NZ Court of Appeal (13/11/2001).

38. In a small jurisdiction like Samoa, Lord Cooke in delivering the judgment of the Court of Appeal in Sonny Stehlin vs. Police (1993 unreported) warned:

"The doctrine of disqualification for alleged bias has to be applied somewhat robustly in a jurisdiction of the size of Western Samoa. Indeed the present tendency of case law around the world, including a recent decision of the House of Lords R v. Gough [1993] UKHL 1; (1993) 2 All ER 724) is in the direction of robustness in this kind of matter."

39. Recently in the NZ Supreme Court judgment in Saxmere Co. Ltd & Others v. Wool Board Disestablishment Co. Ltd (2009) NZSC 72, McGrath J observed at paragraph 88:

"Judges should not automatically disqualify themselves in response to litigants' suggestions that there is an appearance of lace of impartiality. Judges allocated to sit in a case have a duty to do so unless they are disqualified. If a practice were to emerge of judges disqualifying themselves without good reason, litigants may be encouraged to raise objections which are based solely on their desire to have their case determined by a different judge who they think is more likely to decide in their favour. Such a development would soon raise legitimate questions concerning breach of the rights of parties and would not in my view be conducive to the ends of and administration of justice."

40. The test is objective, viewed through the eyes of the reasonable observer aware of all the relevant circumstances. It is not the subjective perception of the particular litigant.

41. Vice President Toelupe retired from the Land and Titles Court Bench in June 1993 at the age of 73 according to the records of the Land and Titles office. He is 90 years old. Judge Polataivao Maumea retired from the same bench in the 1980s. He has passed away. Both judges due to age and death cannot reply to the allegations of bias leveled at them, some 23 years after the event. Uelese has also died and cannot respond.

42. The delay in mounting the allegation tantamount to abuse of process of the court. Indeed there is no factual basis, as the First and Second Respondents contended, to support the allegation of apparent bias.

43. The allegation of bias should be struck and is struck out.

Right to a fair trial and breach of fundamental right

44. Other than bias the applicants also allege that they have been denied the right to a fair trial as provided under Article 9 (1) of the Constitution. In respect of the 2005 and 2009 decisions the applicants have no complaints about procedural unfairness. The complaint is leveled at the legality of the decisions which they say breached their fundamental right as the sole heirs of the title Mulitalo as declared by the 1931 and subsequent decisions in 1970, 1979 and 1986.

45. They say the 2005 and 2009 decisions incorrectly relied on and followed the 1987 and 1991 decisions which incorrectly interpreted section 42 of the Land and Titles Act which resulted in the re litigation of an issue which was decided in the 1931 and subsequent decisions of 1970, 1979 and 1986.

46. In reality it is the 1987 and the 1991 decisions which are the subject of the attack as the 2005 and 2009 decisions are decision of the lower court which are bound to follow the decision of the appellate court in 1991. In any event the 2009 court hearing came about as a result of petitions filed by the applicants and others to revoke several appointments to the title Mulitalo made by other respondents for the reasons that those appointments, as the applicants alleged, were not made in accordance with the court decision in 2005. It is an unequivocal gesture by the applicants that they were happy with and did accept the 2005 decision. And the 2009 decision did rule in favour of the applicant.

47. So to allege now that the 2005 and 2009 decisions took away their fundamental rights as the sole heirs of the Mulitalo title and breached their right to a fair trial in my view tantamount to abuse of process bearing in mind what I said in paragraph 45 above.

48. In respect of the 1987 decision the applicants alleged that they were denied the right to be heard when President Smith after discussion with Uelese gave a written opinion which resulted in the 1987 hearing which reviewed and over-ruled the 1931 decision, and in doing so the 1987 court hearing breached their fundamental right as the sole heirs of the Mulitalo title and also denied to them a fair trial. They argue that the Land and Titles Court has no jurisdiction to judicially review its own decision.

49. To contend that the 1987 court judicially reviewed the 1931 is somewhat misleading. As counsel for the fourth respondent in my view correctly submitted, the application is misconstrued and fails to appreciate the powers of the Land and Titles Court (or any other court for that matter) to distinguish and depart from its earlier decisions notwithstanding that such decision may have been longstanding. Whether to follow or distinguish its earlier decision the Land and Titles Court need to review (not judicially review as contended by the applicant) those earlier decisions. To assist counsel for the applicant to better understand the meaning of review by the court of earlier decisions, I refer counsel to the judgment of the House of Lords in Donald Campbell and Co. Ltd v. Pollak (1927) AG 732 which in determining whether it can entertain an appeal on the question of costs, Viscount Cave LC felt he was compelled to review not only the earlier decisions of the House of Lords but of the other courts as well. He said at page 741:

"As the contention of the respondent is wholly based on the citation of cases, I feel compelled to trouble your Lordships with a review of the decisions of this House bearing upon the point; and I have thought it well to include in order of date, the relevant decisions of the Judicial Committee of the Privy Council and some statements made by Lord Chancellors when sitting on appeal from Judges in Chancery."

Judges do not blindly follow or distinguish earlier authorities and judgments; they consider and review earlier authorities to determine whether they should be followed or not.

50. It is true that President Smith gave his written opinion without giving notice to the applicants, however, the opinion was in response to a written request from Uelese, who as a lay person, obviously had no input or offered legal submission before the opinion was given. As solicitors are not entitled to appear or be heard in the Land and Titles Court, the applicants as lay persons would have had no useful legal contribution to make if they were given notice before the opinion was given.

51. The opinion featured prominently in the judgment of the lower court, indicating that, that court did not consider the relevance and correctness of the opinion. But the appellate court did scrutinize the appropriateness, limitation and possible consequences of the opinion.

52. It follows that the breach of fundamental rights allegations must fail.

Res Judicata and Issue Estoppel

53. Policy considerations underlying res judicata, issue estoppel, cause of action estoppel and the related doctrine of abuse of process have been expressed in various ways in a number of authorities. Public interest demands that there should be finality in litigation so that a judicial determination directly involving an issue of fact or law disposes once and for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. See Blair v. Curran [1939] HCA 23; (1939) 62 CLR 464; Carl Zeiss Stiftung v. Rayner & Keeler Ltd (No 2) (1967) 1 AC 853.

54. The topic of Res Judicata, issue estoppel and cause of Action estoppel was discussed in detail by Sapolu CJ in Reed v. Matailiga (19/1/05) in which he cited and considered a number of authorities on the topic. I need not repeat those discussions which in any event relate to proceedings in the Supreme Court which are of course not identical to proceedings in the Land and Titles Court; but nonetheless the cardinal principles of issue estoppel would undoubtedly apply to the Land and Titles proceedings.

55. The House of Lords in Carl Zeiss Stifitung v. Rayner & Keeler re-stated the three requirements of issue estoppel:

(i) that the same question has been decided

(ii) that the judicial decision which is said to create the estoppel was final; and

(iii) that the parties to the judicial or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.

56. Issue estoppel however, will not arise where there is fresh evidence which is relevant to the correctness or incorrectness of an assertion whether of fact or of the legal consequences of facts, if such fresh evidence could not by reasonable diligence have been adduced by the applicant in the previous proceeding. Mills v. Cooper (1967) 2 QB 459 at 468 per Diplock LJ.

57. The 1931 decision which vested the pule of the title in the applicants gave no reasons for its decision, so did the subsequent decisions in 1970, 1979 and 1986. The 1991 appellate Court perused and reviewed the file for the 1931 court hearing and they found as a matter of fact that the issue before the 1931 court hearing was the dispute over two parcels of land which that court ruled was vested in the title Mulitalo. But who should be vested with the pule of that title was not an issue that was argued or placed before that court for determination. As a consequence when the 1931 decision vested the pule of the title Mulitalo in the application the court acted outside its jurisdiction or acted illegally. Res judicata does not therefore arise.

58. By acting illegally or in excess of jurisdiction the 1931 decision not only incorrectly conferred on the applicants the sole authority to make appointments to the title Mulitalo, the authority which they claim throughout these proceedings as their cultural right, but it also denied to Uelese and his party the opportunity to present evidence as to the pule of the title.

59. It follows that the allegation based on res judicata should also be struck out and is struck out.

Challenge based on Common Law grounds of illegality and irrationality

60. Whilst it is common ground that the Supreme Court can review decisions of the Land 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, the First Respondent goes on to argue that the Supreme Court's power of review is restricted by section 71 of the Lands and Titles Act which deems that no decision or order of the Land and Titles Court shall be reviewed or questioned in any other court by way of appeal, prerogative writ or otherwise. The First Respondent contended that section 71 ousts the jurisdiction of the Supreme Court to review where the allegations fall outside the breaches of the fundamental rights protected in Part II of the Constitution. So that unless the common law grounds are tied in with or embodied under a breach of a fundamental right, the court is prevented from reviewing the decision based on the common law grounds alone.

61. Without the benefit of full arguments from counsels, I take the same view as Sapolu CJ did in Tiotionuuese Amoa & others v. Land and Titles Court (unreported 31/1/11) that the strike out motion is not the appropriate proceeding to deal with such an important issue.

62. Assuming however for the purpose of these proceedings that the Supreme Court has jurisdiction to review where the allegations are based on the common law grounds of illegality and irrationality as alleged in these proceedings, the allegations must suffer the same fate as the res judicata. Illegality and irrationality allegations are premised on the fact that the 1987 and 1991, 2005 and 2009 decisions re-litigated an issue which was determined in 1931 and as they incorrectly over-ruled the 1931 decision they acted illegally and irrationally by applying the wrong test and taking into account irrelevant and improper considerations.

63. As the res judicata allegation has failed so must the allegations based on common law grounds. As a consequence the Notice of Motion for Judicial Review ought to be struck out.

Delay

64. In the event however that I am incorrect in striking out the motion for judicial review on the grounds stated above I should also deal with the question of delay as another ground, raised by the respondents to strike out the motion for judicial review. As already stated earlier it is really the 1987 and 1991 decisions against which the applicants have mounted their challenge. Any challenge to the 2005 and 2009 decisions cannot really be classified as serious; firstly because the validity of the 2005 decision was allowed to go unchallenged for some five years and more importantly the applicants brought about the 2009 court hearing by filing a petition to enforce the 2005 decision.

65. Another reason why I wanted to deal with the issue of delay is to address the point made by counsel for the applicants in his submissions which in my view accounts for the confusing nature of the motion for review and the submissions. In paragraph 4.3 of his written submission counsel states:

"In any case, judicial review is just now beginning. It is a whole new area of administrative action and administrative decision making that even without rules to be governed by, only this Court can pave the way to move it ahead and develop its jurisprudence."

66. Judicial review power of the Supreme Court are inherent. It existed from the very moment the Supreme Court (or High Court as it was formerly known) was established in Samoa. Whereas rights of appeal are statutory, powers of judicial review are inherent, they existed under the common law. Judicial review jurisdiction of the Supreme Court has not just begun as contended by the applicant's counsel.

67. Judicial review as a common remedy is discretionary. As the courts pushed back the boundaries of judicial review, they became more acutely aware of the need to maintain their review jurisdiction within permissible limits: Phillip A. Joseph; Constitutional and Administrative Law in NZ 2nd Edition page 973.

68. In Stininato v. Auckland Boxing Association (1978) 1 NZLR 1 Cooke J (as he then was in the NZ Court of Appeal) cautioned:

"Concern for the development of administrative law as an effective and realistic branch of justice must imply that the discretionary remedies should not be granted lightly:"

And in Apia Bottling Co. Ltd v. Attorney General (1970 – 1979) WSLR 227 Nicholson CJ had this to say about delay:

"The case law shows that the court are loth to grant any of the extraordinary remedies where the complainants have failed to pursue their claims promptly. In R v. Aston University Senate (1969) 2 All ER 964 the English Court of Appeal hold that in as much as prerogative orders were discretionary remedies and should not be made available to those who slept upon their rights."

Further on he says in the next paragraph:

"In addition it is not simply the delay itself that concerns the court."

So where the delay does not inflict any prejudice on the respondent or third party, then the delay may not be fatal.

69. But where the delay occurs, the applicant bears the onus of offering an acceptable explanation. Attorney General ex rel Benfield v. Wellington City Council (1979) 2 NZLR 385. The applicant has offered no explanation at all for the delay of some 19 years since the appellate court decision in 1991, and given their apparent acceptance of the 2005 decision the delay tantamount to abuse of process justifying refusal of the discretion to grant the orders sought.

Section 21 Limitation Act

70. To avoid discourtesy to counsel for the First Respondent I will very briefly address the submission on Section 21 of the Limitation Act which in so far as relevant provides:

(1) No action shall be brought against any person (including the Government) for any act done in pursuance or execution or intended execution of any Act of Parliament, or of any public duty or authority, or in respect of any neglect or default in the execution of any such Act, duty, or authority, unless:

(a) Notice in writing giving reasonable information of the circumstances upon which the proposed action will be based and the name and address of the prospective plaintiff and of his solicitor or agent (if any) in the matter is given by the prospective plaintiff to the prospective defendant as soon as practicable after the accrual of the cause of action; and

(b) The action is commenced before the expiration of one year from the date on which the cause of action accrued:

71. Failure by the Applicants to comply with section 21, the First Respondent contended, is fatal to the application. The success of the contention depends on whether section 21 applies to judicial review proceedings despite the definition of action in the Limitation Act which includes all proceedings in a Court of law other than a criminal proceeding.

72. I hold as Sapolu CJ did in Tiotionuuese Amoa & others v. Land and Titles court (31/1/11) that the Limitation Act does not apply to proceedings for judicial review.

73. As the Respondents have succeeded on their strike out motions on other grounds, I consider it necessary to discuss in detail this ground which in any event cannot succeed.

Result

(a) The Notice of Motion for Judicial Review and by Way of Application for Remedial Enforcement of Fundamental Rights is struck out.

(b) The First, Second, Fourth and Sixth Respondents are entitled to costs of $500 each against the Applicants.

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JUSTICE VAAI