Tuigamala v Appellate Division of the Land and Titles Court and Vaosaoalii [2016] WSSC 90 (10 June 2016)

SUPREME COURT OF SAMOA
Tuigamala v Appellate Division of Land and Titles Court and Vaosaoalii [2016] WSSC 90

Case name:	Tuigamala v Appellate Division of Land and Titles Court and Vaosaoalii
Citation:	[2016] WSSC 90
Decision date:	10 June 2016
Parties:	FAASAO TUIGAMALA TAPENA, VAIOTUPA TUIGAMALA, SOTI TUIGAMALA, VAISOLA TUIGAMALA all members of Tuigamala family of Vailuutai, Aana (Applicants) and APPELLATE DIVISION OF THE LAND AND TITLES COURT, constituted under section 77 of the Land and Titles Act 1981 (First Respondent) and MUGI TOVAOTELE VAOSAOALII, PALAU SEMAU TANIELU, ALAIMALO VAILI TATUPU all of Faleatiu, Aana (Second Respondents).
Hearing date(s):	-
File number(s):	Misc154/16
Jurisdiction:	Civil
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	JUSTICE VAAI
On appeal from:
Order:	(1) The Notice of Motion for Judicial Review is struck out. (2) The applicants shall pay costs of $1,000 to the first respondent and $500 to the 2nd respondent.
Representation:	J Brunt and T Tiotio for Applicants S Ainuu and R Masinalupe for First Respondent A Faasau for Second Respondents
Catchwords:	Motion for judicial review – frivolous – vexatious and abuse of court process – past decisions
Words and phrases:
Legislation cited:
Cases cited:	Penaia v Land and Titles Court (2012) WSCA 6 Malifa v Land and Titles Court (2014) WSCA 11 Moala v Land and Titles Court (5th May 2016)
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

FAASAO TUIGAMALA TAPENA, VAIOTUPA TUIGAMALA, SOTI TUIGAMALA, VAISOLA TUIGAMALA all members of Tuigamala family of Vailuutai, Aana.
Applicants

AND:

APPELLATE DIVISION OF THE LAND AND TITLES COURT, constituted under section 77 of the Land and Titles Act 1981.
First Respondent

AND:

MUGI TOVAOTELE VAOSAOALII, PALAU SEMAU TANIELU, ALAIMALO VAILI TATUPU all of Faleatiu, Aana.
Second Respondents

Counsel:
J Brunt and T Tiotio for Applicants
S Ainuu and R Masinalupe for First Respondent
A Faasau for Second Respondent

Ruling: 10 June 2016

RULING OF THE COURT

Introduction

1. This judgment concerns the notices of motion by the first and second respondents to strike out the applicant’s notice of motion for judicial review on the basis that the application for judicial review is frivolous, vexatious, abuse of court process and has no prospect of success.

Notice of Motion for Judicial Review

2. The notice of motion for judicial review seeks orders to quash or set aside the decision of the first respondent dated 20^th February 2015 upon the grounds:
   • (a) The first respondent is an inferior court and its decisions are reviewable by this court pursuant to rule 195 Supreme Court Civil Procedure Rules 1980.
   • (b) The decision violates the applicants’ right to a fair trial through an incomplete investigation by the first respondent of the appeal by the second respondents.
   • (c) The first respondent did not do a thorough investigation of the past decisions of the Land and Titles Court and the Commission of Land and Titles regarding the Leo’a land at Vailuutai which is occupied by the applicants.
   • (d) The Leo’a land at Vailuutai does not belong to Taufono. It is part of the entire land gifted by Toleafoa Laumoa Moloka to Tuigamala.
   • (e) The applicants are heirs of Tuigamala and they have rights to live on the land they are told to evict as a result of the decision by the first respondent.
   • (f) The Land and Titles Court unlawfully subdivided the Leo’a land in 1945 ...
   • (g) As a result of the due process issues, there was an actual or perceived error for judgment on the part of the first respondent.

First Respondents decision of 20th February 2015

3. In its decision of the 20^th February 2015, the first respondent followed the earlier decision of the Land and Titles Court of the 5^th November 1945, allowed the appeal by second respondent, and ordered the applicants to vacate the disputed parcel of land at Vailuutai.

Motions to strike out

4. The common ground advanced by the respondents to strike out is grounded on section 71 of the Land and Titles Act which ousts the jurisdiction of the Supreme Court to review or question any decision or order of the Land and Titles Court by way of appeal, prerogative writ or otherwise whatsoever.
5. Both respondents concede that the Supreme Court has jurisdiction for judicial review of decisions of the Land and Titles Court when it is alleged that there has been a violation of the applicant’s right to a fair trial pursuant to article 9(1) of the Constitution.
6. No recognised breach of a fundamental right or denial of a fair trial has been alleged by the applicants.
   

Applicants’ response to the strike out motions

7. In opposing the strike out motions the applicants contended that its motion for judicial review discloses:
   • (i) the violation of the applicants fundamental right regarding property;
   • (ii) the violation of its fundamental right regarding procedural fairness. The Land and Titles Court failed to take relevant considerations into account upon failure to consider and honour an existing legal lease on the disputed land when it sub-divided the land in 1945 and gave its ownership to someone else.
8. A further affidavit was also filed by the applicants disputing the factual findings and decision by the Land and Titles Court of 1945.

Submissions by the Applicants

9. The very first line of the written submissions says:
   • “This is an application to this Honourable Court for a judicial review to quash and set aside the administrative decisions of the first respondent and the Land and Titles Court due to the lack of jurisdiction and error of law.”
10. Under the heading Issue counsel submitted

(i) the first issue is whether the Court had acted ultra vires by sub-dividing the land in 1945. ...

(ii) the second issue is whether the Court had committed an error of law by taking irrelevant considerations into account by failing to observe an existing lease on the land when the court subdivided the land in 1945; and

(iii) the third issue is whether the first respondent’s decision of 2015 relying on the 1945 decision in defiance of the 1918 and 1931 decisions was valid.

Discussion

11. The principles applicable to the exercise of the court’s jurisdiction to strike out a Statement of Claim and a notice of motion are well documented and are not in dispute.
12. It was blatantly obvious that counsel for the applicant had not read the decisions of the Court of Appeal in Penaia v Land and Titles Court (2012) WSCA 6 and Malifa v Land and Titles Court (2014) WSCA 11. He in fact conceded during oral submissions he did not. The two judgments were cited by Counsel for the first respondents in his written submissions. I urge and invite counsel for the applicants to read those decisions. They provide a complete answer to his notice of motion for judicial review which must be struck out. There is also a recent decision of Nelson J in Moala v Land and Titles Court (5^th May 2016) concerning the very same issues.
13. It is well established that the decisions or orders of the Land and Titles Court pursuant to section 71 Land and Titles Court Act 1981 cannot be reviewed or challenged by way of appeal prerogative writ or otherwise whatsoever. It is also well established that section 71 Land and Titles Act is over-ridden by article 4 of the Constitution which provides remedies for enforcement of fundamental rights so that the Supreme Court has jurisdiction to review decisions of Land and Titles Court when it is alleged that there has been a violation of the applicant’s constitutional rights to a fair trial pursuant to article 9(1) of the Constitution.
14. The thrust of the applicant’s complaint is levelled at the 1945 decision which the applicants say ignored or was inconsistent with the 1918 and 1931 decisions, and which was incorrectly followed by the 2015 decision. That issue the subject of the applicant’s complaint has been resolved by the Court of Appeal decisions in Penaia and Malifa. Section 71 of the Land and Titles Court prohibit the examination by the Supreme Court of the findings of the Lands and Titles Court. It was also noted by the Court of Appeal in Penaia:
    • “Even without sections 34(2), 70 and 71 (Land and Titles Court Act) there would be powerful reasons for the courts of general jurisdiction to be reluctant to intervene in disputes arising from decisions of the Land and Titles Court. The first principle of justice is that a court be competent to decide the case. The raison d’etre of the Land and Titles Court is to provide that competence, bringing to disputes concerning Samoan custom and usage the expertise of Judges versed in such matters so they can evaluate what answer is most in keeping with the justice of the case according to Samoan values. Such expertise can be gained only from a life-times exposure to Samoan culture, which in the courts of general jurisdiction may be wholly absent.”
15. The same Court also said that even if the court of general jurisdiction disagrees with the decision reached by the Land and Titles Court at first instance or on appeal, absent a constitutional breach, this court is in no position to judicially review such a decision.

Result

(1) The Notice of Motion for Judicial Review is struck out.
(2) The applicants shall pay costs of $1,000 to the first respondent and $500 to the 2^nd respondent.

JUSTICE VAAI