Malifa v President Land and Titles Court [2014] WSSC 173 (24 September 2014)

IN THE SUPREME COURT OF SAMOA
Savea Sano Malifa v LTC & Ors [2014] WSSC 173

Case name:	Save Sano Malifa v President of LTC & Ors
Citation:	[2014] WSSC 173
Reason date:	24 September 2014
Parties:	Savea Sano Malifa (Appelant); President of the Land and Titles Court (First Respondent); Maulolo Wairaki Toeavai (Second Respondent); Fata Pemila, Ututa’aloga Charlie Ulia (Third Respondents); Saena Tialino Penaia Ii; Fata Meafou (Fourth Respondents)
Hearing date(s):
File number(s):	CA 7/14
Jurisdiction:	CIVIL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:
Representation:	L T Malifa for the Appellant S Ainuu and S Faamausili for the First Respondent No appearance entered by other Respondents.
Catchwords:	Savea chiefly title – Ututa’aloga chiefly title – Afega –suli moni – heir – appeal –
Words and phrases:
Legislation cited:	Judicature Ordinance 1961;
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

CA 7/14

IN THE MATTER: of an Application for Judicial Review seeking enforcement of Fundamental Rights under Article 4 of the Constitution.

BETWEEN:

SAVEA SANO MALIFA of Afega, Chief Editor.
Appellant

AND:

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

AND:

MAULOLO WAIRAKI TOEVAI
Second Respondent

AND:

FATA PEMILA, UTUTA’ALOGA CHARLIE ULIA
Third Respondents

AND:

SAENA TIALINO PENAIA II; FATA MEAFOU
Fourth Respondents

Counsel:
L T Malifa for the Appellant
S Ainuu and S Faamausili for the First Respondent
No appearance entered by other Respondents.

Reasons: 24 September 2014

LEAVE TO APPEAL - REASONS

1. The courts written decision dated 17 April 2014 struck out the appellants Motion/Application to judicially review alleged breaches of the appellants fair trial right under article 9 of the Constitution by the Land and Titles Court of Appeal in the course of hearings relating to the title ‘Savea’ and the title ‘Ututa’aloga’ of the village of Afega. The appellant now seeks to appeal that decision based on section 45(3) of the Judicature Ordinance 1961 which provides:
   • “45(3) - An appeal shall lie to the Court of Appeal from any decision of the Supreme Court in any proceedings under the provisions of Article 4 of the Constitution.”
2. He argues his appeal lies as of right pursuant to section 51(a) of the Ordinance and that pursuant to the proviso to section 54(1) the Supreme Court is mandated to grant leave to appeal. The sections relevantly provide:
   • “51. Appeals in civil cases – An appeal shall lie in any action, cause or matter, not being a criminal proceeding, to the Court of Appeal from the Supreme Court:
   • As of right when the matter in dispute amounts to or is of the value of $400 or upwards.
   • “54 Order granting leave for appeal – (1) No such appeal, whether as of right or not, shall be brought except in pursuance of an order of the Supreme Court granting leave to appeal:
   • PROVIDED THAT........... the Supreme Court shall grant such leave in every case where the appellant is entitled to appeal as of right.”
3. On 29 August 2014 I granted leave to appeal pursuant to section 45(3) with reasons to be published. These are those Reasons.
4. Section 45(1) of the Judicature Ordinance 1961 confers on the Court of Appeal “power and jurisdiction to hear and determine all appeals from any judgment, decree or order of the Supreme Court whether in its civil or criminal jurisdiction.........” Subsection (2) provides for:
   • (a) Appeals from any decision of the Supreme Court where the Supreme Court certifies the case involves a substantial question of law as to the interpretation or effect of any provision of the Constitution;
   • 54. Appeals direct to the Court of Appeal by way of special leave where the Supreme Court has refused to grant such a certificate; and
   • 55. Appeals direct to the Court of Appeal by way of special leave in relation to determinations made under (a) or (b), or “on any other ground.”
5. Subsection (3) then goes on to provide for appeals from any decision of the Supreme Court in any proceedings for enforcement of fundamental rights brought pursuant to article 4 of the Constitution. Article 4 allows any person to apply to the Supreme Court to enforce any of his fundamental rights under the Constitution. The motion/application brought by the Appellant was such a proceeding alleging breach of his fair trial right under article 9. His appeal thus falls squarely within the ambit of section 45(3).
6. I do not however agree with the appellants argument that this is an appeal that lies as of right. Only section 51(a) of the Ordinance confers an entitlement to appeal “as of right” but section 51(a) has in my respectful opinion no application to the present case. For it cannot be said that any breach of the appellants fair trial right in the Land and Titles Court of Appeal is a “matter in dispute amounting to a value of $400 or upwards.” The fair trial right guaranteed by the Constitution is priceless, its value immeasurable. Although I acknowledge that its breach in some instances may lead to consequences capable of monetary quantification. This is not one such case.
7. Appeals on general constitutional issues was obviously intended by Parliament to be primarily governed by section 45(2). And appeals from decisions involving the significant issue of fundamental rights, by section 45(3). By virtue of section 54(1) such appeals require a discretionary grant of leave. I had no difficulty exercising the courts discretion in favour of the appellant given the nature of his challenge and its potential consequences for ‘suli’ or heirs to the two titles. Alternatively even on the first respondents argument that such a discretion is to be exercised in accordance with section 51(b), I would grant leave on a “magnitude of the interests affected” basis. Leave to appeal pursuant to section 45(3) was accordingly granted.
8. The appellant also sought an order pursuant to section 58 of the Ordinance staying execution of the decision in this matter pending hearing of his appeal. As explained to Mr Malifa in the course of hearing submissions there is nothing left to stay. The appellants application for judicial review was struck out, that was the end of the matter. What is being appealed is that decision. That the appellant is quite entitled to do. But any attempt to stay execution of that decision would in effect render the decision meaningless. Application to stay is accordingly refused.
   

............................ JUSTICE NELSON