Fesili v Attorney General [2020] WSSC 22 (3 February 2020)

IN THE SUPREME COURT OF SAMOA
Fesili v Attorney General & Ors [2020] WSSC 22

Case name:	Fesili v Attorney General & Ors
Citation:	[2020] WSSC 22
Decision date:	03 February 2020
Parties:	GALUVAA SALE POIVA FESILI, Administrator of the Estate of Fuapepe Fesili, Deceased (Applicant) vs. THE ATTORNEY GENERAL for and on behalf of the MINISTRY OF NATURAL RESOURCES AND ENVIRONMENT (First Respondent) and ULUGIA ALEX STANLEY and ULUGIA TITO KAMU, suing individually and in a representative capacity for and on behalf of the beneficiaries of the ESTATE OF CHARLES COWLEY (Second Respondents) and TOFAEONO AUFATA PUPI and LEO’OLAKI TULAGA, both of Vaigaga, for and on behalf of the lawful descendants of CECILIA BURMEISTER (Third Respondents).
Hearing date(s):	11 December 2019
File number(s):
Jurisdiction:	CIVIL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Mata Keli Tuatagaloa
On appeal from:
Order:	For the foregoing reasons, the Motion to Strike-Out is dismissed. Costs are reserved until after the hearing of the Motion for Declaratory Orders.
Representation:	S Perese for Applicant DJ Fong for First Respondent K Koria for Second Respondents J Brunt for Third Respondents
Catchwords:	land dispute.
Words and phrases:
Legislation cited:	Limitation Amendment Act 2012; Supreme Court (Civil Procedure) Rules, r. 70.
Cases cited:	AQM Ltd v Westfield Holdings Ltd [2009] WSSC 1 (7 January 2009); Enosa v Samoa Observer Company Limited [2005] WSSC 6 (29 April 2005); Galuvaa Poiva Fesili & Anor v Samoa Land Corporations & Ors, 15 November 2013 (Unreported); Woodroffe v Fisher & Attorney General Woodroffe v Fisher [2017] WSCA 9 (15 September 2017).
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

IN THE MATTER: of the Declaratory Judgments Act 1988 and the Law Reform Act 1964

AND:

IN THE MATTER: of section 5 of the Land Registration Act 2008, concerning Court Grant 631 purported to be recorded in Volume 1 Folio 150 of the Land Register.

BETWEEN:

GALUVAA SALE POIVA FESILI, Administrator of the Estate of Fuapepe Fesili, Deceased

Applicant

AND:

THE ATTORNEY GENERAL for and on behalf of the MINISTRY OF NATURAL RESOURCES AND ENVIRONMENT

First Respondent

AND:

ULUGIA ALEX STANLEY and ULUGIA TITO KAMU, suing individually and in a representative capacity for and on behalf of the beneficiaries of the ESTATE OF CHARLES COWLEY.

Second Respondents

AND:

TOFAEONO AUFATA PUPI and LEO’OLAKI TULAGA, both of Vaigaga, for and on behalf of the lawful descendants of CECILIA BURMEISTER

Third Respondents

Counsels: S Perese for Applicant
DJ Fong for First Respondent
K Koria for Second Respondents
J Brunt for Third Respondents

Hearing: 11 December 2019

Judgment: 03 February 2020

JUDGEMENT OF JUSTICE TUATAGALOA
(Application to Strike – Out)

1. This judgment concerns the Motions to Strike-out by the Second and Third Respondents of the Applicant’s Motion for Declaratory Orders filed and dated 14 January 2019.

Background

2. The Applicant claims that they own land known as ‘Mateao’; which they claim is Parcel 91 and part of Parcel 90 on Court Grant 631.

The Declaratory Orders Sought

3. The Applicants seek from the Court the following by way of declaratory orders:
   • (A) Declaring that the references to Court Grant 631 in the Land Register (Volume 1 Folio 150); the related survey plan (Flur Plan VIII) and all other survey plans that derive from Flur Plan VIII or currently showing Court Grant 631 as being located on Parcels 90 and 91 are incorrect, and directing the Respondent to correct the error.
   • (B) Declaring that Mateao is located on Parcels 90 and 91;
   • (C) Declaring that Mateao is a fee simple estate owned by Leupolu as to Parcel 91 in full and as to part of Parcel 90; that the land is now owned by the Applicant;
   • (D) Ordering that Mateao be surveyed;
   • (E) Vesting Mateao in the Applicant as Administrator of the Estate of Fuapepe Fesili; and

(F). Costs.

The Grounds of the Strike-out

4. The Second and Third Respondent seek to strike-out the Applicant’s Motion for Declaratory Orders upon the following grounds:
   • (i) The Motion is frivolous, vexatious and abuse of court process. The Applicant’s Motion is an attempt to revive claim to possessory title of land already dealt with by the Court in 2013. That is, the very same lot of land (Court Grant 631) was the subject of proceedings brought by the Applicant and others of his family pursuant to a Statement of Claim dated and filed on 13 November 2009 (and amended on 24 April 2012) that was struck out by the Court in 2013;^[1]
   • (ii) The doctrine of res judicata applies to the Motion; and
   • (iii) Furthermore, the Motion discloses no reasonable cause of action.
5. The Second and Third Respondents submit that the Applicant in the earlier proceedings filed in 2009 (CP245/09) pleaded the following facts:
   • (a) That the land referred to as Court Grant 631 is known as ‘Tiamoli’ according to Samoan custom and usage; and
   • (b) That the Applicant and his ancestors had enjoyed uninterrupted occupation of ‘Tiamoli’ since the issue of Court Grant 631 on 3 February 1897.
6. The Second and Third Respondents say that the pleadings by the Applicant in the present proceedings contradicts their (applicant’s) stance and understanding they undertook when they brought proceedings in 2009 and ruled on by the Court in 2013. In the present proceedings they now claim the land to be known as ‘Mateao’ and it is freehold land.

Applicant’s Response to Motion to Strike-Out

7. Counsel for the Applicant in both written and oral submissions highlighted that the proceedings of 2009 (CP245/09) and present are distinguishable as follows:
   • (i) In CP245/09 Mr. Poiva Fesili acted in his personal capacity. In the present proceedings he acts in his capacity of the Administrator for the Estate of Fuapepe Fesili;
   • (ii) In CP245/09 the substantive issues of fact and law were not and did not need to be decided by the Court because the claim was barred by the Limitation Amendment Act 2012. Therefore, there can be no res judicata advanced on the basis of issue estoppel;
   • (iii) The issues raised in the present proceeding do not pertain to the issues raised in CP245/09. The issues for determination in this matter arise from a different factual matrix altogether: (in verbatim)
     • (a) In CP245/09 the contest was a claim against the registered proprietors of Court Grant 631 which is presently located on Parcels 90 and 91 of Survey Plan 19F/44;
     • (b) However, it turns out that the registered proprietors of Court Grant 631 are not the owners of Parcels 90 and 91 at all, and that is because Court Grant 631 has not been surveyed;
     • (c) In this case the contest is seeking for an order that records held by the Registrar on the Register, including Survey Plan 19F/44, be corrected to remove the reference that suggests Court Grant 631 is located on Parcels 90 and 91. Once this reference has been removed, the Applicant on behalf of the Estate will be to able apply to the Land Commission to recognize the purchase of the land made by Leupolu from To’omalatai in 1871.

The issue

8. The issue is whether the current proceedings have already been dealt with in CP245/09. If so, the doctrine of res judicata applies and the Motion for Declaratory Orders is to be struck out.

Applicable principles

9. The court’s jurisdiction regarding strike-out application is well settled both in Samoa and foreign origin^[2] that:
   • (a) Pleaded facts are assumed to be 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; and
   • (d) The court should be particularly slow to strike-out a claim in any developing area of the law.
10. It is clear from the submissions of counsels that their applications to strike-out are made pursuant to Rule 70 Supreme Court (Civil Procedure) Rules or, pursuant to the inherent jurisdiction of the court.
11. The application to strike-out made pursuant to Rule 70 will fail if a cause of action is disclosed.
12. While as, if the application to strike-out is made pursuant to the inherent jurisdiction of the Court, then special rules apply as in [9] above. The Court in its inherent jurisdiction may strike-out an action which is frivolous or vexatious or an abuse of process or which must fail and which is without a solid basis. The power to strike-out under the court’s inherent jurisdiction is discretionary. It is a jurisdiction which will be exercised sparingly and with great circumspection and only where it is perfectly clear that the plea cannot succeed.

Discussion

13. It is clear that the Applicant in the current proceeding was also an Applicant in the earlier proceeding in 2009 (CP245/09) and that the registered co-owners of Court Grant 631 were also represented by their descendants in the earlier proceeding.
14. The claim in the earlier proceeding was a claim of adverse possession. The land in the claim of adverse possession is the same land involved in the current proceedings. The current proceedings is a Motion for Declaratory Orders (amongst others) to correct the land register that Parcel 91 and part of Parcel 90 is freehold land called ‘Mateao’ owned by the applicant. The facts pleaded are not the same with those pleaded in the claim for adverse possession despite that it is the same land. Furthermore, the facts pleaded in the claim of adverse possession were not litigated and proven because there was no substantive hearing. The claim of adverse possession was struck out under the Limitation Amendment Act 2012 which makes adverse possession no longer applicable.
15. The cause(s) of action in the present Motion are not directed at the second and third respondents. The declaratory orders sought by the Applicant is directed at the Registrar of Land Registry under the authority of the Ministry of Natural Resources and Environment (MNRE). The second and third respondents who (as I understand) have asked to be joined in as parties because they are the registered co-owners of the land in Court Grant 631 and whose interests will be affected with the orders sought by the Applicant.
16. The grounds advanced by the second and third respondents in their application to strike out the current proceedings have not been made out.

Conclusion

17. For the foregoing reasons, the Motion to Strike-Out is dismissed.
18. Costs are reserved until after the hearing of the Motion for Declaratory Orders.
    

JUSTICE TUATAGALOA

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^[1] Galuvaa Poiva Fesili & Anor v Samoa Land Corporations & Ors, 15 November 2013 (Unreported)
^[2] See: Enosa v Samoa Observer Company Limited [2005] WSSC 6 (29 April 2005); AQM Ltd v Westfield Holdings Ltd [2009] WSSC 1 (7 January 2009); Woodroffe v Fischer & Attorney General Woodroffe v Fisher [2017] WSCA 9 (15 September 2017).