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Tokuma v Samoa Land Corporation [2017] WSSC 57 (29 May 2017)

SUPREME COURT OF SAMOA
Tokuma v Samoa Land Corporation [2017] WSSC 57


Case name:
Tokuma v Samoa Land Corporation


Citation:


Decision date:
29 May 2017


Parties:
NANAI LIU TOKUMA of Sogi and Wellington,AIGA TOKUMA of Sogi, TALAFULU TOKUMA of Sogi, TALALUPE TOKUMA-SANELE, TAUALOFA TOKUMA-TIMO and CIZZY TOKUMA of Sogi AND SAMOA LAND CORPORATION, a duly incorporated company operating in Samoa, AND MINISTRY OF PUBLIC ENTERPRISES a duly incorporated company operating in Samoa AND ATTORNEY GENERAL on behalf of the Land Board establish under the provision of the Land and Survey and Environment Act 1989


Hearing date(s):
12 May 2017


File number(s):
CP188/16


Jurisdiction:
Civil


Place of delivery:
Supreme Court of Samoa, Mulinuu


Judge(s):
Justice Vaepule Vaai


On appeal from:


Order:
- The Second respondent is ordered to be struck out as a party to these proceedings;
- The Third respondent is also ordered to be struck out as a party to these proceedings;
- Subject to the orders in paragraph 1 and paragraph 2 of the decision, the respondents’ motion to strike out the applicants’ Motion for Orders and Statement of Claim against the remaining respondent being the First Respondent is refused.


Representation:
P. T. Mulitalo for applicants.
T. Peniamina and E. Fruean for Respondents.


Catchwords:
abuse of process – interim injunction – interlocutory injunction- motion – motion to strike out an ex parte motion for declaratory orders – statement of claim - frivolous, vexatious -


Words and phrases:


Legislation cited:
Supreme Court Rules 1980 (“the Rules”);
Public Bodies (Performance and Accountability) Act 2001


Cases cited:


Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU


BETWEEN:
NANAI LIU TOKUMA of Sogi and Wellington, AIGA TOKUMA of Sogi,TALAFULU TOKUMA ofSogi, TALALUPETOKUMASANELE, TAUALOFATOKUMA-TIMO and CIZZY TOKUMA of Sogi
Applicants


A N D
SAMOA LAND CORPORATION, a duly incorporated company operating in Samoa
First Respondent


A N D:
MINISTRY OF PUBLIC ENTERPRISES a duly incorporated company operating in Samoa
Second Respondent


A N D:
ATTORNEY GENERAL on behalf of the Land Board established under the provision of the Land and Survey and Environment Act 1989
Third Respondent


Counsel:
P. T. Mulitalo for applicants.
T. Peniamina and E. Fruean for Respondents.


Hearing: 12 May 2017


Decision: 29 May 2017


DECISION OF THE COURT (STRIKE OUT MOTION)

Introduction

  1. These proceedings are about a motion filed by the respondents to strike out an ex parte motion for declaratory orders and statement of claim filed by the applicants against the respondents. The applicants are descendants of the late Mr Turore Tokuma of Sogi.
  2. The first respondent, Samoa Land Corporation is described in the Statement of Claim as an incorporated company operating in Samoa.
  3. The second respondent the Ministry of Public Enterprises is described also in the Statement of Claim as a duly incorporated company in Samoa.
  4. The third respondent is a statutory board established under the Lands and Survey and Environment Act 1989.

Background

  1. The applicants who reside at Sogi claim the land on which they reside was gifted to their father, grandfather and great grandfather Turore Tokuma in the 1920’s by the then Commissioner of Crown estates and Public Trustee, Mr Percival Ernest Patrick under whose employment Turore Tokuma was under. It was gifted to Mr Tokuma for services and loyalty as an employee, and compensation for almost being executed for a crime Mr Tokuma did not commit. The applicants also claim that their continuous occupation of the same land at Sogi was further endorsed by the first Prime Minister of present day Samoa, the late Mataafa Fiame Mulinu’u ll when he reaffirmed the Tokuma’s ownership.
  2. According to the affidavit of the Manager, Lands Division of the first respondent filed in support of the application to strike out the proceedings, the government approved a plan to relocate the residents of Sogi to Falelauniu around March 2008. It has become apparent that the first respondent was attributed the responsibility of implementing the plan to relocate the residents of Sogi to other lands it owned at Falelauniu. It is clear the applicants resist the relocation plan in so far as it relates to relocating them. It is not clear from their pleadings or their counsel’s submissions when the applicants became aware of the relocation plan. Nor is it clear whether they officially informed the first respondents or the other respondents of their refusal to leave once they were aware, and if they did, when and how. The only indication they refused to leave the land at Sogi is a copy of a newspaper article dated the 5th of August 2016 attached to the affidavit supporting the ex parte motion for orders and Statement of Claim.

Motion for declaratory orders and Statement of Claim

  1. On the 14th of October 2016, an ex-parte motion for declaratory orders with affidavit in support and a statement of claim were filed by the applicants against the first, second and third respondents.
  2. The motion seeks inter alia declarations regarding the applicants’ ownership of certain parcels of land at Sogi, an order by way of interlocutory injunction against the respondents estopping them from relocating the applicants from the land they claim to own, a further order by way of interim injunction estopping the respondents’ representatives from interfering with the applicants occupancy of the land.
  3. The statement of claim seeks parallel orders for the recovery of the said land at Sogi or orders declaring the plaintiffs to be entitled to all or a share of the said land and/or compensation for an undisclosed amount. The basis on which the applicants seek the above orders are:
  4. As confirmed by counsel for the applicants at the start of the hearing the causes of action in the motion for orders and the statement of claim are promissory estoppel; breach of trust or proper purpose; breach of contract; breach of gift; and unjust enrichment. It appears to me the claim by the applicants hangs wholly on the sole issue of whether there was in fact a gift to their ancestor as claimed.

Strike out Motion

  1. On the 21st of November 2016 the respondents’ filed a notice of motion to strike out the motion for declaratory orders and supporting affidavit, and the statement of claim both dated and filed the 14th of October 2016. The grounds put forward in support of the motion to strike are:
The reasons for the strike out motion are these.
  1. First, joining the second respondent as a party to these proceedings is a misjoinder and breaches rule 35 of the Rules because the second respondent’s functions under the Public Bodies (Performance and Accountability) Act 2001 are limited to monitoring and assessing the performance of State Owned Enterprises (SOEs). It is not involved directly or indirectly in the SOEs daily operations or decision making.
  2. Second, neither the Statement of Claim nor the Motion for orders particularises a maintainable cause or causes of action against the third respondent again as required by rule 35 of the Rules.
  3. Third, the orders sought in paragraphs 4 (interlocutory injunction), 5 (interim injunction), and 6 (stopping the implementing of the relocation plan) of the Motion are statutorily precluded as against the respondents by virtue of section 12 the Government Proceedings Act 1964.
  4. Fourth, the claim for declaratory orders in the Motion is defective in substance as the orders are not sought under the Declaratory Judgments Act 1988, but under the Lands, Survey and Environment Act 1989 and the Public Bodies Act 2001.
  5. Finally, there is no evidence, documentary or otherwise to prove or support an alleged gift or an agreement that the applicants claim as the basis of their ownership of the land at Sogi.

Applicants’ response to strike out

  1. In response to questions regarding a factual link or legal connection between the statutory responsibilities of the second respondent in terms of the Act under which it was created and the relocation plan from which the causes of action pleaded against it arose, Mr Mulitalo conceded (quite properly in my view) that a link on the face of the pleadings was legally unrealistic and factually farfetched. When pressed further on the status of the applicants’ proceedings filed against all three respondents, counsel sought leave to strike out the second respondent as a party which was granted.
  2. With regard to the third respondent, Mr Mulitalo also sought leave to amend the intitulment to both the applicants’ motion for orders and statement of claim. I will discuss fully further in this decision.
  3. Apart from the above concessions the applicants through counsel rejected all the other reasons the respondents put forward in support of striking out the motion and statement of claim. He urged the court to exercise its strike out jurisdiction sparingly and allow the applicants Motion for Orders and Statement of Claim to go on to a hearing of the substantive issues and the evidence in support their claims.

Issues:

  1. Should the second respondent be struck out as a party under rule 35 of the Supreme Court Rules (SCR) 1980?
  2. Should the third respondent be struck out as a party for the applicants’ failure to particularise a cause of action maintainable in law against it under rule 35 of the Rules or for the applicants’ failure to disclose a cause of action against it under rule 70 of the Rules?
  3. Should the motion for declaratory orders with affidavit and Statement of Claim be struck out for non disclosure of a maintainable cause of action or as frivolous, vexatious or abuse of process?

Applicable principles:

  1. The principles to be applied on an application to strike out a proceeding are:

(a) Pleaded facts are assumed to the true,

(b) The cause of action must be clearly untenable. The court must be certain that it cannot succeed,

(c) The jurisdiction is to be exercised sparingly and only in clear cases,

(d) The court should be particularly slow to strike out a claim in any developing area of the law.

Discussion:

  1. Issue - 1 Should the second respondent be struck out as a party under rule 35 of the Rules? As stated earlier, counsel for the applicants’ conceded during his submissions that citing the second respondent as a party to these proceedings was in reality unsustainable in the circumstances of and given the nature of the causes of action he pleads in the Motion and Statement of claim. He sought leave to strike out the second respondent as a party which was granted. The second respondent as a party to these proceedings is struck out.
  2. Issue - 2 Should the third respondent be struck out as a party for the applicants’ failure to particularise a cause of action maintainable in law against it under rule 35 of the Rules or for the applicants’ failure to disclose a cause of action against it under rule 70 of the Rules? The amendment mentioned earlier above counsel for the applicants sought regarding the third respondent was to insert the words “the Land Board of the Samoa Land Corporation” in place of the existing words in the intitulment “the Land Board established by the Lands and Survey Act 1989”. The application arose from an enquiry to counsel to identify the cause or causes of action in either the applicants’ motion or statement of claim specifically against the third respondent. He sought leave to amend because he said the applicants are in fact seeking the relief they seek in the motion and statement of claim against the Land Board of the first respondent, not the Land Board established by to the Lands and Survey Act 1989, which is statutorily under the Ministry of Natural Resources and Environment (MNRE). Counsels for the respondents objected to a grant of leave to amend. I will discuss this issue fully below.
  3. If leave as Mr Mulitalo sought was granted unopposed, it effectively means the third respondent should also be struck out as a party to these proceedings. This is because the first respondent is not liable in law for an act committed or an omission by the third defendant for the reason that the third respondent is created independently of and by a different statute from that under which the first respondent and its internal divisions such as its Land Board was incorporated. Mr Mulitalo argued that the basis of his application to amend was because the first respondent should be vicariously liable for acts of its Land Board. If this is what was envisaged in the applicants’ pleadings, it follows the third respondent has been erroneously joined as a party for the alleged acts of an entirely different Board with a similar name to it. It also means that if the first respondent is found liable as a statutory corporation or vicariously for acts of its Board or its employees, it is still for the purposes of legal proceedings the same and single entity by virtue of the statute under which it was incorporated. Additionally, it was quite obvious counsel for the applicants’ had difficulty in specifying a particular cause of action against the third respondent as he did with the previous case of a link between the relocation plan and the second respondent, already discussed. The difficulty arose from the fact there is nothing of substance in the applicants’ Motion and Statement of Claim to suggest the third respondent was involved in the alleged ‘gifting’ of the land in the 1920’s or connected in any way to an alleged assurance to the applicants of their ownership later by the Prime Minister the late Fiame Mataafa Mulinuu ll. Relevantly also and equally important, there is nothing either factual or legal in the applicants’ Motion or Statement of Claim connecting the third respondent directly or indirectly with the plan to relocate the applicants away from Sogi. It is plain from the above discussion of the reasons to strike out the third respondent that the answer to Mr Mulitalo’s application for leave to amend is either way of little help to his cause.
  4. If the third respondent is the statutory Land Board established under the Lands and Survey and Environment Act 1989, there is no particularised cause of action against it on the pleadings or one that counsel could particularise to justify its continuance as a party to these proceedings. Even if one was to assume that there is or are disclosed causes of action against the third respondent which justifies its continuance as a party, an outstanding issue still remains to be answered. That is, whether it is plain and obvious the claim by the applicants against the third respondent will not succeed. My view based on the above discussion is any such cause of action against the third respondent will not succeed. It cannot succeed because if the third respondent is in fact the Land Board of the Samoa Land Corporation as Mr Mulitalo urged, any liability against it if established may be binding in law only on the first respondent and not on the Land Board which was established by to the Lands and Survey Act 1989 the applicants sued. Either way therefore I am satisfied that the third respondent sued in the proceedings being the Land Board established by to the Lands and Survey Act 1989 is struck out as a party.
  5. Issue - 3 Should the motion for declaratory orders with affidavit and Statement of Claim be struck out for non disclosure of a maintainable cause or causes of action or as frivolous, vexatious or abuse of process? I will discuss this issue briefly under several sub issues as follows
  6. a) Does the Statement of Claim disclose a cause of action against the first respondent? On its face yes it does. Whether or not the causes of action pleaded by the applicants are proper and maintainable in law is a matter for full and further legal submissions at the substantive hearing. b) Are the causes of action in the Statement of Claim frivolous or vexatious or an abuse of process? The prima facie answer in terms of the standard test for frivolousness or being vexatious is no, they are not. A considered answer however depends on full and further legal submissions including whether the motion and statement of claim are an abuse of process. The issue clearly has to be dealt with and determined on the substantive hearing. c) Are the orders sought in paragraphs 4 (interlocutory injunction), 5 (interim injunction), and 6 (stopping the implementing of the relocation plan) of the Motion statutorily precluded against the first The answers depend on whether the first respondent is by definition “government” for the purposes of section 12 Government Proceedings Act 1964. Again this is a matter for full and further submissions at the substantive hearing. d) Is the claim for declaratory orders in the Motion defective in substance as the orders are not sought under the Declaratory Judgments Act 1988 but under the Lands, Survey and Environment Act 1989 and the Public Bodies Act 2001? The answer as to whether the motion for orders is defective procedurally or substantively requires full and further legal submissions at the substantive hearing. e) Is there evidence documentary or otherwise to prove or support an alleged gift or an agreement the applicants claim as the basis of their ownership of the land at Sogi?
  7. Despite counsel for the applicants’ admission during the strike out motion there is no documentary evidence to support the applicants’ claim that the land was a gift to their ancestor, this is a matter of evidence and should be dealt with and determined on the substantive hearing.
  8. With regard to the third issue, I am not satisfied on the evidence before the court and on counsels submissions heard that the outstanding issues for determination against the remaining parties should at this stage be struck out.

Decision (Orders)

  1. The Second respondent is ordered to be struck out as a party to these proceedings;
  2. The Third respondent is also ordered to be struck out as a party to these proceedings;
  3. Subject to the orders in paragraph 1 and paragraph 2 of the decision, the respondents’ motion to strike out the applicants’ Motion for Orders and Statement of Claim against the remaining respondent being the First Respondent is refused.

Justice Vaepule Vaai

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