Stowers v Attorney General [2019] WSSC 59 (18 September 2019)

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Case name:	Stowers v Attorney General

Citation:	[2019] WSSC 59

Decision date:	18 September 2019

Parties:	MATUALOTO FAUMUINA MAKESI STOWERS male of 12 Burcham Street, Taitai, Lower Hutt Wellington New Zealand v ATTORNEY GENERAL on behalf of the Ministry of Police, THE ATTORNEY GENERAL on behalf of the Samoa Land and Titles Court, and MASINALUPE TUSIPA MASINALUPE male of Apia Samoa.

Judgment date(s):	18 September 2019

File number(s):

Jurisdiction:	Civil

Place of delivery:	Supreme Court of Samoa, Mulinuu

Judge(s):	JUSTICE LEIATAUALESA DARYL MICHAEL CLARKE

On appeal from:

Order:	- The Plaintiff is ordered to file and serve his amended Statement of Claim within 14 days. - Counsel for the Plaintiff and Second Defendant are to reach agreement as to costs. If agreement cannot be reached, counsels are to file and serve their Memorandum as to Costs within 21 days of the date of this judgment.
Representation:	O Woodroffe for the Plaintiff S Ainuu and S Sapolu for First and Second Defendants S Leung Wai for Third Defendants.

Catchwords:	breach of Constitutional rights – abuse of process statement of Claim –

Words and phrases:

Legislation cited:	Supreme Court (Civil Procedure) Rules 1980; ; Government Proceedings Act 1974,

Cases cited:	Attorney General v Leapai [2017] WSSC 105 (31 July 2017) at [27]; Attorney-General v Saipa'ia [1982] WSLawRp 3; [1980-1993] WSLR 41 (16 July 1982); Attorney General v Chapman [2011] NZSC 110; Chan Tung v Attorney General [2005] WSSC 24 (31 October 2005); Enosa v Samoa Observer [2005] WSSC 6; Efi v Attorney-General of Samoa [2000] WSSC 22 (1 August 2000); Hunt v Police [2006] WSCA 5 (26 April 2006), (Land and Titles Court v Kalevini [2017] WSCA 8 (15 September 2017; Kneubhl v Liugalua [2000] WSSC 27; Lavea v Kerslake [2015] WSCA 3 (17 April 2015); Punitia v Tutuila [2014] WSCA 1 (31 January 2014), (Garret v Attorney General [1997] 2 NZLR 332; Samoa Party v Attorney General [2009] WSSC 23 (20 March 2009) Moala v Attorney General [2010] WSSC 1 (15 January 2010), Tafililupetiamalie v Attorney General [2015] WSSC 62 (30 June 2015); Sia v Peteru [1998] WSSC 37 (31 August 1998); Woodroffe v Mataia [2017] WSCA 5 (31 March 2017).

Summary of decision:

MATUALOTO FAUMUINA MAKESI STOWERS male of 12 Burcham Street, Taitai, Lower Hutt Wellington New Zealand.
Plaintiff

THE ATTORNEY GENERAL on behalf of the Samoa Land and Titles Court.
Second Defendant

Counsel:
O Woodroffe for Plaintiff
S Ainuu and S Sapolu for the First and Second Defendants
S Leung Wai for the Third Defendant.

[1] By Statement of Claim dated 22nd June 2018, the Plaintiff commenced these proceedings against the Defendants. The pleaded case against the Defendants are brought both for breach of Constitutional rights guaranteed by articles 9(1), 14(1) and 15(1) (Second Defendant) and misfeasance in public office (First and Third Defendants).

[2] Together with the Statement of Claim, the Plaintiff filed Further and Better Particulars and an affidavit “in support of his civil claims against the Defendants”.

[3] These proceedings concern an application by all Defendants to strike out the Plaintiff’s Statement of Claim either in its entirety or in part pursuant to:

[4] The principles governing the exercise of Court’s jurisdiction to strike out are well settled. There are two sources of the Supreme Court’s jurisdiction to strike out proceedings and rule 70 of the Rules provides:

"Where in any proceedings no cause of action is disclosed the Judge may, on the application of the defendant order the proceedings to be struck out." (emphasis added)

[5] In Woodroffe v Mataia [2017] WSCA 5 (31 March 2017), the Court of Appeal stated in terms of a strike out motion pursuant to rule 70 as follows:

“This jurisdiction, however, is to be sparingly exercised. A claim may be struck out as disclosing no cause of action only where it is plain and obvious that it is so clearly untenable that it cannot possibly succeed: see Sapolu CJ in Enosa v Samoa Observer Ltd.”

[6] The second source is the Supreme Court’s inherent jurisdiction. This includes the pleading or action being frivolous, vexatious or an abuse of process or failing to disclose a reasonable cause of action. In Enosa v Samoa Observer [2005] WSSC 6, Sapolu CJ referring to Bullen, Leake and Jacobs Pleadings and Precedents (12th edn, 1975), p 145, stated in terms of an action being frivolous or vexatious:

"A pleading or action is frivolous when it is without substance, groundless, fanciful, wasting the courts time or not capable of reasoned argument. A pleading or action is said to be vexatious when it is lacking in bona fides, hopeless, without foundation, cannot possibly succeed or is oppressive".

“15. As the judge below noted the application is to be dealt with on the assumption that the facts pleaded in the claim can be proved. An order striking out the claim may only be made if the causes of action are so clearly untenable that they cannot possibly succeed. If the claim can be saved by amendment of the pleadings, or parties, this may be permitted since a litigant’s right of access to the court is not to be lightly denied. Only when a claim is doomed to fail should an order striking it out be made.

16. That an application raises difficult and important questions of law and requires extensive argument does not exclude the jurisdiction...”

[8] In Kneubhl v Liugalua [2000] WSSC 27, Wilson J described the exercise of the inherent jurisdiction to strike out as follows:

“In Halsbury’s Laws of England (4th Edn.) Vol. 37, para 435), the legal position is stated as follows:-

"In addition to its powers under the Rules of the Supreme Court, the Court has an inherent jurisdiction to strike out pleadings and other documents ........... So, under its inherent jurisdiction the court may strike out the whole or part of the endorsement on a writ or stay or dismiss an action which is frivolous or vexatious or an abuse of process or which must fail or which the plaintiff cannot prove and which is without a solid basis ..... ..... The power to strike out, stay or dismiss under the court’s inherent jurisdiction is discretionary. It is a jurisdiction which will be exercised with great circumspection and only where it is perfectly clear that the plea cannot succeed; it ought to be exercised sparingly and only in exceptional cases [Lawrence v Lord Norreys [1890] UKLawRpAC 14; (1890) 15 AC 210 at p.219 per Lord Herschell]."

[9] In Chan Tung v Attorney General [2005] WSSC 24 (31 October 2005), Sapolu CJ considered misfeasance in public office and explained the elements of the tort in the following way:

“In Three Rivers District Council v Bank of England (No. 3) [2000] 3 All ER; [2000] UKHL 33; [2000] 2 WLR 1220, the House of Lords stated and explained the ingredients of the tort of misfeasance in public office. The ingredients of the tort as explained by Lord Steyn at pp 1230 – 1236 may be stated as follows:

(2) The impugned act must have involved exercise of power by the defendant as a public officer.

(3) The state of mind of the defendant. In this connection, Lord Steyn said at p. 1231:

“The case law reveals two different forms of liability for misfeasance in public office. First there is the case of targeted malice by a public officer, i.e. conduct specifically intended to injure a person or persons. This type of case involves bad faith in the sense of the exercise of power for an improper or ulterior motive. The second form is where a public officer acts knowing that he has no power to do the act complained of and the act will probably injure the plaintiff. It involves bad faith inasmuch as the public officer does not have an honest belief that his act is lawful.”

Further on when addressing the second form of the tort, Lord Steyn said at pp 1231-1232:

“It is not every act beyond the powers vesting in a public officer which will ground the tort. The alternative form of liability requires an element of bad faith.... Counsel for the Bank pointed out that there was no precedent in England before the present case which held recklessness to be a sufficient state of mind to ground the tort. Counsel argued that recklessness was insufficient. The Australian High Court and the Court of Appeal of New Zealand have ruled that recklessness is sufficient: Northern Territory v Mengel, 69 ALJR 27: Garnett v Attorney General [1997] 2 NZLR 332: Rawlinson v Rice [1997] 2 NZLR 651. Clarke J lucidly explained the reason for the inclusion of recklessness [1996] 3 All ER 558, 581:

‘The reason why recklessness was regarded as sufficient by all members of the High Court in Mengel is perhaps most clearly seen in the judgment of Brennan J. It is that misfeasance consists in the purported exercise of a power rather than in an honest attempt to perform the relevant duty. It is that lack of honesty which makes the act an abuse of process.’

The Court of Appeal accepted the correctness of this statement of principle [2002] 2 WLR 15, 61-62. This is an organic development, which fits into the structure of our law governing intentional torts. The policy underlying it is sound: reckless indifference to consequences is as blameworthy as deliberately seeking such consequences. It can therefore now be regarded as settled law that an act performed in reckless indifference as to the outcome is sufficient to ground the tort in its second form.”

Further on at p. 1232, Lord Steyn held that ‘reckless’ in this context is to be considered in a subjective rather than in an objective sense because of the requirement of bad faith in the exercise of public powers which is the justification for the existence of the tort of misfeasance in public office.

(4) Duty to the plaintiff, Lord Steyn at p. 1233 said that any person with a sufficient interest may sue in the tort of misfeasance in public office. If a public officer deliberately does an act which he knows is unlawful and causes economic loss to someone, that person may sue.

(5) Causation which is also an essential element of the cause of action for misfeasance in public office is a question of fact. It is unsuitable for summary determination.

(6) Damage and remoteness, Lord Steyn at p. 1235 accepted the view expressed by Clarke J at first instance that a test of foreseeability is not enough in this tort. Lord Steyn also accepted the test enunciated by Clarke J at first instance of knowledge by the public officer that the decision he makes would probably damage the plaintiff. In my view, this must include the situation where the public officer had foreseen that his act or omission would probably damage the plaintiff.”

[10] In terms of misfeasance in public office and the approach to a strike out motion of such an action, Sapolu CJ relevantly went on to state in Chan Tung v Attorney General (op. cit):

“For the purpose of the exercise of the summary jurisdiction to strike out a claim as not disclosing a reasonable cause of action, the Court proceeds on the assumption that the facts pleaded in the statement of claim are true, that is, capable of being proved. It is not enough, however, to plead that the defendant has committed, for example, a wilful misconduct in public office or the tort of misfeasance in public office as such misconduct would be more aptly described in legal terminology and then say that the statement of claim discloses a reasonable cause of action in the tort of misfeasance in public office. Specific facts must be pleaded to show that there is a reasonable cause of action in the tort as alleged. To take the same example again, a pleading of the tort of misfeasance in public office is not a pleading of a fact but an assertion of a legal conclusion which must be capable of being sustained by the facts as pleaded. While the Court, as mentioned earlier, would approach a motion to strike out a claim as not disclosing a reasonable cause of action on the assumption that the facts as pleaded are true or capable of being proved, that does not, in my opinion, apply to an assertion of a legal conclusion in the claim. The Court assumes the truthfulness of the facts as pleaded but not the correctness of the law as alleged. Likewise, it is not enough to allege misfeasance in public office in the pleadings and then say that the claim discloses a reasonable cause of action in the tort of misfeasance in public office if the facts which are pleaded do not bear out such a legal conclusion..” (emphasis added)

[11] In terms of breach of fundamental rights, the Plaintiff alleges that the Second Defendant breached articles 9(1), 14(1) and 15(1). These articles of the Constitution relevantly provide:

“9. Right to a fair trial - (1) In the determination of his or her civil rights and obligations or of any charge against him or her for any offence, every person is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established under the law...

14. Rights regarding property - (1) No property shall be taken possession of compulsorily, and no right over or interest in any property shall be acquired compulsorily, except under the law which, of itself or when read with any other law:

(a) Requires the payment within a reasonable time of adequate compensation therefore;

(b) Gives to any person claiming that compensation a right of access, for the determination of his or her interest in the property and the amount of compensation, to the Supreme Court; and

(c) Gives to any party to proceedings in the Supreme Court relating to such a claim the same rights of appeal as are accorded generally to parties to civil proceedings in that Court sitting as a Court of original jurisdiction.

15. Freedom from discriminatory legislation - (1) All persons are equal before the law and entitled to equal protection under the law.

[12] In terms of the Court’s power to award damages for a breach of fundamental rights, the Court of Appeal in Punitia v Tutuila [2014] WSCA 1 (31 January 2014) stated:

“[45] ... Those decisions make it clear that in Samoa, as in equivalent overseas jurisdictions, breach of the fundamental rights and freedoms conferred by the Constitution can itself give rise to liability for damages in appropriate circumstances. In Samoa the power to impose damages flows from Article 4 which provides:...”

[13] The Plaintiff is a family member of Chief Tusani Mafua of Tafagamanu Lefaga with customary rights over customary land known as Maugaoli. Land neighbouring Maugaoli is known as Suo belonging to the Masinalupes (Third Defendant’s extended family).

[14] According to the Plaintiff, the boundary between Maugaoli and Suo had changed without his or his family’s knowledge and consent. In 1979, a map of the boundary between the two villages of Safa’ato and Tafagamau was approved by the Registrar of Lands with the boundary of the two adjacent lands Maugaoli and Suo going “right up to the Tuasivi.”

[15] By decision LC6383P4 and P5 dated 25 March 1991, the Plaintiff pleads that the Second Defendant changed the boundary between the two villages without their knowledge resulting in a reduction in the size of Maugaoli. The Second Defendant also failed to consider the Plaintiff’s evidence before rendering its judgment LC10547 P4 – P6.

[16] In his affidavit dated 24th August 2018, the Third Defendant states that a ruling concerning the boundary between Safa’atoa and Tafagamanu was made on the 14th May 1979 L.C 6383 (Plan 712A). He says that boundary has remained and been re-confirmed in subsequent decisions of the Land and Titles Court on 26 September 1991 (LC 6383 P4 and P5) and again on 2 March 2012 (LC 10547 P4 – P6).

[17] Following its judgment of 2 March 2012, the chronology based on the Plaintiff’s Statement of Claim, his Affidavit and that of Tuiloma Lopez Williams can be summarized as follows:

“I filed our original appeal on 28 March 2012; it is now over six (6) years since I filed that appeal. It appears to me that the LTC would accept whatever reason(s) that Masinalupe would put through for an adjournment. This is deliberately done, in order to frustrate and stall the process towards a full re-examination as ordered by the President for the LTC in his decision of 9 December 2016.

The LTC has denied me my rights under section 9 of the Constitution of Samoa 1960 “every person is entitled to a fair and public hearing within a reasonable time...”

[19] In terms of the First Defendant, the Plaintiff alleges that five criminal complaints were lodged with the Ministry of Police (complaints 14860, 18533, 29212, 28608 and 29212 (repeated)). The first complaint was lodged on the 3rd November 2011 (complaint 14860). A second complaint was lodged on the 4th October 2012 (complaint 18533) with further complaints lodged on the 6th December 2013 (complaint # 29212), 28th March 2014 (complaint # 28608) and the 14th September 2015 (complaint # 29212). The criminal complaints variously involve, as far as I can ascertain from the pleadings, wilful damage to a taro plantation (paragraph 32); damage to a fence (paragraph 34); and possibly other damage but which is unclear on the pleadings.

[20] After the fifth complaint was lodged alleging “wilful and intentional damage” to wire fencing and a taro, plantation, Toaloaina Fagalima, a member of the Third Defendant’s family was charged. Police however ceased their investigation when the Ministry of Police received a phone call from the Third Defendant in which he is alleged to have said to the Third Defendant “to stop their investigation due to the fact that the matter had been resolved by the Land and Titles Court”, this allegedly a false statement by the Third Defendant resulting in the First Defendant (Ministry of Police) ceasing to investigate the Plaintiff’s fifth complaint.

[21] In terms of the Third Defendant, whilst the Plaintiff was awaiting the hearing of the appeal of the Land and Titles Court decision of 2nd March 2012 LC 10547 P4 – P6, it is alleged that members of the Third Defendant’s family were actively causing considerable damage to the Plaintiff’s property. The Third Defendant is alleged to have acted illegally by using his status as the Chief Executive Officer of the Ministry of Justice and Courts Administration to stop the Police investigation, by providing to the Police a false statement that the First Defendant had dealt with the matter in dispute and which was the subject of the Police investigation.

[22] The proceedings brought against the First Defendant is for misfeasance in public office. It is alleged that when the “Police” exercised their power “in deciding whether to act or not to act on the telephone call made to them by the Third Defendant, they should have known that the Third Defendant had no actual power to direct the actions of the Police in a criminal investigation.” The “Police” were therefore influenced by the invalid power exerted by the Third Defendant and that by taking no further action, “the Police” committed an act or omission which itself was invalid. By choosing to act in accordance with an invalid and unlawful direction from the Third Defendant, the “Police” themselves had acted ultra vires of their own power. It is not alleged that the actions of the First Defendant through its Police Officers was targeted malice but in the second form of bad faith, namely that the public officer act(ed) knowing that he has no power to so the act complained of and the act will probably injure the plaintiff”, ie. the public officer acted with reckless indifference.

[23] In terms of the Third Defendant, it is also alleged that he has committed misfeasance in public office. It is alleged that when the Third Defendant called the First Defendant, he purported to exercise a power that was an incident of his public position. When he directed the Police to stop their investigation, he did so using his position as Chief Executive Officer of the Ministry of Justice or as a Judge of the Land and Titles Court and when he did so, he did so in bad faith in terms of both targeted malice against the Plaintiff and in the alternative, with reckless indifference.

[24] In terms of the Second Defendant, it is alleged that the delay caused by the Second Defendant granting the various adjournments and in hearing the Plaintiff’s appeal in the Land and Titles Court, that constitutes a breach of the Plaintiff’s right to a fair trial within a reasonable time guaranteed by article 9(1) of the Constitution (paragraph 51, SOC). By its failure to “take steps within a reasonable time, to establish the correct boundary between the plaintiff’s customary land of Maugaoli and Suo resulting in loss of access and use of the customary land of the Plaintiff’s family that was cultivated and lived on, by the plaintiff’s ancestors. Part of the plaintiff’s customary lands have been compulsorily taken and is continually being used by the third Defendant’s family”, that also constitutes a breach of article 14(1) of the Constitution (paragraph 52, SOC). By granting to the Third Defendant many adjournments of the hearing of the appeal that was filed on the 28th March 2012 without due consideration to the impact of the delay on the Plaintiff and his family, the Second Defendant is alleged to have also breached article 15(1) of the Constitution (paragraph 53, SOC).

[25] In the First and Second Defendant’s Notice of Motion to Strike Out the Statement of Claim, the First Defendant includes as a ground of its strike out motion that the Plaintiff’s claim against the First Defendant was not commenced before the expiration of 1 year from the date in which the action accrued.

[26] Counsel for the Plaintiff in her submissions says that section 21 of the Limitation Act 1975 does not apply “as the acquiescence of the First Defendant is an ongoing act.”

[27] At this juncture, it is premature to strike out the proceedings against the First Defendant on the grounds of non-compliance with section 21 of the Limitation Act 1975. It is arguable that it is a continuing default under section 21(1)(b) of the Limitation Act 1975 and therefore, the limitation period has not been exhausted. This question may also be quite fact specific. I am therefore not satisfied that it is perfectly clear the claim against the First Defendant on this basis cannot succeed because of the limitation period

[28] The First Defendant’s strike out motion is also brought on the basis that as pleaded, even if the facts were accepted, the elements for the tort of misfeasance in public office are not made out.

[29] The first difficulty for the Plaintiff’s proceedings against the First Defendant as pleaded is that the Plaintiff does not specifically identify which Police Officer is alleged to have committed misfeasance in public office with particulars of the alleged conduct of that ‘public officer’ thereby making the First Defendant liable to the Plaintiff on the basis alleged. During the course of her submissions, this issue was raised directly with counsel for the Plaintiff:

“HH Mrs Woodroffe, if we can do this step by step dealing with the police officers and how you say the third defendant (sic) committed misfeasance in public office. I will read through your submissions. ... Dealing with that the defendant was be a public officer, this is for misfeasance in public office. So you are referring to two police officers and you are saying that they are public officers?

Woodroffe we have no idea your Honour and that’s unfair that’s why we used because we asked for disclosure of information from the police. Thus far, we haven’t got it except that letter and the other evidence we rely on is the actual stopping

[30] However, in response to the First Defendant’s Request for Further and Better Particulars to paragraph 43 of the Statement of Claim seeking various particulars including whether the Police Officer who allegedly ceased the investigation, the Plaintiff responded that:

“On a date unknown to the Plaintiff the third defendant contacted the Police and spoke to the assistant police commissioner, Fauono Talalelei Tapu in which he advised Police Constable Misi Poutoa to stop the investigation due to the fact that the matter had been resolved by the third defendant...the plaintiff was not informed by Police Constable Misi Poutoa that as a result of the telephone call from the third defendant, the Police had ceased to investigate the plaintiff’s fifth complaint.”

[31] As Sapolu CJ further stated in Chan Tung v Attorney General [2005] WSSC 24 (31 October 2005) referring to Three Rivers District Council v Bank of England (No. 3) [2000] 3 All ER:

“On the question of bad faith which I consider to be crucial to the consideration of the defendant’s strike out motion in these proceedings and how bad faith should be pleaded, Lord Hobhouse of Woodborough said at p.569:

“The tort of misfeasance in public office is a tort which involves bad faith and in that sense dishonesty. It follows that to substantiate his claim in this tort, first in his pleading and then at the trial, a plaintiff must be able to allege and then prove this subjectively dishonest state of mind. The law quite rightly requires that questions of dishonesty be approached more rigorously than other questions of fault. The burden of proof remains the civil burden – the balance of probabilities – but the assessment of the evidence has to take account of the seriousness of the allegations and, if that be the case, any unlikelihood that the person accused of dishonesty would have acted in that way. Dishonesty is not to be inferred from evidence, which is equally consistent with mere negligence. At the pleading stage the party making the allegation of dishonesty has to be prepared to particularise it and, if he is unable to do so, his allegation will be struck out: (emphasis mine)”

“In the English Court of Appeal in the case of Laceys Footwear (Wholesale) Ltd v Bowler International Freight Ltd [1997] EWCA, Beldam LJ said:

“Few phrases have been more fully considered in decisions of the Courts than ‘wilful misconduct.’ The definition most usually adopted is that put forward by Lord Alverstone CJ in Forder v Great Western Railway Company [1905] UKLawRpKQB 129; [1905] 2 KB 532 where, with an addition, he adopted the definition of ‘wilful misconduct’ given by Jackson J in Graham v Belfast and Northern Countries Ry Co [1901] 2 IR 13:

‘Wilful misconduct in such a special condition means misconduct to which the will is party as contra-distinguished from accident, and is far beyond any negligence, even gross or culpable negligence, and involves that a person wilfully misconducts himself who knows and appreciates that it is wrong conduct on his part in the existing circumstances to do, or to fail or omit to do (as the case may be) a particular thing and yet intentionally does or fails or omits to do it, or persists in the act, failure or omission regardless of the consequences.’

[33] I have no difficulty accepting that sworn ‘Police Officers’ are public officers (Garret v Attorney General [1997] 2 NZLR 332; Government Proceedings Act 1974 s.) For a claim for misfeasance in public office to succeed however, the Plaintiff must expressly identify in his pleadings the ‘public officer’ against whom the allegation is made and particularize that claim as against that specific public officer. The facts pleaded must be able to sustain the legal conclusion of misfeasance in public office that the Plaintiff is asking the Court to uphold at trial. It must be ‘far beyond any negligence, even gross or culpable negligence, and involves that a person wilfully misconducts himself who knows and appreciates that it is wrong conduct on his part in the existing circumstances to do, or fail or omit to do (as the case may be)...’

[34] In my view, the facts as pleaded by the Plaintiff in support of his action for misfeasance in public office against the First Defendant is poorly pleaded both in content and structure, disjointed and is somewhat confusing. As it stands, the claim against the First Defendant is weak. At this juncture however, I am not satisfied that if properly pleaded, it can be said to be entirely frivolous and vexatious such as to exercise my inherent jurisdiction to strike it out. The jurisdiction to strike out is a discretionary jurisdiction that is to be exercised with great circumspection and only where it is perfectly clear that the plea cannot succeed.

[35] I will therefore allow the Plaintiff an opportunity to amend his Statement of Claim to re-plead his cause of action against the First Defendant. The Plaintiff must bear in mind that ‘[d]ishonesty is not to be inferred from evidence, which is equally consistent with mere negligence’. He should, through counsel, carefully consider each element of the tort and particularise the facts that support each element. If he is unable to properly particularise his claim, then he may wish to consider discontinuing his claim against the First Defendant. If he persists in those circumstances and is unsuccessful at the end of the day, he will have a costs issue to deal with. If the Plaintiff fails to properly particularise his claim, then the First Defendant may file a further strike out motion if it so determines.

[36] The Plaintiff pleads that his ‘Third Cause of Action’ against the Second Defendant is for breaches of articles 9(1), 14(1) and 15(1) of the Constitution. Each alleged breach however is a separate cause of action. There are therefore three pleaded causes of action against the Second Defendant.

[37] The Second Defendant applies to strike out the Plaintiff’s claim ostensibly on the grounds that (a) judicial immunity applies to the Second Defendant; (b) the facts pleaded by the Plaintiff do not support the allegations of breaches of his Constitutional rights (articles 9(1), 14(1) and 15(1)). Alternatively, at no material time did the Second Defendant breach the Plaintiff’s Constitutional rights.

[38] These grounds are addressed in the written submissions on behalf of the Second Defendant at paragraphs 5 and 6 inclusive.

[39] The Plaintiff on the other hand does not address these two grounds of the strike out motion both in terms of (a) judicial immunity and (b) articles 9(1), 14(1) and 15(1)) of the Constitution. Instead, his submissions have focused on the misfeasance in public office claim against the First Defendant.

[40] For the reasons that follow, the proceedings against the Second Defendant will be struck out as the plaintiff’s claim is plainly and obviously clear that it cannot possibly succeed.

[41] In Tafililupetiamalie v Attorney General [2015] WSSC 62 (30 June 2015) following the leading judgment of McGrath and William Young JJ in Attorney General v Chapman [2011] NZSC 110, Sapolu CJ stated in terms of actions for damages arising from alleged breaches of fundamental rights article 9(1) by the judicial arm of the State:

“49. It would also be clear from the judgment of McGrath and William Young JJ in Attorney General v Chapman [2011] NZSC 110, that reliance by the plaintiff on Article 9 of the Constitution for the alleged breaches of his right to a fair trial cannot sustain his claim for damages in the face of the principle of judicial immunity.

50. It must follow from all of this that the plaintiff’s claim is plainly and obviously untenable and cannot possibly succeed. It is therefore struck out.”

[42] There is no reason that the judicial immunity does not also extend to the alleged breaches by the Second Defendant in terms of articles 14(1) and 15(1) as pleaded following what was said in Attorney General v Chapman applied by Sapolu CJ in Tafililupetiamalie v Attorney General. Accordingly, all three causes of action against the Second Defendant on this basis will be struck out.

[43] Whilst The Plaintiff’s claim against the Second Defendant is plainly and obviously untenable by virtue of the doctrine of judicial immunity that I have just touched on in terms of claims for damages for alleged breaches of Part II of the Constitution, I will nevertheless also deal with the allegations of breaches of the Constitution by the Second Defendant.

[44] It is alleged that the Second Defendant’s failure ‘within a reasonable time to determine the correct boundary between Maugaoli land and Suo...’ breached article 9(1). It is not disputed by the Second Defendant that the ‘delay between the Application for Leave to Appeal and the Appeal being heard is approximately 7 years.’ It is however contended that ‘[t]he delays were necessary...’

[45] Judgments of the Land and Titles Court are final judgments of the Court (section 63, Land and Titles Act 1981). A judgment of the Land and Titles Court “is deemed to be judgment in rem and shall bind all Samoans who are affected by it, whether parties to the proceedings or not.” (section 70, Land and Titles Act 1981). A judgment however is subject to appeal under Part 9 of the Land and Titles Act 1981 but remains in force and effect unless overturned on appeal. The correct boundary, insofar as the Land and Titles Court was concerned, had been determined.

[46] Second, the appeal brought by the Plaintiff was dismissed by the Second Defendant on the 26th March 2019. The Second Defendant had therefore re-affirmed the judgment of the Court at first instance and the decision under appeal was upheld. The judgment rendered on the 2nd March 2012 remains undisturbed. The ‘correct boundaries’ were as determined in 2012.

[47] Third, in Punitia v Tutuila [2014] WSCA 1 (31 January 2014), the Court of Appeal stated:

“[67] The Courts will not grant damages in every case in which there has been a breach of the constitution causing harm to the plaintiff. Relief for a constitutional breach must be tailored to the particular case. In some cases the modest nature of the breach, or the minor harm to the plaintiff, will mean that no remedy is warranted at all other than perhaps a declaration. Some cases may call for an injunction. In some, nothing less than monetary relief will meet the case: Baigent’s Case, supra; Maharaj v Attorney-General of Trinidad and Tobago (No 2) [1978] UKPC 3; [1979] AC 385; [1978] 2 All ER 670 (PC).”

[48] In the circumstances of this claim, even if there was unreasonable delay in the hearing of the appeal (which I do not need to determine), there is no harm to the Plaintiff nor any prejudice. The judgment of the Second Defendant at first instance has been upheld.

[49] The second cause of action against the Second Defendant alleges a breach of article 14 that the Second Defendant “by its failure to take steps within a reasonable time, to establish the correct boundary between the Plaintiff’s customary land of Maugaoli and Suo customary land of the family of the third defendant, resulting in the loss of access and use of the customary lands of the plaintiff’s family that was cultivated and lived on, by the plaintiff’s ancestors...’

[50] This claim by the Plaintiff misconstrues article 14. There has been no compulsory acquisition, either by the Third Defendant or anyone associated with him nor has there been a compulsory acquisition of the land by the State or the Second Defendant on behalf of the State. This has been a dispute between two competing parties in relation to customary ownership over land and the boundaries associated with those customary lands. The Land and Titles Court relevantly made a determination on the issues between the parties in 2012. That decision was a final decision and deemed a judgment in rem binding all Samoans affected by it, whether parties or not (s. 70, LTC Act). The Land and Titles Court found against the Plaintiff and his family and on appeal brought by the Plaintiff and his family members, the Appellate Division dismissed the appeal. The Plaintiff and his family members do not have a customary interest in the land they claim to have been deprived of.

[51] More relevantly however is the application of Article 14 of the Constitution. It is pleaded that “[p]art of the plaintiff’s customary land have been compulsorily taken and is continually being used by the third Defendant’s family.” In discussing article 14 of the Constitution, the Court of Appeal relevantly stated in Lavea v Kerslake [2015] WSCA 3 (17 April 2015):

“However art 14 is concerned with compulsory acquisitions by the state. “Compulsory acquisition” is a convenient phrase to refer to both the compulsory acquisition of title and the compulsory acquisition of possession. But in either case it is confined to acquisition by the state. It is not concerned with rights of competing private individuals...”

[52] Similarly, in Attorney General v Leapai [2017] WSSC 105 (31 July 2017) at [27], Sapolu CJ stated:

“The alleged breach of the right to adequate compensation under Article 14 of the Constitution for property compulsorily taken does not apply in this case. That is because this case does not involve any compulsory acquisition of any of the applicants property or properties. What had happened was that the 1996 default judgment had cancelled survey plans and a cadastral which has affected the lands claimed by the second to eighth applicants to be their lands. That cannot be compulsory acquisition of lands Article 14 is referring to.”

[53] There has been no compulsory acquisition by the State. Furthermore, the Land and Titles Court has upheld on appeal, the determined property interests in the land and the rightful customary owners to that land in dispute at first instance. The Plaintiff never had an interest in that land and the Plaintiff cannot therefore be deprived of something he never had an interest in in the first place. The claim brought pursuant to article 14 of the Constitution is without merit.

[54] The final limb that proceedings against the Second Defendant are brought is that by granting the Third Defendant’s ‘many adjournments of the hearing of the Plaintiff’s Appeal that was filed on the 28 March 2012, without due consideration to the impact of the delay on the plaintiffs and his family’, the Second Defendant has breached article 15(1) of the Constitution (emphasis added). In essence, the Plaintiff claims that by the granting of the adjournments by the Second Defendant, he has been discriminated against in a manner inconsistent with equal treatment before the law and his entitlement to equal protection under the law.

[55] Having perused the pleadings, there are no particulars in the pleadings to support the allegation that the Plaintiff has not enjoyed equal treatment before the law or that he has not enjoyed equal protection under the law. Simply asserting that the Second Defendant has granted adjournments ‘without due consideration to the impact of the delay on the Plaintiff and his family’ is not by itself discriminatory in terms of article 15(1) and falls well short of making out a cause of action on the basis of unequal treatment and unequal protection under the law.

[56] The Second Defendant’s grounds for strike out is that article 15 does not apply because the ‘discrimination’ alleged does not come within sub-article 15(2), that is, on the grounds of “descent, sex, language, religion, political or other opinion, social origin, place of birth, family status, or any of them.’

[57] The Second Defendant has not referred to any authorities to support the contention that article 15(1) is expressly qualified by article 15(2). I have considered the submissions by the Second Defendant and referred to various authorities including Attorney-General v Saipa'ia [1982] WSLawRp 3; [1980-1993] WSLR 41 (16 July 1982), Sia v Peteru [1998] WSSC 37 (31 August 1998), Efi v Attorney-General of Samoa [2000] WSSC 22 (1 August 2000), Samoa Party v Attorney General [2009] WSSC 23 (20 March 2009) Moala v Attorney General [2010] WSSC 1 (15 January 2010), Hunt v Police [2006] WSCA 5 (26 April 2006) and other authorities and I have not understood those authorities to provide that article 15(1) is to be read and qualified by article 15(2). Indeed, in Sia v Peteru (op. cit) and Samoa Party v Attorney General (op. cit), it appears that article 15(1) is distinct from and broader then article 15(2). I however did not hear submissions on this point and make no finding on this question.

[58] The proceedings against the Third Defendant alleges misfeasance in public office by the Third Defendant. Proceedings are brought personally in the name of the Third Defendant as ‘an ex Chief Executive Officer of the Ministry of Justice and Courts Administration and recently appointed Judge of the Land and Titles Court.’

[59] Principally, the allegations relate to (a) the Third Defendant allegedly acting illegally using his ‘status as the Chief Executive Officer...to stop the Police Investigation, by providing a false statement that LTC Court has dealt with the matter in dispute, that was under Police investigation’; and (b) that he used his power and position in causing delays to have the Plaintiffs appeal filed in March 2012 heard.

[60] The Third Defendant applies to strike out the proceedings on the basis that (a) at all material times, he was the Registrar of the Court carrying out his duties as Registrar of the Court and is entitled to judicial immunity and the protection afforded by section 6(3) of the Government Proceedings Act 1974; (b) there was no targeted malice nor did the Third Defendant act in bad faith in the sense of the exercise of power for an improper or ulterior motive or acting knowing that he had no power to do the purported act complained of and will probably cause the Plaintiff damage; (c) the Plaintiff suffered no damage or loss as alleged; and (d) the Land and Titles Court decision at first instance remained in force.

[61] The Plaintiff on the other hand submits that judicial immunity applying to a Registrar only applies to a Registrar exercising a judicial function. Interfering in a Police investigation causing the Police to stop an investigation into the activities of the Third Defendant’s family members is not exercising a judicial function and therefore, judicial immunity does not apply.

[62] The Registrar of the Land and Titles Court when exercising a judicial function has judicial immunity (Land and Titles Court v Kalevini [2017] WSCA 8 (15 September 2017). In this case, it is alleged by the Plaintiff that in the course of a dispute before the Land and Titles Court between the Plaintiff and Third Defendant, the Third Defendant purportedly in his capacity as Chief Executive Officer of the Ministry of Justice and Courts Administration (but according to the Third Defendant, in his capacity as Registrar of the Land and Titles Court) contacted Police concerning judicial proceedings in which he was a party and also in which purportedly involved criminal complaints against a family member. In his affidavit dated 24th August 2018, the Third Defendant states in terms of Court orders in the proceedings before the Land and Titles Court:

“15. Since the Applicants did not comply with the order I accordingly informed Police on 9 October 2012. I also informed Police that the Land and Titles Court had ruled in our favour on the boundary between Maugaoli and Suo....

17. I was fully aware as the Registrar I do not interfere nor obstruct the Police in their investigations. It is a criminal offence for any person to do so. I simply had informed the Police of the Land and Titles Court decisions confirming the correct boundary between Suo and Magaoli....” (Emphasis added)

[63] In Tafililupetiamalie v Attorney General (op. cit), Sapolu CJ at para [31] to [42] discussed the authorities from various jurisdictions concerning judicial immunity. At para [40], he referred to the judgment of McGrath and William Young JJ at para [161] in Attorney General v Chapman (op. cit) which stated:

“[161] At common law the Judges of superior Courts have always had immunity from suit. In Nakhla v McCarthy[1978]1 NZLR 291, the Court of Appeal held that the immunity was absolute in respect of actions taken in the discharge of judicial responsibilities, involving execution of judicial functions, as opposed to individual acts not done in the course of office. Such actions were outside the Judges jurisdiction and not protected by immunity within which Judges must act. In 1999, the Court of Appeal confirmed the wide scope of common law judicial immunity in Gazley v Lord Cooke of Thorndon [1999] 2 NZLR 668”. (emphasis added)

[64] At this juncture, I am not prepared to strike out the claim against the Third Defendant on the grounds of judicial immunity. I am not satisfied that it is plain and obvious that the cause of action is so clearly untenable that it cannot possibly succeed or that it is frivolous, vexatious or an abuse of process. First, I am not satisfied that judicial immunity applies within the context in which the Third Defendant is alleged to have contacted Police. In this regard, I am not satisfied that even if he was purportedly acting in his capacity as the Registrar, that he was carrying out a “judicial function”. Second, on his own affidavit evidence, I have doubts that in his own mind, the Third Defendant was acting in the discharge of judicial responsibilities, executing judicial functions. At paragraph 15 of his affidavit, the Third Defendant himself refers to his communication with Police as having informed Police that the Land and Titles Court had ruled in “our” favour. That appears to be in his personal capacity in the Land and Titles Court proceeding as opposed to his role as Registrar. If what the Third Defendant appears to be saying is correct, he was not acting in the discharge of his judicial responsibilities as Registrar.

[65] In relation to the other grounds of the Third Defendant’s strike out motion, I accept that the Plaintiff’s pleadings are deficient and whilst the allegations against the Third Defendant for misfeasance in public office appear weak and are susceptible to being struck out, I will grant the Plaintiff an opportunity to amend the pleadings.

[66] In the Plaintiff’s Notice of Opposition to the Third Defendant’s Strike Out Motion, the Plaintiff states as a ground to oppose the strike out motion at paragraph 6 that “...the Third Defendant is being sued due to his personal actions which are contrary to the law and further denies that the Third Defendant is being sued in his personal capacity solely as a member of the extended family with rights to the customary land in question.”

[67] Further at paragraph 8(a), the Plaintiff goes on to state that the Third Defendant’s actions “were not carried out in the course of the Third Defendant’s functions as either the Chief Executive of the Ministry of Justice and Courts Administration or as a Judge of the Land and Titles Court...”

[68] These pleadings in opposition seem to run contrary to the cause of action pleaded against the Third Defendant, namely, misfeasance in public office.

[69] I encourage counsel for the Plaintiff to carefully consider the elements of the cause of action for misfeasance in public office, the requirements for proper particulars to be set out in the Statement of Claim and to consider what I have said when addressing the amendments for which leave is hereby granted.

[71] The Plaintiff is ordered to file and serve his amended Statement of Claim within 14 days.

[72] Counsel for the Plaintiff and Second Defendant are to reach agreement as to costs. If agreement cannot be reached, counsels are to file and serve their Memorandum as to Costs within 21 days of the date of this judgment.

[73] This matter will be re-mentioned on Monday 7 October 2019 at 2.00pm at civil mentions.

Supreme Court of Samoa

Stowers v Attorney General [2019] WSSC 59 (18 September 2019)