Cleverly v Land and Titles Court [2020] WSSC 49 (28 August 2020)

SUPREME COURT OF SAMOA
Cleverly v Land and Titles Court [2020] WSSC 49

Case name:	Cleverly v Land and Titles Court
Citation:	[2020] WSSC 49
Decision date:	28 August 2020
Parties:	LUATUPU IOANE CLEVERLY of New Zealand and Wellington, New Zealand Medical Doctor, MALAULAU POPO AIULU of Saoluafata, Matai, LEUMU ELISARA, of Saluafata, Matai, MAO PETER RASCHE of Saoluafata, Matai, TALATAINA VINI & ORS and LAND and TITLES COURT continued under section 25 of the Land and Titles Act 1981 and MULITALO LISONA LAVEA, FOFOGAMUA SEIULI HAWAII LAVEAL, PAPALII SAMUELU TE’O, LEULUAIALII ROSEMARY LAVEA VAAULU and GALEA’I PA’U TAFAOGALUPE MULITALO, TAGALOAMATUA TE’O, LUAMANUVAO FATA BROWN and TAGALOAMATUA FALEONO VAOMU, TAGIILEVAO TAGALOA VAOMU, LIMUOLEVAVE ISAIA TAGALOAMATUA ATUA’I, FOLASATELE TOLU IAKOPO, AITA LAGAFUAINA ULUVAOMALO ULU KINI and TAGITAGIAPAU FONOTI TAI, FALE SEUEA, TAELEGA FAAGULU and LEALALI POGA MULITALO, FUIMAONO NAOIA OLI, AUVAA LESA SEUMANUTAFA, TAMAMANAIA SEUMANUTAFA, SOLOA SEUMANUTAFA IN THE MATTER OF LC11951/P1 – P12 DATED 10 FEBRUARY 2018 LUATUPU IOANE – CLEVERLY of Saoluafata and Wellington, New Zealand Medical Doctor, MALAULAU POPO AIULU of Saoluafata, Matai, LEUMU ELISARA of Saoluafata, Matai, MAO PETER RASCH of Saoluafata, Matai, LOAU AUKUSITINO, AIGAMAUA FELETI and PRESIDENT OF THE LAND AND TITLES COURT constituted under section 77 of the Land and Titles Act 1981 and MULITALO LISONA LAVEA, GALEA’I FUIMAONO SAMUELU, MULITALO VAAULU, PA’U TAFAOGALUPE, LEULUAIALII SELESITINA, FIASEU TAALA, FEETAU AITA and TAGITAGIAPUA FONOTI TAI, TAELEGA MANE FAAGALU and LEALALI MAPUONA, FUIMAONO FOUTANU MA SUASOLOMAI FOU MULITALO

Judgment date(s):	28 August 2020
File number(s):
Jurisdiction:	Civil
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	JUSTICE LEIATAUALESA DARYL MICHAEL CLARKE
On appeal from:
Order:	- For the reasons that I have set out, the application to strike out the Plaintiffs Amended Statement of Claim and Amended Motion for Judicial Review is dismissed. - Leave is granted for the Plaintiffs to file a Second Amended Statement of Claim and Second Amended Motion for Judicial Review: - better particularizing the pleadings as to the allegation that the Plaintiffs did not have access to the ‘questioned documents’ for the LTC hearing and if applicable, the LTCA hearing; - particularizing the basis that Luatupu Ioane-Cleverley, Leuma Elisara and Mao Peter Rasche have standing to bring these proceedings as Plaintiffs; and - to amend the pleadings as may be deemed necessary to take into account what I have said at paragraph 49 above. - These are to be filed and served no later than 3.00pm Monday 14 September 2020. - Costs reserved.

Representation:

S Ponifasio for the Plaintiffs / Applicants S Ainuu for First and Defendant / Respondent B Heather-Latu for the Second and Fourth Defendants / Respondents Third Defendants / Respondent In-Person No appearance for the Fifth Defendants / Respondents M Betham-Annandale for Sixth Defendants / Respondents

Catchwords:
Words and phrases:	Application to strike out the Plaintiffs Amended Statement of Claim and Amended Motion for Judicial Review;
Legislation cited:	Land and Titles Act 1981, Land and Titles Act 1971; Constitution Part II.
Cases cited:	Woodroffe v Mataia [2017] WSCA 5 (31 March 2017); Enosa v Samoa Observer [2005] WSSC 6; Kneubhl v Liugalua [2000] WSSC 27, Attorney General & Anor v Malifa [2018] WSCA 1; Tanielu v Attorney General [2017] WSCA 3; Malifa v President of the Land and Titles Court [2014] WSCA 11; Penaia v Land and Titles Court [2012] WSCA 6); (Jackson v Attorney General [2009] WSSC 73 (26 June 2009)); Samoa Party v Attorney General [2009] WSSC 23, Esekia v Land and Titles Court [2017] WSSC 145, Ulisese and others v The Land and Titles Court and others (unreported) 04 November 1998). Golder v United Kingdom (1975) 1 EHRR 524, Kerojavi v Finland (19 July 1995); Ankerl v Switzerland (23 /10/1996); Lavea v Kerslake [2015] WSCA 3 (17 April 2015);

Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

LC19951/P1 – P12 DATED 29 MAY 2015

BETWEEN

LUATUPU IOANE CLEVERLY of New Zealand and Wellington, New Zealand Medical Doctor, MALAULAU POPO AIULU of Saoluafata, Matai, LEUMU ELISARA, of Saluafata, Matai, MAO PETER RASCHE of Saoluafata, Matai, TALATAINA VINI & ORS.
Plaintiffs / Applicants

A N D

LAND AND TITLES COURT continued under section 25 of the Land and Titles Act 1981
First Defendant / Respondent

A N D

MULITALO LISONA LAVEA, FOFOGAMUA SEIULI HAWAII LAVEAL, PAPALII SAMUELU TE’O, LEULUAIALII ROSEMARY LAVEA VAAULU
Second Defendants / Respondents

A N D

GALEA’I PA’U TAFAOGALUPE MULITALO, TAGALOAMATUA TE’O, LUAMANUVAO FATA BROWN
Third Defendants / Respondents

A N D

TAGALOAMATUA FALEONO VAOMU, TAGIILEVAO TAGALOA VAOMU, LIMUOLEVAVE ISAIA TAGALOAMATUA ATUA’I, FOLASATELE TOLU IAKOPO, AITA LAGAFUAINA ULUVAOMALO ULU KINI
Fourth Defendants / Respondents

A N D

TAGITAGIAPAU FONOTI TAI, FALE SEUEA, TAELEGA FAAGULU
Fifth Defendants / Respondents

A N D

LEALALI POGA MULITALO, FUIMAONO NAOIA OLI, AUVAA LESA SEUMANUTAFA, TAMAMANAIA SEUMANUTAFA, SOLOA SEUMANUTAFA
Sixth Defendants / Respondents

IN THE MATTER OF
LC11951/P1 – P12 DATED 10 FEBRUARY 2018

BETWEEN

LUATUPU IOANE – CLEVERLY of Saoluafata and Wellington, New Zealand Medical Doctor, MALAULAU POPO AIULU of Saoluafata, Matai, LEUMU ELISARA of Saoluafata Matai, MAO PETER RASCH of Saoluafata Matai, LOAU AUKUSITINO, AIGAMAUA FELETI
First Plaintiffs

AND

PRESIDENT OF THE LAND AND TITLES COURT constituted under section 77 of the Land and Titles Act 1981
First Respondent

AND

MULITALO LISONA LAVEA, GALEA’I FUIMAONO SAMUELU, MULITALO VAAULU, PA’U TAFAOGALUPE, LEULUAIALII SELESITINA, FIASEU TAALA, FEETAU AITA
Second Respondents

AND

TAGITAGIAPUA FONOTI TAI, TAELEGA MANE FAAGALU
Third Respondents

AND

LEALALI MAPUONA, FUIMAONO FOUTANU MA SUASOLOMAI FOU MULITALO
Fifth Respondents

Counsel:
S Ponifasio for the Plaintiffs / Applicants
S Ainuu for First and Defendant / Respondent
B Heather-Latu for the Second and Fourth Defendants / Respondents
Third Defendants / Respondent In-Person
No appearance for the Fifth Defendants / Respondents
M Betham-Annandale for Sixth Defendants / Respondents

Hearing Date : 13 November 2019
Judgment: 28 August 2020

JUDGMENT (MOTION TO STRIKE OUT)

A. INTRODUCTION:

1. I wish to extend my apologies to the parties and counsel for the delay in delivering this judgment. This has regrettably been caused by the workload of the Court in the past 9 months and the various disruptions to the work of the Court over that period.
2. In these proceedings, the citation of the many parties by the Plaintiffs has caused unnecessary confusion for the Court as well as for counsel and the Defendants. In the “Amended Statement of Claim”, the parties have been cited based on the two separate proceedings in the Land and Titles jurisdiction (LTC 11951/P1 – P12 29 May 2015 and LC11951/P1 – P12 10 February 2017) as I have done in this judgment in the intitulement. The two sets of parties are not identical. Citing the parties in this way is inappropriate, confusing and unhelpful.
3. The appropriate citation of parties for Court proceedings is a single reference in the intitulement to the party whether as Plaintiff or Defendant. The pleadings then articulate and particularize the Plaintiffs claim as against each of the Defendants in the Land and Titles Court (‘LTC’) and the Land and Titles Court of Appeal (LTCA).
4. As raised by counsel for the Second and Fourth Defendants, a number of the persons cited as Plaintiffs in these proceedings were not a named party to the proceedings in the proceedings in the LTC and LTCA. This is shown in the following table:

Plaintiff in Supreme Court	Party in LTC LC11951 P1 – P12	LTCA Leave to Appeal Petition LC11951 P1 – P12
Luatupu Ioane-Cleverley	No	No
Malaulau Popo Aiulu	Yes. 4th Respondent.	Yes. 3rd Applicant.
Leumu Elisara	No	Yes.
Mao Peter Rasche	No	No.
Taamai Kapisi	Yes 4th Respondent.	No.
Asomua LMS	Yes 4th Respondents	No.
Loau Aukustino	No	Yes.
Aigamaua Feleti	No	Yes.

5. As the table shows, Luatupu Ioane-Cleverley, Leumu Elisara and Mao Peter Rasche were not named parties in the 2015 LTC hearing to which the principal claim for a breach of their right to a fair hearing is alleged. Whilst I accept that they may have an interest in those proceedings as heirs to the title Tagaloamatua or as matai of Saoluafata, they were not a party in the LTC hearing. In circumstances where they were not a party in the hearing where the ‘questioned documents’ were allegedly referred to and relied on, it is not clear on the pleadings how these named Plaintiffs then claim standing to bring these proceedings. Leave will however be granted for these Plaintiffs to better particularize the basis upon which they claim to have standing to bring these proceedings. If they have no proper legal basis to claim standing, they may wish to formally seek to be struck out as Plaintiffs as the absence of standing properly pleaded may result in a further application to strike out.
6. Now, for the purposes of these proceedings and the citation of the parties and to avoid further confusion, I will refer to the parties as purportedly cited for the 2015 LTC proceeding unless otherwise expressly stated. I will also refer to the Plaintiffs / Applicants as the Plaintiffs and the Defendants / Respondents as the Defendants and to the documents referred to as ‘the questioned documents’ by the Plaintiff as the ‘questioned documents’. The reference in this judgment to the documents at paragraph 26 below as ‘questioned documents’ should in no way be construed as expressing any opinion as to the authenticity or not of those documents.

B. THE PROCEEDINGS:

7. The Plaintiffs by Amended Motion for Judicial Review and for Extraordinary Remedies and Amended Statement of Claim dated 10th December 2018 bring these proceedings against the Defendants seeking declarations that the ‘questioned documents’ purportedly relied on in LTC hearing ‘cannot be relied on as genuine’ and for orders quashing and/or setting aside the following decisions of the Land and Titles Court:
   • (a) LC 11951/P1 – P12 dated 29 May 2015 (“the 2015 LTC decision); and
   • (b) LC 11951 P1 – P12 dated 10th February 2017 (“the President’s decision”).
8. The grounds of the Plaintiffs application is principally that having relied on documents that purportedly ‘cannot be relied on as genuine’ for the purposes of those determinations, the Land and Titles Court was ‘misled’. It is further alleged that the ‘questioned documents’ had only been cited “by the parties represented by Mulitalo Lisona, Manoo Mulitalo Lutena and Galea’i Pa’u Tafaogalupe Mulitalo” and only discovered by the Plaintiffs after the LTC and LTCA hearings.
9. The First and Second Defendants (as identified from LTC proceedings 2015) have applied to have the Applicants’ proceedings struck out and the Sixth Defendant has filed a Statement of Defence. I note that the written submissions for the Second and Fourth Defendants refers to the strike out motion by both Defendants. However, the Amended Motion to Strike Out is filed on behalf of the Second Defendant only. This may be due to the intitulement adopted by the Plaintiffs and the reference by the Second and Fourth Defendants may refer to the President’s decision intitulement. Given the outcome of the application to strike out, the discrepancy is not material to the conclusion that I have reached. The Third Defendants filed a strike out motion for the original Statement of Claim but not the Amended Statement of Claim. There is therefore no motion to strike out the Amended Statement of Claim by the Third Defendant. There is no appearance by the Fifth Defendant.

C. THE LAW – STRIKE OUT:

10. 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. The first is rule 70 of the Rules which 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."

11. In Woodroffe v Mataia [2017] WSCA 5 (31 March 2017), the Court of Appeal stated in terms of rule 70:

“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.”

12. 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".

13. In Woodroffe v Mataia (supra), the Court of Appeal also stated:

“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.

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

14. 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]."

D. THE LAW: JUDICIAL REVIEW OF LTC AND LTCA IN THE SUPREME COURT & RIGHT TO FAIR TRIAL:

15. It is settled law that the jurisdiction of the Supreme Court to review decisions of the LTC and the LTCA is limited. This Court does not have the jurisdiction to review a decision of these Courts on any basis except other than for a breach of the Constitution (see: Attorney General & Anor v Malifa [2018] WSCA 1; Tanielu v Attorney General [2017] WSCA 3; Malifa v President of the Land and Titles Court [2014] WSCA 11; Penaia v Land and Titles Court [2012] WSCA 6).
16. Amongst other allegations, the Plaintiffs allege that the First Defendant having relied on the ‘questioned documents’ and those documents having not been discovered by the Plaintiffs prior to the LTC and LTCA hearings and cited only “by the parties represented by Mulitalo Lisona, Manoo Mulitalo Lutena and Galea’i Pa’u Tafaogalupe Mulitalo.” breached the Plaintiffs’ right to a fair trial protected by article 9 of the Constitution. Article 9 relevantly provides:

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

17. As this is a strike out application, the facts on which this Court proceeds are those alleged in the Plaintiff’s pleadings, which must for present purposes be taken as capable of proof (Jackson v Attorney General [2009] WSSC 73 (26 June 2009)). On this basis, the Court is to determine whether on the Plaintiffs’ case as pleaded, is it perfectly clear that the plea cannot succeed, is hopeless or without foundation or it cannot be reasonably argued.
18. In terms of the right to a fair trial, article 9(1) of the Constitution is identical to article 6(1) of the European Convention on Human Rights. In Samoa Party v Attorney General [2009] WSSC 23, former Chief Justice Sapolu stated:

“53. The right embodied in Article 9(1) is the "right to a Court". The "right of access to a Court", though not expressed in Article 9(1), is by implication a fundamental aspect of the right stated in Article 9(1) which is the right to a fair trial.

54. In Golder v United Kingdom (1975) 1 EHRR 524, E ct HR, the European Court of Human Rights when dealing with Article 6(1) of the European Convention on Human Rights (the Convention) which is identical in terms to Article 9(1) of our Constitution said:

"The Court thus reaches the conclusion...that Article 6 para 1 (art 6-1) secures to everyone the right to have any claim relating to his civil rights and obligations brought before a Court or tribunal. In this way the Article embodies the ‘right to a Court’, of which the right of access, that is the right to institute proceedings before Courts in civil matters, constitutes one aspect only. To this are added the guarantees laid down by Article 6 para 1 (art 6-1) as regards both the organisation and composition of the Court, and the conduct of the proceedings. In sum, the whole makes up the right to a fair hearing". (emphasis added)

19. In Esekia v Land and Titles Court [2017] WSSC 145, His Honour Nelson J at [17] stated:

“The right to a hearing by “an independent and impartial tribunal” is in my view separate and divisible from the all-encompassing right to a “fair hearing”. I approach the matter on this basis.”

20. The rights protected by article 9(1) of the Constitution are therefore not restricted to the right of “access” to a Court or the right to a Court but encompasses in civil cases the separate and divisible right to a ‘fair hearing’ (Ulisese and others v The Land and Titles Court and others (unreported) 04 November 1998). In this context, in Golder v United Kingdom (1975) 1 EHRR 524, the European Court of Human Rights (“ECHR”) spoke not only of a right of access to a Court and right to institute proceedings in civil matters but that these include rights as to the organisation and composition of the Court as well as to the conduct of the proceedings.
21. In discussing what constitutes a fair hearing, His Honour Nelson J also referred to the judgment of Young J in Ulisese and others v The Land and Titles Court (supra) where it was stated:

“At least it is likely to encompass the typical judicial review grounds of want of jurisdiction, natural justice, bias, and no doubt others. Here all parties are agreed that the three grounds previously mentioned are clearly within “fair” hearing in civil cases.”

22. In Kerojavi v Finland (19 July 1995) (Application no. 17506/90), the ECHR interpreted the right to a fair trial to include an obligation on a Court to make available to a party to proceedings relevant documents held by the Court. The rationale applied by the ECHR in that instance was that the failure by the Court to make relevant documents available to a party would not allow proper participation by that party to the proceedings and for the party to properly challenge the decision under review (at para. 42).
23. In the Ankerl v Switzerland (23 /10/1996) (Application no. 1778/91), the ECHR also considered the scope of the civil right to a fair trial and said that this is to be assessed based on the proceedings as a whole:

“38. The Court’s task is to ascertain whether the proceedings in their entirety were "fair" within the meaning of Article 6 para. 1 (art. 6-1). It reiterates in this connection that the requirement of "equality of arms", in the sense of a "fair balance" between the parties, applies also to litigation in which private interests are opposed; in such instances "equality of arms" implies that each party must be afforded a reasonable opportunity to present his case - including his evidence - under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent (see the Dombo Beheer B.V. judgment previously cited, p. 19, paras. 32-33). A difference of treatment in respect of the hearing of the parties’ witnesses may therefore be such as to infringe the principle in question.”

24. Whilst for the purposes of these proceedings, I do not adopt the interpretation of article article 9(1) of the Constitution as applied by the ECHR in terms of article 6 of the European Convention in Kerojavi v Finland (supra), I refer to it as possibly relevant in ultimately determining in these proceedings the scope of the right to a fair hearing protected by article 9(1) in Samoa. This question is one that the Court may need to determine if this matter proceeds to a substantive hearing after the benefit of submissions from counsel.

E. BACKGROUND:

25. There has been a recent history of litigation in the Civil Courts and the Land and Titles Court pre-dating the 2015 LTC Decision and the February 2017 President’s Decision. These earlier proceedings are noted in the Court of Appeal judgment in Lavea v Kerslake [2015] WSCA 3 (17 April 2015) and in the affidavits of Luatupu Ioane-Cleverley dated 28 March 2018 and Tuiloma Lopez Williams dated 11th November 2019.
26. These proceedings stem from the LTC concerning the authority over the matai title Tagaloamatua and the true heirs to that matai title. In the 2015 LTC proceedings, it is pleaded that the Second Defendants led by Mulitalo Lisona Lavea and his son Fofogamua Seiuli Lavea referred to and relied on various documents to support their claim to authority over that title as well as their claim to being descendants of that title. Those documents set out at paragraph 8 of the Plaintiff’s Amended Statement of Claim (“the questioned documents”) are:
    • (a) LC615 – Komisi Su’e Fanua ma Suafa dated 26 July 1921 (“ 1921 LC 615”);
    • (b) Mavaega – Komisi Su’e Fanua ma Suafa dated 31 May 1922 (“1922 Mavaega”);
    • (c) Response to Komisi Su’e Fanua ma Suafa dated 20 June 1922 (“1922 Response”);
    • (d) LC944/LC944 Part II ‘Komisi Su’e Fanua ma Suafa’ dated 22 September 1953 (“1953 LC944 Part II”);
    • (e) Mediation dated 16 November 1959 (“1959 Mediation”);
    • (f) Shares of Lease Money – ‘LC944-Part II’ stamped 13 October 1920 (“1920 Shares of Lease Money”); and
    • (g) Shares of Lease Money – ‘Komisi Su’e Fanua ma Suafa’ stamped 19 November 1956 (“1956 Shares of Lease Money”).
27. Copies of these documents are attached to the affidavit of the Plaintiff Luatupu Ioane-Cleverley dated 28 March 2018. In his affidavit at paragraph 47, Mr Tuiloma Lopez-Williams states that he has perused those documents, they have been stamped and sealed by the Registrars of the LTC and he confirms that the LTC have the original copies of these documents stored in the LTC records.
28. The Plaintiffs plead at paragraph 24 of the Amended Statement of Claim that the ‘questioned documents’ had only been cited “by the parties represented by Mulitalo Lisona, Manoo Mulitalo Lutena and Galea’i Pa’u Tafaogalupe Mulitalo.” In the Notice of Opposition to the First Defendant’s Strike Out Motion, the Plaintiffs further raise that the Plaintiffs are lay-men not legally trained and they only discovered the ‘questioned documents’ after the proceedings in the LTC.
29. The Plaintiffs allege that the Second and Third Defendants relied on the ‘questioned documents’ to support their claims to authority over the title Tagaloamatua and that the First Defendant questioned the parties on those documents (Amended Statement of Claim, para. 15). In the 2015 LTC determination, it is pleaded that the First Defendant re-affirmed the earlier decision LC 615 (Amended Statement of Claim, para. 17). The First Defendant referred to both LC 615 and the 1922 Mavaega in its decision.
30. It is pleaded that the 2015 LTC decision was appealed by the “Plaintiffs” and the Fifth Defendants. The President of the LTC however declined leave to appeal the 2015 LTC decision, this being the President’s decision made in 2017.
31. As a result of the various LTC proceedings to do with Saoluafata, the Plaintiffs plead that extensive research was carried out and significant anomalies were found with the questioned documents (see para. 23, Amended Statement of Claim). The Plaintiff Mao Peter Rasch is said to have examined the Land and Titles Court file on or about 13 March 2018 and also confirmed that the ‘questioned documents’ on the Court file are not original documents but photocopies.
32. In support of the Plaintiffs claim that the questioned documents are not genuine, an affidavit by Gordon Arthur Ian Sharfe of Wellington was prepared and filed dated 20th March 2018. Mr Sharfe is the Chief Document examiner with the New Zealand Police. He is an expert document examiner. The documents he examined were not original documents. He stated in his report dated 18 January 2018 at p.3:

“Some are copies of copies and the image quality of many is poor. These factors have limited some of the examinations possible and the level of opinion that can be reached.”

33. In Mr Sharfe’s report, he states that “[w]ith the exception of the first page of the A1 document (QA1a) and the E1 document, none of the questioned documents are consistent with their text having been produced by typewriting.” Mr Sharfe also raised concerns over signatures in some of the documents (see para. 4.4) stating that the signatures and the documents they are on, cannot be relied on as genuine. He also raised issues over stamp impressions.
34. As a result of the First Defendant relying on these questioned documents during the 2015 LTC hearing and in its 2015 decision, the First Defendant was misled and the Plaintiffs rights to a fair trial breached. When the Land and Titles Court President refused leave to appeal in 2017, the President of the Land and Titles Court failed to remedy the breach of Article 9 by the First Defendant and thereby also breached the Plaintiffs right to a fair trial.
35. The Plaintiff seeks declarations from this Court that the questioned documents cannot be relied on as genuine.

E. THE BASIS OF THE DEFENDANTS STRIKE OUT MOTION:

36. The First and Second Defendants have filed to strike out the Plaintiffs amended proceedings. The Third Defendant also made submissions in support of striking out the Plaintiffs’ proceedings but that application to strike out relate to the Plaintiffs original proceedings and not their amended proceedings.
37. The First Defendant applies to strike out the Plaintiffs’ proceedings on the basis that:
    • (a) The Supreme Court has no jurisdiction to judicially review a decision of the Land and Titles Court;
    • (b) While the Supreme Court can make orders against the First Defendant if there is a violation of a fundamental right protected by Part II of the Constitution, the Plaintiffs’ have failed to articulate with sufficient clarity that the decision by the First Defendant breached those rights; the claimed breach are not breaches protected by Part II; and the Plaintiffs were parties to the 2015 proceedings and were afforded a right to be heard both in 2015 and 2017;
      • (c) the questioned documents were not raised in the application for leave to appeal;
      • (d) the application is untenable and unlikely to succeed;
      • (e) the Plaintiff has failed to seek alternative remedies;
      • (f) Inordinate delay in bringing these judicial review proceedings; and
      • (g) The proceedings are frivolous, vexatious and an abused of process.
38. The Second Defendant applies to strike out the Plaintiff’s application on the basis of Part II of the Constitution and sections 34(12), 70 and 71 of the Land and Titles Act 1981.
39. The Second Defendants allege amongst other grounds, that the proceedings brought by the Plaintiffs are:
    • (a) An abuse of process on the basis that the ‘causes of action’ are solely within the jurisdiction of the First Defendant;
    • (b) The claim is wholly based on allegations in respect of the authenticity of documents which the Second Defendants has no ability to confirm;
    • (c) The claim does not relate to the conduct and procedures of the First Defendant or the decisions under review but a challenge to the legitimacy of the First Defendant and its proceedings and administrative arrangements, which do not come within Part II of the Constitution;
    • (d) The proceedings effectively seek to review decisions by the First Defendant and its predecessors over almost 100 years and which is not possible for the Second Defendants to properly defend those allegations in respect of documents, nor is it reasonable to do so almost 100 years later; and
    • (e) Inordinate delay.

F. DISCUSSION:

40. Counsel have taken me through at length sections 34, 70 and 71 of the Land and Titles Act 1971 and the exclusive jurisdiction of the Land and Titles Court on matters relating to Samoan matai titles and customary land. The only basis on which the Supreme Court can review decisions of the LTC and the LTCA is for a breach of the Constitution.
41. The principle question in these proceedings is whether, assuming the facts pleaded are capable of being proven, whether it is perfectly clear that the Plaintiffs’ claim that their right to a fair trial has been breached cannot possibly succeed, is hopeless or without foundation.
42. The pleadings do not place at issue that the Plaintiffs:
    • (a) Had access to the Courts of the Land and Titles Court;
    • (b) The Courts were established under law; and
    • (c) The Courts were independent and impartial.
43. What is at issue is the procedure adopted in the LTC jurisdiction in terms of the use and reliance on the questioned documents. In particular, relevant for my determination in these strike out proceedings is the assertion by the Plaintiffs that the ‘questioned documents’ had only been cited “by the parties represented by Mulitalo Lisona, Manoo Mulitalo Lutena and Galea’i Pa’u Tafaogalupe Mulitalo” and the documents discovered by the Plaintiffs after the LTC hearing.
44. If this is correct, the Plaintiffs claim against the First and Second Defendants cannot be characterized as one that cannot possibly succeed, is hopeless or without foundation. This is because if the ‘questioned documents’ were not available to the Plaintiffs at the hearings in the LTC jurisdiction but they were however referred to and relied on by the First and Second Defendants, the LTC questioned the parties on those documents and those documents were then relied on by the LTC in its judgment, then the Plaintiffs claim cannot in my assessment be said as one that cannot possibly succeed, hopeless or without foundation. The purported failure by the Plaintiffs to have access to the ‘questioned documents’ for the purposes of the LTC proceedings, if correct, may amount to a breach of the right to a fair trial in these circumstances.
45. On the material before me, the determination of whether the Plaintiffs had access to the ‘questioned documents’ for the purposes of the LTC hearing will be fact specific. It is likely to be in dispute between the parties. These are best left to the trial proper of this matter where witnesses can be cross-examined.
46. For the Plaintiff, I have identified a number of procedural issues with the amended pleadings in terms of the parties. As should also now be clear, a claim for the breach of the right to a fair hearing is to do with:
    • (a) The right access to the Court;
    • (b) That the Court is established under law;
    • (c) The Court is independent and impartial; and
    • (d) The conduct of the hearing itself is fair.
47. It is the sum of these that make up the whole of the right to a fair hearing (Golder v United Kingdom (supra)). The strength of the Plaintiffs case is in the allegation that they did not have access to the ‘questioned documents’ prior to the LTC hearings. It is this allegation as to the procedure and conduct of the LTC hearing that may ultimately constitute a breach of the Plaintiffs right to a fair hearing.
48. In terms of the grounds for these proceedings to be struck out for inordinate delay, I do not find the delay to be inordinate. The relevant delay is the time from when the LTC and LTCA hearings concluded in 2015 and 2017 to when these proceedings were filed. I also do not find the alleged failure to exhaust alternative remedies as a basis to strike out these proceedings as having any real merit. Leave to appeal was declined.
49. In terms of the question of determining the authenticity of the ‘questioned documents’ and how this question is pleaded in these proceedings, that is unlikely to be a question that goes to the fair conduct of the LTC and LTCA hearings as no issue was raised in those hearings in the pleadings about the authenticity of those ‘questioned documents’. This is more an issue of new evidence. I will not however at this juncture strike this part of the claim out as I am allowing the Plaintiff an opportunity to file a further Amended Statement of Claim and the Plaintiff may reconsider this allegation given what I have said in this judgment.
50. In all therefore, while I accept that the Plaintiffs claim for their alleged breach of their article 9(1) right to a fair hearing against the First and Second Defendants are not well pleaded, I do not find that it is perfectly clear that the plea cannot succeed or is doomed to failure. In reaching this conclusion, I bear in mind the interpretation that has been applied by the ECHR in terms of article 6(1) of the European Convention on Human Rights in Kerojavi v Finland (supra).
51. While I am not satisfied that the Plaintiffs claim should be struck out at this juncture, I am satisfied that the Amended Statement of Claim at paragraph 24 fails to sufficiently particularize the allegation that the Plaintiffs did not have access to the ‘questioned documents’ for the purposes of the LTC hearing. I will accordingly grant leave for the Plaintiffs to further amend the Statement of Claim to better particularize this allegation which is also reflected in the Plaintiffs Notice of Opposition to the First Defendant’s Strike Out Motion that they only discovered the ‘questioned documents’ after the proceedings in the LTC.
52. The Plaintiff should also consider my comments concerning the intitulement to these proceedings. In relation to the citation of Luatupu Ioane-Cleverley, Leuma Elisara and Mao Peter Rasche as Plaintiffs, leave will be granted for the Plaintiffs to better particularize the basis of their claim to standing to bring these proceedings as Plaintiffs bearing in mind my earlier comments above. Alternatively, they may set to be struck out as Plaintiffs.
53. Counsel should also bear in mind that the role of this Court in terms of determining whether the Plaintiffs rights to a fair trial in the LTC and LTCA have been breached relate to those matters that I have set out at paragraph 46 above relating to the conduct of the LTC or LTCA hearing. Where a breach of the right to a fair hearing pursuant to article 9(1) is held to have occurred in how the LTC or LTCA proceedings were conducted, this Court does not determine the matter but remits it back to the LTC for re-hearing.
54. If the Plaintiffs amended pleadings do not address the matters raised in this judgment, those amended pleadings may be susceptible to a further application for striking out by the Defendants.

G. RESULT:

55. For the reasons that I have set out, the application to strike out the Plaintiffs Amended Statement of Claim and Amended Motion for Judicial Review is dismissed.
56. Leave is granted for the Plaintiffs to file a Second Amended Statement of Claim and Second Amended Motion for Judicial Review:
    • better particularizing the pleadings as to the allegation that the Plaintiffs did not have access to the ‘questioned documents’ for the LTC hearing and if applicable, the LTCA hearing;
    • particularizing the basis that Luatupu Ioane-Cleverley, Leuma Elisara and Mao Peter Rasche have standing to bring these proceedings as Plaintiffs; and
    • to amend the pleadings as may be deemed necessary to take into account what I have said at paragraph 49 above.
57. These are to be filed and served no later than 3.00pm Monday 14 September 2020.
58. Costs reserved.

JUSTICE CLARKE