Ifi v Attorney General [2020] WSSC 23 (14 February 2020)

IN THE SUPREME COURT OF SAMOA
Ifi v Attorney General & Anor [2020] WSSC 23

Case name:	Ifi v Attorney General & Anor
Citation:	[2020] WSSC 23
Decision date:	14 February 2020
Parties:	SILAUMUA IFI (Plaintiff) and THE ATTORNEY GENERAL for and on behalf of the Registrar of Lands (First Defendant) and LAND AND TITLES COURT (Second Defendant)
Hearing date(s):	16 December 2019
File number(s):	CP44/19
Jurisdiction:	CIVIL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Mata Keli Tuatagaloa
On appeal from:
Order:	The Court finds as follows: (i) There is no ‘error’ to the Land Register registering the land (Lots 71 & 72) as customary; (ii) There is ‘doubt’ as to status of the land (Lots 71 & 72) and as such falls within the jurisdiction of the Land Commission pursuant to the Land Titles Investigation Act 1966; and (iii) The applicant, Silaumua Ifi lacks legal authority to bring the current proceedings. The Applicant’s Motion for Orders, Statement of Claim and Affidavits are struck out. The respondents seek indemnity costs, written submissions to be filed no later than fourteen (14) days from the date of the decision.
Representation:	O Woodroffe for Plaintiff DJ Fong for First and Second Defendants
Catchwords:	freehold land vs. customary land – land dispute – land ownership – German Administration – Land Commission – strike-out application – Grundbuch (German Land Register).
Words and phrases:	dispute: error to land register – doubt as to the status of land.
Legislation cited:	Land Titles Investigation Act 1966 ss. 10(b); 15; 16; Land Titles Registration Act 2008 ss. 5; 87; Supreme Court (Civil) Procedure Rules 1980 s. 194; The Administration Act 1975, s. 13.
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); Garrow and Alston: Law of Wills and Administration; Mama v Faamasunu [1997] WSSC 24 (17 Oct 1997); Woodroffe v Fisher & Attorney General Woodroffe v Fisher [2017] WSCA 9 (15 September 2017).
Summary of decision:

CP 44/19

THE SUPREME COURT OF SAMOA

HELD AT MULINUU

IN THE MATTER of the LAND TITLES REGISTRATION ACT 2008

BETWEEN:

SILAUMUA IFI, of 5 Dover Street, Island Bay, Wellington, New Zealand, Pensioner.

Plaintiff

AND:

THE ATTORNEY GENERAL for and on behalf of the Registrar of Lands

First Defendant

AND:

LAND AND TITLES COURT

Second Defendant

Counsels: O Woodroffe for Plaintiff
DJ Fong for First and Second Defendants

Hearing: 16 December 2019

Judgment: 14 February 2020

JUDGEMENT OF JUSTICE TUATAGALOA
(APPLICATION TO STRIKE–OUT)

1. This judgment concerns the Motion to Strike-out by the First and Second Defendants the Plaintiff’s Statement of Claim, Ex-Parte Motion and Affidavits in Support.

Background

2. The Plaintiff claims Lots 71 and 72 on Flur VII as freehold land.
3. The Plaintiff, Silaumua Ifi, is claiming ownership of Lots 71 and 72 on Flur VII as freehold land through her great grandfather Atoa So’onanofo. Her claim goes back to the time of the German Administration in the 1800s. She claims that according to German land records (Grundbuch) her great-grandfather was the registered owner of Lots 70, 71 & 72 in fee simple.
4. In 1889 her great-grandfather transferred Lot 70 to a Charles William Blacklock; and the remaining Lots 71 & 72 registered under her great-grandfather.
5. Lot 72 was later subdivided to Lots 119/72 and 120/72.
6. The Plaintiff on 30 April filed both a Statement of Claim and the Motion for Orders Ex-Parte together with supporting affidavits.

The Statement of Claim (dated 24 April 2019)

7. The plaintiff seeks from the Court the following:
   • (a) A Declaratory Order declaring that Lot 71, Lot 119/72 and Lot 120/72 on Flur VII are freehold land and not customary land; and such land has been freehold land since the registration of Mr. Atoa So’onanofo as the registered proprietor of the said land by the German Administration.
   • (b) An Order pursuant to section 87 of the Land Titles Registration Act 2008 directing the Registrar to correct the Land Register by the issue of Certificates of Titles to Lot 71, Lot 119/72 and Lot 120/72 on Flur VII in the name of Mr. Atoa So’onanofo.
   • (c) A Declaratory Order declaring that any Land and Titles Court decisions that affect Lot 71, Lot 119/72 or Lot 120/72 on Flur VII are vacated due to lack of jurisdiction.
   • (d) A Declaratory Order declaring that the Land and Titles Court does not have jurisdiction to hear any case that affects Lot 71, Lot 119/72 or Lot 120/72 on Flur VII due to the said land being freehold land.
   • (e) A Writ of Prohibition pursuant to Section 194 of the Supreme Court (Civil) Procedure Rules 1980 prohibiting the Land and Titles Court from exercising any jurisdiction over the land described as Lot 71, Lot 72 or Lot 119/72 or Lot 120/72 on Flur VII due to lack of jurisdiction as the said land is freehold land, not customary land.
   • (f) Alternatively, the Plaintiff seeks compensation for the loss of Lots 71 & 72 on Flur VII.

The Motion for Orders Ex- Parte (dated 24 April 2019)

8. The Plaintiff seeks the following orders which were not granted by way of ex-parte and is part of the present proceedings:
   • (i) Prohibiting any person or persons from dealing with Lots 71 and 72, 119/72 and 120/72 on Flur VII.
   • (ii) Prohibiting the Land and Titles Court (including Appellate) from hearing any cases dealing with the said land until further orders from Court.
   • (iii) Prohibiting the Land and Titles Court (including Appellate) from issuing any orders, directions of judgment regarding the land until further orders from Court.
   • (iv) Directing that the costs of the applicant of an incidental to this application and the order hereon be fixed and be costs in the cause (or be fixed and be costs of the applicant in any event) or be reserved and for such further or other order as in the circumstances may appear just.

The Grounds of the Strike-out

9. The First and Second Defendants seek to strike-out the Applicant’s Motion, Statement of Claim and Affidavits upon the following grounds:
   • (a) The Plaintiff/Applicant erroneously seeks declaratory orders from the Supreme Court for matters which fall under the initial jurisdiction of the Land Titles Investigation Commission (“the Land Commission”).
     • (i) The Plaintiff seeks to declare as freehold in fee simple land which is currently recorded as customary land in Flur VII as Lots 71 and 72 (“disputed land”)
     • (ii) The jurisdiction to make determination on the status of land falls under the Land Commission as provided under the Land Titles Investigation Act 1966 (“LTI Act”).
     • (iii) One of the functions of the Land Commission as stated under section 10(b) of the LTI Act reads as follows:
   • “...to inquire into each claim made to the Commission by any person to individual ownership of or property in any land in Samoa other than land undoubtedly held by any person as individual property for an estate in fee simple created by a Crown Grant or a Court Grant...”
     • (iv) Section 15 of the LTI Act in relation to notice of claims further reads as follows:
   • “A person desiring to make a claim to the Commission to individual ownership of or property in any land in Samoa other than land undoubtedly held by him or her as individual property for an estate in fee simple created or confirmed by a Court Grant or a Crown Grant, may give notice in writing of his or her claim to the Secretary.”

(b) The Land Commission has made no determination in respect of the disputed land.

• (i) The process for registration of land ownership under the German Administration is summarized as follows:
  • (a) A claimant would file a claim with the Land Commission for investigation and to determine recognition and registration of absolute ownership or otherwise of land.
  • (b) If a claim is proven, the Land Commission would issue a decision in that respect and a Court Grant (now referred to as Court Order) would be issued by the Supreme Court confirming the same.
• (ii) In the present matter, the applicant in her pleadings makes reference to a Court Grant issued in respect of Lot 70 on Flur VII following a determination by the Land Commission dated 21 October 1891 concerning Claim No. 174. Lot 70 however is not the disputed land which is the subject of these proceedings. The disputed land relates to Lots 71 and 72.
• (iii) Records with the Registrar indicate that no claim has been received in respect of the disputed land, and as such, no Court Grant has been issued in respect of the same. There are also no records to confirm conveyance or any previous transactions pertaining to the disputed land during the German administration.
• (iv) In light of the above, the correct avenue for addressing the applicant’s concerns is to file a claim with the Land Commission for the Commission to investigate and determine the status of the land in dispute.

(c) All other issues raised by the Applicant pertain to the status of the disputed land which are also subject to investigation and determination by the Land Commission.
(d) By reasons provided in paragraphs (a), (b) and (c) above, the Applicant’s Motion, Statement of Claim and Affidavits disclose no reasonable or maintainable grounds of proceedings against the Respondents prior to determination by the Land Commission and are therefore frivolous, vexatious and is an abuse of court process and has no prospect of success.
(e) The Applicant’s Motion, Statement of Claim and Affidavit are therefore without merit and are unmaintainable at law and therefore unreasonable; as such the Respondents are entitled to indemnity costs.

Applicant’s Response to Motion to Strike-Out

10. Counsel for the Applicant in both written and oral submissions advanced the following argument:
    • (i) The Land Titles Registration Act 1966 does not apply to refer the claim to the Land Commission. That there is no ‘doubt’ as to the status of the disputed land, that is, the land as they claim is freehold land;
    • (ii) According to the records in their possession from the time of the German Administration Lots 71 & 72 are registered under the name ‘Atoa’ which has been verified and confirmed by the German Embassy in Wellington to be the registered owner of the said land;
    • (iii) There is no evidence that ‘Atoa’ held Lots 71 & 72 under a Native title but there is evidence of “ownership” under Grundbuch.

Applicable principles

11. The court’s jurisdiction regarding strike-out application is well settled both in Samoa and foreign origin^[1] 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.
12. The applications to strike-out are made pursuant to Rule 70 Supreme Court (Civil Procedure) Rules and the inherent jurisdiction of the court.
13. The application to strike-out made pursuant to Rule 70 will fail if a cause of action is disclosed.
14. Whereas, 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.

The issue(s)

15. There are three issues, two of which have been addressed by Counsels in their submissions whilst the third issue to which I think is most important was not addressed by either Counsel. The issues are:
    • (a) Is there an ‘error’ to the Land Register? If there is, the Registrar of the Land Register with the Ministry of Natural Resources & Environment has the power under the Land Titles Registration Act 2008 (section 5) to correct such errors on the Land Register;
    • (b) Is there ‘doubt’ as to the status of the land (Lots 71 & 72)? If there is, then it falls to the jurisdiction of the Land Commission pursuant to the Land Titles Investigation Act 1966 (sections 15 & 16) to investigate and determine the true status of the land; and
    • (c) Does the applicant, Silaumua Ifi have legal standing to bring the current proceedings?
16. The orders sought depends on the status of the land.
17. The application to strike-out is to the forum or jurisdiction to hear and determine the proceedings. This depends on the status of the land.
18. The lands during the German Administration were classified as Native land, European land and Crown land. These lands were defined in the Samoa Act 1921 except that “Native land” became classified as Samoan land. These lands were later classified as customary land, freehold land and public land.^[2]
19. Both the applicant and the respondents submit that the registration process of land ownership under the German Administration (late 1800s to early 1900s) is as follows:
    • (a) A claimant would file a land claim with the Land Commission for recognition of absolute ownership of land;
    • (b) The Land Commission would carry out an investigation and make a determination of the claim;
    • (c) If the claim is accepted, a Court Grant would be issued to confirm absolute ownership of the land.
    • (d) Absolute title is registered in the Grundbuch (German Land Register).
20. It has been settled that the Supreme Court has inherent jurisdiction to determine the status of land^[3]. Once the status of the land is determined the Court will then be able to make a decision as to the forum that would best deal with the land according to law. If customary it will be the jurisdiction of Land and Titles Court, or if freehold it will be the jurisdiction of the Supreme Court; but where there is ‘doubt’ as to the status of the land the matter will be referred to the Land Commission.^[4]
    1. Is there an ‘error’ to the Land Register in relation to the land?
21. The applicant says that there is no ‘doubt’ but an ‘error’ to the Land Register registering the land as customary land. The applicant claims that according to the records in their possession and confirmation from the German Embassy, the name “Atoa” is recorded as registered owner of the land as freehold.
22. The respondents say otherwise. The respondents say that there is no ‘error’ to the Land Register registering the land as ‘customary’. The Registrar of Lands under the Ministry of Natural Resources and Environment (“MNRE”) in her affidavit^[5] (in support of the application to strike out) and the land search^[6] carried out by the MNRE of their land records, the land has always been registered as customary land.
23. As I understand, before the applicant filed the claim or motion with the Court, the applicant wrote and provided everything (as in the current proceeding) to the Registrar of the Land Registry with MNRE asking the Registrar to invoke her power under section 5 of the Land Titles Registration Act 2008 to correct the Land Register and have the lands (Lots 71 & 72) registered as freehold land.^[7] The Registrar refused saying that the information provided was not sufficient to correct any error and/or omissions on the Register as claimed by the applicant. In the opinion of the Registrar there is no error and/or omissions on the Land Register concerning the said land.
24. There are also the following facts pleaded that strongly persuades that the land is customary:
    • (a) The name “Atoa” is a matai title of the village of Tanugamanono, the village where the disputed land is located;
    • (b) Tanugamanono is a ‘nuu mavae’ (traditional village) and not a village created by a new settlement of people.
    • (c) The applicant, for further evidence that her great grandfather is owner of the land was that her great-grandfather Atoa sold Lot 70 to a William Blacklock by Deed dated 5^th June 1889. However, these three things say otherwise - Firstly, the said Deed only has the name “Atoa” not “Atoa So’onanofo” the great-grandfather of the applicant; Secondly, Atoa is not the only transferor of Lot 70, there were two of them, the other name is “Semu”; thirdly, the deed was witnessed by three people, two of them are Samoan matai – Seumanutafa and Tuiletufuga.^[8]
    • (d) According to the records or the Land Register, William Blacklock on 21 October 1891 applied to the Land Commission (Land Claim No.174 - Lot 70) for the land to be freehold by which Court Grant 102 granted the land to William Blacklock in fee simple and registered in Grundbuch 378 on 6^th October 1921. If the land was owned as ‘freehold’ by Atoa, why was there a need for William Blacklock to go through all that to have the land registered to his name as freehold?
    • (e) Lots 71 & 72 remain registered as customary land according to the land records with the MNRE.
    • (f) Furthermore, the applicant says that her great-grandfather and her family have lived on this land since the 1800s; why then did her grandmother and those before her (the applicant) pursue this matter that the land is freehold not customary? As I understand, the land has been the subject of matters before the Lands and Titles Court for many years and never once until now, did the applicant claim the land to be freehold, not customary.
25. It has been the practice with applications to strike -out for the Court to take into account the contents of all relevant documents in the proceedings and not just the pleadings.^[9] If there is no error to the Land Register and that the land is correctly registered as ‘customary’ then the application to strike out succeeds.

b. Is there ‘doubt’ as to the status of Lots 71 & 72?

26. Any ‘doubt’ as to the status of the land has to be real and genuine.^[10]
27. Both the applicant and the respondents have filed affidavits in support and documents supporting their arguments which arguments do place the status of the land in ‘doubt’.
28. The Registrar despite the information provided in her affidavit which led to her refusal to make any corrections to the Land Register, maintaining that there is no ‘error’ in relation to the land is however of the view that the applicant is challenging the status of the land being ‘customary’ by saying that it should be ‘freehold’.
29. I agree with the Registrar as this places the status of the land in doubt; which ‘doubt’ (I find) is real and genuine. As such, the land falls under the Land Commission pursuant to the Land Titles Investigation Act 1966^[11] for the Land Commission to investigate the applicants claim and to determine the true status of the land (Lots 71 & 72).
30. The application to strike out succeeds as correctly pleaded by the respondents “... the Applicant’s Motion, Statement of Claim and Affidavits disclose no reasonable or maintainable grounds of proceedings against the respondents prior to determination by the Land Commission and are therefore frivolous, vexatious and is an abuse of court process and has no prospect of success.”

c. Does the Applicant, Silaumua Ifi have legal standing to bring the current proceedings?

31. The plaintiff/applicant is claiming Lots 71 & 72 as freehold land through her great-grandfather Atoa So’onanofo. She claims that her grandmother, Naitua is the daughter of Atoa So’onanofo; that her mother, Faavevela is the daughter of Naitua.^[12]
32. The applicant was appointed administrator of her mother’s estate on 3^rd May 2017.^[13] The applicant is claiming through her great-grandfather which land would be or form part of his estate. The authorities and the law is that only an appointed administrator has the legal authority to bring an action or claim on behalf of an estate.^[14]
    • “In all actions concerning the real estate of a deceased person, his executor or administrator represents the real estate and the persons interested in it, in the same manner and to the same extent as he represents the personal estate.”^[15]
33. The applicant from her affidavit had turned her mind to this issue because she filed for Letters of Administration of her great-grandfather’s estate on 5^th September 2019.^[16] The applicant has not been granted with administration of her great-grandfather’s estate. The applicant, Silaumua Ifi therefore has no legal standing to bring the current proceedings. Even if there are tenable cause (s) of action, they cannot materialize if one does not have legal authority to bring it.
34. The current proceedings are struck out for the applicant’s lack of legal standing.

Conclusion

35. The Court finds as follows:
    • (iv) There is no ‘error’ to the Land Register registering the land (Lots 71 & 72) as customary;
    • (v) There is ‘doubt’ as to status of the land (Lots 71 & 72) and as such falls within the jurisdiction of the Land Commission pursuant to the Land Titles Investigation Act 1966; and
    • (vi) The applicant, Silaumua Ifi lacks legal authority to bring the current proceedings;
36. The Applicant’s Motion for Orders, Statement of Claim and Affidavits are struck out.
37. The respondents seek indemnity costs, written submissions to be filed no later than fourteen (14) days from the date of the decision.
    

JUSTICE TUATAGALOA

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^[1] 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 Fisher & Attorney General Woodroffe v Fisher [2017] WSCA 9 (15 September 2017).
^[2] Constitution, Article 101, see also Samoa Constitution Order 1920
^[3] Mama v Faamasunu [1997] WSSC 24 (17 Oct 1997)
^[4] Land Titles Registration Act 1966, section 15
^[5] Affidavit of Filisita Heather dated 12 December 2019
^[6] Ibid, Annexure “D”
^[7] Affidavit of Silaumua Ifi, dated 28th March 2019
^[8] Statement of Claim, Annexure “A”
^[9] Supra, note [1]
^[10] Mama v Faamasunu [1997] WSSC 24 (17 Oct 1997)
^[11] Land Titles Investigations Act 1966, sections 15 & 16.
^[12] Affidavit of Silaumua Ifi, dated 28th March 2019 at paragraph 2
^[13] Probate No: Misc 388/04; 68/15
^[14] The Administration Act 1975, section 13
^[15] Garrow and Alston: Law of Wills and Administration
^[16] Supra, note [8] at paragraph 15.