Faisauvale v Attorney General [2018] WSSC 61 (1 May 2018)

SUPREME COURT OF SAMOA
Faisauvale v The Attorney General [2018] WSSC 61

Case name:	Faisauvale v The Attorney General
Citation:	[2018] WSSC 61
Decision date:	01 May 2018
Parties:	TAGALOASA FILIPAINA FAISAUVALE and OVALENI POLI PALAU VAILI. (Applicants) AND THE ATTORNEY GENERAL for the Police and the Prisons and Corrections services of Samoa. (Defendant)
Hearing date(s):
File number(s):	File No: Misc 103/18
Jurisdiction:	Civil
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	- The respondent has failed to show the applicants Motion is so untenable that it cannot possibly succeed, the application to strike it out is dismissed. Cost of this proceeding reserved to be dealt with as costs in the cause.
Representation:	P Mulitalo for applicants S Ainuu for respondent
Catchwords:	Transferred from Tafaigata to the holding cells of the Apia Police Station – transfer not material – Motion seeking return to Tafaigata Prison – Apia Police Station is not a prison – cause of action – frivolous – vexatious and abuse of process – peace order and good governance - common-law doctrine – maxim
Words and phrases:	omnia praesumuntur rite et solemniter esse acta -
Legislation cited:	Samoa Act 1921
Cases cited:	Enosa v Samoa Observer Co Ltd [2005] WSSC 54
	Harris v Knight [1890] UKLawRpPro 15; (1890) 15 PD 170, 175
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER:
Prisons and Corrections Act 2013; Police Services Act 2009 and the Ombudsman (Komesina o Sulufaiga) Act 2013.

BETWEEN:

TAGALOASA FILIPAINA FAISAUVALE and OVALENI POLI PALAU VAILI.
Applicants

AND:

THE ATTORNEY GENERAL for the Police and the Prisons and Corrections services of Samoa.
Respondent

Counsel:
P Mulitalo for applicants
S Ainuu for respondent

Decision: 01 May 2018

DECISION OF NELSON J

Background

1. The applicants are prisoners serving terms at Tafaigata Prison. They depose that on or about 03 February 2018 they were transferred from Tafaigata to the holding cells of the Apia Police Station on Main Beach Road, Apia. They have been detained there now for some three (3) months.
2. The reasons for transfer are not material but are said to be administrative and because they were inter alia suspected of smuggling arms and narcotics into Tafaigata Prison. There is no allegation they are being mistreated or discriminated against at the Apia Police Station. Unchallenged affidavit evidence from the respondent is they are housed in individual cells and are allowed normal visitation and other privileges, including visits by their counsel as is available to any other prisoner.
3. The applicants have filed a Motion seeking their immediate return to Tafaigata Prison on various grounds but at the hearing, applicants counsel accepted the other grounds had no merit and confined himself to the argument that the Apia Police Station is not a “prison” in terms of the applicable law. Furthermore even if it were, the applicants detention “has exceeded the temporary timeframe” for which the applicants should be kept at the Apia Police Station.
4. The respondent seeks to strike out the Motion on the basis that the applicants have no cause of action and it is therefore frivolous, vexatious and an abuse of process. There is no dispute as to the law governing motions to strike out: the jurisdiction is to be exercised sparingly and will only be utilised in plain and obvious cases where the plaintiff or applicants cause of action is so untenable that it is doomed to failure. There are numerous authorities for this proposition of law e.g. Enosa v Samoa Observer Co Ltd [2005] WSSC 54.

Analysis

5. As to the applicants first argument that the Apia Police Station is not a prison, a stroll down history lane is in order.
6. As all are well aware, Samoa or Western Samoa as it was then known was a German colony up to the outbreak of World War I in July 1914. From then on it was occupied by New Zealand until Independence on 01 January 1962.
7. Following cessation of hostilities in November 1918, the victorious Allied Powers in 1919 executed the Treaty of Versailles formally ending the war with Germany and her allies. They also established at the Versailles Conference the forerunner of the modern day United Nations Organisation being a ‘League of Nations’ charged with inter alia maintaining world peace and redistribution of Germanys overseas possessions and assets including German Samoa.
8. The League conferred on New Zealand a mandate to administer Samoa and one of the first actions of the New Zealand Administration was to pass the Samoa Act 1921 (1921 NZ No. 16) intended to be a comprehensive legislation for the “peace order and good government” of Samoa. As stated in the Preamble to the Act:

“An Act to make Provision for the Government of Western Samoa.

WHEREAS pursuant to the Treaty of Peace with Germany, signed at Versailles on the twenty-eighth day of June, nineteen hundred and nineteen, a mandate in the terms in the First Schedule to this Act has been conferred by the League of Nations upon His Majesty (a reference to King George V of England-sic) to be exercised on his behalf by the Government of the Dominion of New Zealand, to administer the former German colony of Samoa: And whereas by the said mandate it is provided that the Government of the Dominion of New Zealand shall have full power of administration and legislation over the said Territory, subject to the terms of the mandate, as an integral portion of the Dominion of New Zealand: And whereas, acting under the authority of the Treaties of Peace Act, 1919, and of an Order in Council intituled the Western Samoa Order in Council, 1920, made by His Majesty with the advice of His Privy Council on the eleventh day of March, nineteen hundred and twenty, His Excellency the Governor-General of the Dominion of New Zealand has, on divers dates, by Orders in Council, made temporary provision for the peace, order, and good government of the said Territory: And whereas it is expedient that permanent provision should now be made for the peace, order, and good government of the aforesaid Territory:

Be it therefore enacted by the General Assembly of New Zealand in Parliament assembled, and by the authority of the same, as follows:-” (thereafter the provisions of the Samoa Act).

By virtue of clause 4 of the Act:

“The Executive Government of Samoa.

4. The executive government of Samoa is hereby declared to be vested in His Majesty the King in the same manner as if the Territory was part of His Majesty’s dominions.”

9. Other relevant provisions of the Act for present purposes are clauses 5,6,7 and 8(1):

“The Administrator.

5. There shall be an Administrator of Western Samoa, who shall be appointed by the Governor-General, and shall be stationed at Apia, and shall, subject to the control of the Minister of External Affairs, be charged with the administration of the executive government of the Territory, save so far as other provision is made in that behalf by this Act.

6. (1) The Chief Judge of the High Court shall ex officio be the Deputy Administrator of Western Samoa.

(2) While the office of Administrator is vacant the Deputy shall, without further authority or appointment, assume and exercise all the powers of the Administrator, and all the provisions of this Act or of any other enactment with respect to the Administrator shall extend and apply to the Deputy accordingly.

(3) The authority of the Deputy so to act as aforesaid shall continue until a new Administrator has been appointed and has assumed the duties of his office in Samoa.

7. (1) If at any time the Administrator is incapable by reason of sickness or otherwise of performing the duties of his office, or is or proposes to be absent from the Territory, or is or proposes to be absent from Apia, he may, by warrant under the Seal of Samoa, authorize the Deputy Administrator to act as Acting-Administrator during the period of such incapacity or absence.

(2) Any such warrant may limit in such manner as the Administrator thinks fit, the authority of the Deputy with respect to the matters to which such authority extends.

(3) Subject to any limitations so expressed in the warrant, the Deputy so authorized may exercise all the powers of the Administrator both in respect of his office as such and in respect of any other offices held by him concurrently with his office as Administrator.

(4) Any such authority may be at any time revoked by the Administrator.

(5) No such warrant of authority, and no act done in pursuance thereof by the Deputy, shall be questioned or invalidated on the ground that the occasion for such warrant or for the exercise of the powers of the Deputy had not arisen or had ceased, and no act done by the Administrator shall be questioned or invalidated on the ground that any such warrant of authority was still in force.

8. (1) If at any time a certificate in writing that the Administrator is incapacitated by illness from executing any such warrant of authority is made and delivered to the Deputy Administrator by an authorized officer, the Deputy Administrator may, without further authority or appointment, assume and exercise all the powers of the Administrator (both in respect of his office as such and in respect of any other office held by him concurrently with his office as Administrator) until a certificate in writing to the effect that such incapacity has ceased is made by an authorized officer and delivered to the Deputy Administrator.”

10. In relation to prisons, clauses 39 and 40 provided:

“Prison and Police.

39. The Administrator shall by warrant under his hand and the Seal of Samoa appoint as prisons such buildings or places in the Territory as he thinks suitable for that purpose.

40. Any person in lawful custody in Samoa may be detained in any such prison, and may from time to time be removed by order of the Administrator or of a Judge of the High Court from one prison to another.”

Respondents arguments

11. It is the contention of the respondent that on 20 June 1929 pursuant to these powers and provisions, in particular clause 39, the then Acting Administrator G.W.Clinkard designated the Apia Police Station as a prison. There was produced a copy of the relevant Order as published in the Western Samoa Gazette. It relevantly reads:

“Appointment of Prisons.

I, George William Clinkard, Acting Administrator of the Territory of Western Samoa, in pursuance of Clause 39 of the Samoa Act, 1921, do hereby appoint as prisons the following buildings and places:-

The building situated in Apia and known as the Apia Police Station, together with the building and land used in connection therewith.

Given under my hand and the Seal of Western Samoa at Apia this twentieth day of June, 1929.

G.W. CLINKARD,

Acting Administrator. ”

The respondent says this Order remains valid and continues down to the present day by virtue of the savings provisions of succeeding legislations.

12. The obvious flaw in the respondents argument is that the Order in question was not issued by the Administrator as required by clause 39 or by the Deputy Administrator in accordance with clause 6. Which provides that the “Chief Judge of the High Court shall ex officio be the Deputy Administrator of Western Samoa” and he shall be competent to exercise all the powers of the Administrator. I take judicial notice of the fact that the Chief Judge of the High Court at the time was Chief Justice John Hector Luxford who served from 1929 to 1936, not G.W.Clinkard. My own researches indicate G.W.Clinkard was the Secretary to the Administrator, a fact borne out by the Gazette Notice itself wherein he signs a Notice concerning the Wild Pigeon Shooting Season as -

“GW Clinkard

Secretary to the Administration.”

Conclusions

13. The Samoa Act 1921 is very clear. It vests executive power in the Administrator “save so far as other provision is made in that behalf by the Samoa Act.” The statute goes on to appoint the Chief Judge as Deputy Administrator and provide for the exercise by the Deputy Administrator of the powers and functions of the Administrator in the Administrators absence.
14. These are very specific provisions. Nowhere in the legislation does it contemplate that some other person can act in the stead of the Administrator. Section 7(1) which the respondent relies on states that if the Administrator is incapable of acting due to sickness, absence “or otherwise”, he may authorise the Deputy Administrator to act in his place as Acting Administrator. It does not say may authorize “the Deputy Administrator or some other person.” Its purpose and intent is crystal clear. Only the Deputy Administrator i.e. the Chief Judge can act in place of the Administrator. Mr Clinkard was not the Chief Judge and could not therefore have been validly appointed as Acting Administrator.
15. As such the 1929 Order purportedly issued by G.W. Clinkard as Acting Administrator is ultra-vires of his powers and is void ab initio. Successive savings provisions do not save the Order for they cannot confer an empowerment not there in the first place.
16. The common-law doctrine of omnia praesumuntur rite et solemniter esse acta (all things are presumed to be done solemnly and correctly) also does not save the Order. That is a rebuttable presumption and as noted in Halsburys Laws of England 4^th ed. at paragraph 119 “it has no application where there is definite evidence to prove or disprove what is sought to be presumed nor where the giving or taking away of jurisdiction is in question.” As observed by Lindley, LJ in the often quoted Harris v Knight [1890] UKLawRpPro 15; (1890) 15 PD 170, 175:

“The maxim, ‘Omnia praesumuntur rite esse acta’, is an expression, in a short form, of a reasonable probability, and of the propriety in point of law of acting on such probability. The maxim expresses an inference which may reasonably be drawn when an intention to do some formal act is established; when the evidence is consistent with that intention having been carried into effect in a proper way; but when the actual observance of all due formalities can only be inferred as a matter of probability. The maxim is not wanted where such observance is proved, nor has it any place where such observance is disproved” (emphasis mine).

The evidence here is clear. The Administrator had no power to appoint Mr Clinkard Acting Administrator.

17. Having reached that conclusion it is not necessary for the court to consider the applicants second argument that their incarceration at the Apia Police Station should be temporary only. It is enough that the applicants have an arguable case that the Apia Police Station is not by law a prison and their continued detention there is accordingly unlawful.

Decision

18. The respondent has failed to show the applicants Motion is so untenable that it cannot possibly succeed, the application to strike it out is dismissed. Cost of this proceeding reserved to be dealt with as costs in the cause.
    

JUSTICE NELSON