Galuvao v Land and Titles Appellate Court [2021] WSSC 20 (7 May 2021)

SUPREME COURT OF SAMOA
Galuvao v LTAC, LTC and Toelupe [2021] WSSC 20

Case name:	Galuvao v LTAC, LTC and Toelupe
Citation:	[2021] WSSC 20
Decision date:	7 May 2021
Parties:	FAAMAUSILI MISA ALE FALEMALIETOA TAUAVE GALUVAO of Malie, Samoa and American Samoa, Matai and Independent Contractor (Applicant) v LAND AND TITLES APPELLATE COURT, a Court continued pursuant to the provisions of the Land and Titles Act 1981 (First Respondent), LAND AND TITLES COURT, a Court established pursuant to the provisions of the Land and Titles Act 1981 and FAAMAUSILI PALETUATOA TOELUPE of Malie, Matai (Second Respondent).
Hearing date(s):	1 and 2 September 2020
File number(s):	CP109/16
Jurisdiction:	Civil
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	CHIEF JUSTICE PERESE
On appeal from:	Land and Titles Appellate Court
Conclusion: Order:	- The 1999 ADLTC decision breached the Constitutional rights of Faamausili Galuvao and his family - The 1999 ADLTC decision is quashed in its entirety. - The issue concerning suli may appear unconnected to the determination of which version of the 1934 Land Commission decision the Court was obliged to apply, however these two aspects of the decision (concerning the Land Commission decision, and the determination of the suli) may be but two different sides of what appears to be the main issue in the appeal - who had the pule of the title. If it was Malietoa, then the Samoan version of the decision applied, as decided in the 1998 LTC decision. However, if it was the itu paepae o Taliitu who had the pule, then the basis of the conferment on Faamausili Toelupe could only have been authorised if he had been selected by the suli. The determination of the suli is a matter to be determined by the LTC pursuant to the order set out below. - This Court orders the issue of whether Faamausili Galuvao and his family are suli o le suafa Faamausili o le itu paepae o Taliitu o Malie - the heirs of the title of Faamausili of the Taliitu branch of the village of Malie - be the subject of a hearing before the LTC. Judges and Assessors of that Honourable Court who have already been involved with the issues concerning suli should not sit on the panel of the Court. - Costs are awarded to the applicant and his family. The parties are to file their memoranda with the Court within 10 days of this judgment if they are unable to resolve the issue of costs between them. -
Representation:	T B Heather-Latu for Applicant F S Ainuu for First and Second Respondents L J Annandale for Third Respondent
Catchwords:	Ultra vires – quashed
Words and phrases:	application for judicial review – right to a fair trial – fundamental right – causes of action - breached of constitutional right to a fair trial under Article 9 – denial of procedural fairness – breach of statutory duty – error of law - actual and presumptive prejudice
Legislation cited:	Article 9 Part II of the Constitution of Samoa Land and Titles Act s.40, s.70 Constitutional and Administrative Law in NZ (2001) 2nd ed by PA Joseph De Smith’s Judicial Review
Cases cited:	Alaimoana Uelese v Lands and Titles (unreported, Supreme Court, Young J, 4 November 1998) Ainuu v Lands and Titles Court [2011] WSS 36 Bradbury v Enfield LBC[1] Fatupaito v Johns [1980] WSSC 1 Land and Titles Appellate Court in 1999 in LC 8065 P3-P4 2016 LTC decision 2007 LTC decision 1934 Land Commission decision
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER OF
an Application for Judicial Review.

BETWEEN:

FAAMAUSILI MISA ALE FALEMALIETOA TAUAVE GALUVAO of Malie, Samoa and American Samoa, Matai and Independent Contractor.
Applicant

A N D:

LAND AND TITLES APPELLATE COURT, a Court continued pursuant to the provisions of the Land and Titles Act 1981.
First Respondent

A N D:

LAND AND TITLES COURT, a Court established pursuant to the provisions of the Land and Titles Act 1981.
Second Respondent

A N D

FAAMAUSILI PALETUATOA TOELUPE of Malie, Matai.
Third Respondent

Counsel:
T B Heather-Latu for Applicant
F S Ainuu for First and Second Respondents
L J Annandale for Third Respondent

Hearing: 1 and 2 September 2020

Judgment: 7 May 2021

JUDGMENT OF PERESE CJ

INDEX Paragraph Nos.

1987: the conferral on Faamausili Toelupe21.
1991: the second conferral on Faamausili Toelupe30.

The 1999 ADLTC decision: LC 8065 P3 – P4 – 12 March 199937.
The parties in the 1999 appeal39.
Summary of the main arguments before the ADLTC40.

2007 LTC L.C. 10933 P2-P348.
2016 LTC LC 10933 P7-P9 50.
Conduct of the 2016 LTC hearing54.
The Pleadings

First and Second Respondents65.
Third Respondent66.
ARTICLE 9 OF THE CONSTITUTION: RIGHT TO A FAIR TRIAL 68.
DISCUSSION70.
A determination of civil rights?71.
Was the applicant and members of the Taliitu itu paepae given a fair and public hearing? 75.
Notice of the ADLTC hearing76.
Misa Tiki80.
Is there undue delay in the bringing of the proceedings?
First and Second Respondents83.
Third Respondent87.
The principles which guide the Court in its exercise of its discretion concerning delay89.
Prejudice93.
What is the context of the breach99.
CONCLUSION101.
ORDERS105.

INTRODUCTION

1. When, in 1999, the Appellate Division of the Land and Titles Court (“ADLTC”) led by Chief Justice Patu, as he was, determined that Faamausili Folomalo Vaito’a Toelupe (“Faamausili Toelupe”) was selected to hold the matai title of Faamausili by the suli tama fafine o le itu paepae o Taliitu (the female heirs of the Taliitu branch), was it appropriate to reach to that conclusion without hearing from anyone outside the named parties in the appeal who may have had a material interest in the determination?
2. The applicants in this application for judicial review are Faamausili Misaalefalemalietoa Tauave Galuvao and his family (“Faamausili Galuvao”). They say they are and were interested parties, but they were not parties to or given notice of the 1999 ADLTC hearing or the antecedent Land and Titles Court (“LTC”) decision in 1998.
3. Faamausili Galuvao claims he and his family are the suli or heirs of the title, because they belong to “an unbroken line of descendants” which include his “great great great great Grandfather Faamausili Lauuluovini” the “Leo’o (first) of the title Faamausili of Malie”.
4. The applicants claim they were denied the right to a fair trial in 1998 and 1999; a fundamental right protected by Article 9 of the Constitution of Samoa.
5. The issue in this case is whether the right applies to a situation involving a person who is not a party to litigation but who claims to have an interest in its outcome.
6. For the sake of clarity, the parties are agreed that the applicants were not parties to the 1998 nor 1999 proceedings before the LTC and the ADLTC respectively.
7. I also make plain that this Court is only concerned with the process by which the LTC and the ADLTC reached their decisions. Consequently, it is not necessary to traverse evidence led at the hearing which tended to cover the merits of those Court’s respective decisions.
8. Having said that, however, I am satisfied that the applicant and his family did have a right to be heard and that such right was breached. A relevant objection lodged in 1987 by Faamausili Tavita o Malie, ma le aiga potopoto, ma suli o Faamausili Taliitu o Malie (“the 1987 objection) LC 8065 P2 remained unresolved at the time of the 1999 hearing. It was wrong for the ADLTC to have summarily disregarded the objection without hearing from Faamausili Tavita, or someone in his family on the terms of their objection. It cannot on any view be considered appropriate that a matter which is extant before the Court can be perfunctorily and unilaterally dismissed without giving that party an opportunity to be heard.
9. There does not appear to have been any effort made to serve the initial proceeding or the appeal proceeding on Faamausili Tavita and his family.
10. I now set out the basis of my decision.

The parties

11. Faamausili Galuvao says he was bestowed the title of Faamausili in 2004 by the senior members of the Taliitu Itu Paepae of the sā Faamausilì family from the village of Malie, with Malietoa’s blessing. He deposes in the first of his four affidavits, the other members of Taliitu itupaepae support his application before the Court, at paragraph 7:
    • “ACCORDINGLY as a Faamausili Misa title holder, and as a true heir of the Taliituletolu branch of the Faamausili family, I consider that I have the authority to bring an action or file proceedings on behalf of my extended family (being the Taliituletolu branch or Itu Paepae of the title Faamausili in the village of Malie) and have discussed with my extended family my intentions and they support and wish me well in this endeavor (sic) and simply seek the ability to control our own destiny and have input into matters which affect and related to our family; our matai titles and the welfare of our children and our future descendants – the same as all other families”.

Later at paragraph 12, Faamausili Galuvao says:

THESE proceedings relate to the Taliitu Itu Paepae of the ‘Faamausili’ title in Malie and relate to my application to set aside certain findings made by the Land and Titles Appellate Court in 1999 in LC 8065 P3-P4 (by the Honourable Chief Justice in his capacity as the President of the Land and Titles Court) (sic) which has had the effect of prejudicing the ability of our Taliitu Itu Paepae from being able to seek confirmation or clarity of the ‘suli fa’avae’ of our branch due to one aspect of the 1999 Appellate Court decision. I believe those particular findings were made without a proper hearing or specific evidence or in accordance with a fair process, yet have seriously prejudiced the conduct of our family’s affairs as well as the control and authority of our family by the rightful blood heirs of ‘suli’.

12. The respondents have not challenged the representative party nature of the proceedings. I am satisfied that the evidence supports a determination that this proceeding for judicial review in Faamausili Galuvao’s name is a representative proceedings under r.36 of the Supreme Court Civil Procedure Rules 1980:
    • “Where there are numerous persons having the same interest in an action, one or more of them may sue or be sued, or may be authorised by the Court to defend in the action, on behalf of or for the benefit of all persons so interested”.
13. There is a recognised group of persons whom belong to the Taliitu Itu Paepae, as aligned with Faamausili Galuvao as their sa’o; they were persons who were parties to the 1987 objection and are entitled to have their interests concerning their families affairs and matai titles, heard in this action.
14. The first and second respondents are Courts of competent jurisdiction constituted under the Land and Titles Act 1981 (“LTA”). The LTA provides that the LTC continues to be a Court of record, and that in addition to the powers conferred on it by the Act, the Court also has all the powers that are inherent in a Court of record. The Court has exclusive jurisdiction in relation to all matters relating to Samoan names and titles, and it is required to apply custom and usage; the law relating to custom and usage; and any enactment expressed to apply to the Court. The ADLT is the appeal division of the LTC and its powers on appeal are set out in s.89 LTA. Those powers are to dismiss or uphold the appeal, set aside or vary the final decision or order appealed against, and make orders as to costs. A decision on appeal is final: s.90 LTA, which is an ouster that does not survive the application of the Constitution and the fundamental rights preserved in Part II.
15. Critically for the purposes of this dispute, the ADLTC has all the powers and jurisdiction of the Land and Titles Court: s.77(4) LTA, and it therefore has the duty to decide all matters in accordance with what it considers to be fair and just between the parties: s. 37(2).
16. The third respondent is the late Faamausili Paletuatoa Toelupe, (who is in turn the late brother of Folomalo Vaitoa Toelupe), as substituted by Galumalemana Lakisa Toelupe. The third respondent filed an affidavit dated 16 October 2017 wherein he deposes that he is the rightful heir of the Faamausili title of Malie, as determined by LC10933 P7-P9, a 2016 decision of the LTC.

BACKGROUND

17. This application relates to ongoing disputes between the applicant and his family and the third respondent and his family over the issue of suli – heirs of the prestigious sa’o title of Faamausili.
18. The context of the dispute appears to be as follows.

The dispute between Tavita and Toelupe

1985: the conferral on Faamausili Tavita

19. Faamausili Tavita was conferred the title of Faamausili on or about 17 July 1985. The conferral was challenged by Mr Toelupe, as he was; the objection was made to the LTC on or around 30 August 1985. The grounds of the objection were that Faamausili Tavita was obliged but had failed to consult him, Mr Toelupe, about the conferral.
20. The LTC records produced to this Court records that the conferral of Faamausili on Tavita was registered. However, it is not clear when and how that happened, or whether the conferral was duly advertised in accordance with the Act.

1987: the conferral on Faamausili Toelupe

21. Approximately, 18 months later, in December 1986, Mr Toelupe gave notice of his intention to be conferred the title of Faamausili at a saofai.
22. This conferral was made and duly advertised in the Savali newspaper on 31 January 1987.
23. The main purpose of advertising is to enable members of the public to lodge an objection against the conferral.
24. And that is what Faamausili Tavita did, two weeks after the publication of the advertisement in the Savali. Faamausili Tavita objected on the basis that he and his family were the true heirs of the Faamausili Taliitu title, and they alone had the power to select a candidate to hold the Faamausili from their itupaepae; and that Faamausili Toelupe and his supporters were not members of the Faamausili Taliitu itupaepae (“the 1987 objection”).
25. Faamausili Toelupe filed a response to Faamausili Tavita’s objection.
26. Clearly, at this time, the LTC was seised of the 1987 objection; the objection had been filed and accepted for filing, the objection being presumably served and responded to by the respondent.
27. The evidence then shows that Faamausili Tavita’s objection and Faamausili Toelupe’s response was called before the LTC on 5 November 1990. A LTC report of the hearing, records that the hearing of the objection was adjourned to allow the parties to try to resolve their dispute between them.
28. There was no evidence before the Court that the objection had been withdrawn or determined. The court therefore remained seised of the matter.
29. The 1999 ADLTC decision being challenged in this application described what happened as follows:
    • “Sa fofogaina lea mataupu e le Faamasinoga i le aso 5 o Novema 1990. Peitai sa toe tolopoina le Faamasinoga ae poloa’iina ia itu e lua e fofogaina Malietoa e tusa ai ma manaomiaga o le vaega 3 o le faaiuga o le aso 8 o Aukuso 1934 ona o le feeseeseaiga ua tulai mai.
    • Sa faapea o itu e lua e fofogaina Malietoa ma o le tali a Malietoa ia toe fo’i i fanua e talanoa lelei ai le mataupu ona toe logo atu lea o ia. Peita’i ina ua toe fo’i i fanua e le’i maua se tonu mautū o le mataupu. Ona toe fo’i lea o Faamausili Tavita i Amerika ma nofonofo ai. O lea na toe feiloa’i atu ai ia Toelupe Vaito’a i ā Malietoa e tusa ma le tulaga ua taunuu i ai le mataupu i le nofo a Folomalo Vaito’a i le suafa Faamausili”.
30. Tavita left Samoa and returned to the United States. No mention of what happened to the objection, which the ADLTC knew existed with the reference to the call before the LTC on 5 November 1990.

1991: the second conferral on Faamausili Toelupe

31. A further bestowal of the Faamausili title on Toelupe was made in 1991.
32. In the second conferral, Malietoa signed the conferral in the role of the fa’apogai, or the person who authorised the bestowal. The ADLTC accepted the submission of Toelupe Vaito’a attended Malietoa and that Toelupe was bestowed the Faamausili title on Malietoa’s authority. The ADLTC decision appears to infer that Faamausili Tavita’s return to the United States to nofonofo ai, together with the conferral of the Faamausili title on Toelupe Vaito’a by Malietoa, resolved the 1987 objection.
33. It may also have been relevant to the ADLTC that Faamausili Tavita did not object to the 1991 conferral on Faamausili Toelupe.
34. Faamausili Galuvao gave evidence that his father Faamasuili Tavita died in December 1997. In the absence of any evidence to the contrary it appears that at the time of his passing, Tavita still held the title Faamausili which had been conferred on him in 1985.

The 1998 LTC decision LC 8065 – P3-P4 – 3 March 1998

35. In 1997 Malietoa caused a petition to be issued on his behalf in the LTC seeking orders that His Highness could strip Faamausili Toelupe of the two titles he gifted to Faamausili Toelupe and his family.
36. The application was heard by the LTC in 1998, and in giving its decision in LC 8065 – P3-P4, 3 March 1998, the LTC held (1) the Samoan version of a 1934 Land Commission decision applied to the dispute, (2) that Toelupe was bestowed the Faamausili by Malietoa’s pule on 30 November 1991, and (3) What Malietoa gave, Malietoa could also take away.
37. The matter of the identity of the suli o le itu paepae oTaliitu – the heirs of the Taliitu branch, was not the subject of argument or evidence in the 1998 LTC hearing. The matter which was in issue concerned the scope of Malietoa’s authority over the Faamausili title. The issue did not directly affect Faamausili’s family. Faamasuli Tavita having passed away the year before.

The 1999 ADLTC decision: LC 8065 P3 – P4 – 12 March 1999

38. On appeal to the ADLTC – P3-P4, 12 March 1999, the ADLTC came to a different conclusion.
39. The ADLTC held the scope of Malietoa’s authority was detfined by the English version of the 1934 Land Comission decision.

The parties in the 1999 appeal

40. The parties before the ADLTC were Folomalo Vaito’a Toelupe and and Maualaivao Pepe as the first appellants. Le Tagaloa Pita the second appellant. The first respondents were Leafa Vitale, Maualaivao Neru, Faamausili Maoama, Sauniaau Tautigā, Faamausili Ale and Si’a Amani; and the second Respondents were the Alii & Faipule of Malie. These were the same parties as appeared at the 1998 LTC hearing.

Summary of the main arguments before the ADLTC

41. Faamausili Toelupe and Maualaivao Pepe told the ADLTC in their evidence that they explained to Malietoa that they were unable to reach a resolution with Faamausili Tavita, and that Faamausili Tavita had returned to the United States. They said that following this advice, Malietoa went to Mr Toelupe to bestow the Faamausili title to Toelupe’s family. Faamausili Toelupe and Maualaivao Pepe’s account of the events with Malietoa was consistent with the English version of the 1934 LC decision: namely, that Malietoa only became involved to resolve disputes within itu paepae.
42. Mr Vitale and the other respondents, on behalf of Malietoa, had a different version of events. They did not focus on Faamausili Tavita’s return to the United States or the reasons for that return. The respondents evidence was that Mr Toelupe frequently visited Malietoa urging or pleading for the grant of two titles – a Faamausili and Maualaivao for his family. It was this urging or pleading which led to Malietoa bestowing the Faamausili on Toelupe on 30 November 1991. The respondent’s account of events seems to be consistent with the Samoan version of the 1934 decision which records that Malietoa held the pule or ultimate authority over the Faamausili title.
43. Given that the two main arguments in the ADLTC were based on the interpretation of the 1934 Land Commission decision - LC 788, 8 August 1934, I shall set them out below. The Commission held:
    1. O le faasalafaina o le suafa “Faamausili” i ituaiga e 5 e faapea, o Tamaa’au, Lafituana’i, Tofae, Taito, ma Taliitu, sa faia e Malietoa Tanumafili, ua faamaonia nei aua sa ia te ia le pule e faasalafa ai.
    2. E tofu ituaiga taitoatasi o nei ituaiga e 5 ma la latou filifiliga e filifili ai i le tofia o so latou matai.
    3. Afai e tupu se finauga i se ituaiga ona fa’ato’ā logo lea o Malietoa, o lē o i ai le pule.

The English translation provides:

1. The division of the title Faamausili among the five branches of the family, namely Tamaa’au, Lafituana’i, Tofae, Taito and Taliitu, made by Malietoa, is hereby confirmed because he had the power to make such division.

2. Each one of the 5 branches of the family Faamausili is empowered to select its own matai.

3. If a dispute should arise in any branch, such a dispute will be referred to Malietoa, who will have the power to decide it.

44. The differences between the two versions are significant. No one from Faamausili Tavita’s family was given an opportunity to be heard on which version the Court might apply.
45. In the Samoan version, the word pule is used to describe the basis of Malietoa’s involvement in any dispute within a branch about who should hold the title; Malietoa had the pule or ultimate authority over the title – meaning that His Highness could create a new Faamausili if he so desired.
46. On the other hand, the English version says that Malietoa had an administrative type role – Malietoa had the power to decide a dispute arising in a branch; the pule belonged to the relevant itu paepae.
47. The ADLTC said that it preferred the English version over the Samoan version. This meant Malietoa did not have the pule over the Faamausili title – which would have enabled him to create a new Faamausili. The ADLTC held, at paragraph 13, that Malietoa had devolved his pule over the title of Faamausili in 1934 to five itu paepae. His Highness could therefore not remove the title from Toelupe; the pule of the title had been devolved and now belonged to the itu paepae o Taliitu, not Malietoa. Having reached that point, the appeal had been determined: the LTC decision was reversed. However, the ADLTC went further.

Heirs of the Matai title Faamausili – Suli o le suafa o Faamausili

48. The ADLTC observed that Folomalo Vaito’a was selected to hold the title of Faamausili by the “suli itu tama fafine i le itu paepae a Taliitu” - the heirs of the female line of the Taliitu branch. This one line has been relied on by later LTC decisions, as follows.

2007 LTC L.C. 10933 P2-P3

49. In 2007, the applicant lodged with the LTC an objection to the conferment of the Faamausili title on Paletuatoa Toelupe. There were three applicant parties. A number of submissions were advanced by them. The applicant’s most relevant submission, for the purpose of this matter, is that the suli moni or true heirs of the Faamausili Taliitu had not given their approval to the conferment.
50. The LTC considered it was bound by the terms of the 1999 ADLTC decision and urged the two sides – itu tama tane (male side), to which Faamausili Galuvao and his family belong; and the itu tama fafine (female side), to which the 3^rd respondent belongs, of the itu paepae to resolve their dispute between them with respect to future appointments.

2016 LTC LC 10933 P7-P9

51. In this hearing, the LTC considered the issue of “suli faavae ma suli moni o le suafa Faamausili o le itu paepae o Taliitu i Malie”- the founding heirs and true heirs of the matai title of Faamausili of the branch of Taliitu in the village of Malie.
52. As the LTC records at paragraph 4(a) of this decision, the applicant wrote a letter to the President of the Court, dated 29 August 2016. In it, Faamausili Galuvao sought an adjournment of the inquiry into the suli of Taliitu on the basis that he was challenging by way of appeal LC 10933 P2-P3 (the 2007 decision), and LC 8065 (the 1999 ADLTC decision, which was filed on 30 May 2016, this proceeding.)
53. The President declined the application for an adjournment on 16 September 2016. In the learned President’s view, the challenges which the applicant wrote to him about were not relevant to the proceedings before the Court. The hearing commenced on 13 October 2016.
54. How much time is reasonably required to prepare for a hearing depends on the facts of each case. In my view a period of a month was sufficient time within which the applicant could have prepared his case for the 2016 hearing; the issue was one in which he had a deep and commanding knowledge, evident from the detail of the information he provided to this Court. He had previously participated in the 2007 decision and was therefore familiar with the procedure of the Court, and perhaps its robustness. And, although the applicant had applied for an adjournment, he would not have been entitled to rest on the making of his application; he was bound to continue to prepare for the scheduled hearing.

Conduct of the 2016 LTC hearing

55. The Court is, however, troubled by the assertions Faamausili Galuvao deposed in his affidavit, sworn on 28 July 2017. His individual complaints coalesce into a general complaint that he was not given a fair hearing at the 2016 LTC hearing. If these specific allegations are true, and they have not been sought to be rebutted by the respondents, they give rise to serious concern about the conduct of the hearing.
56. Faamausili Galuvao said at paragraph 15:
    • (a) When I tried to explain my answers to their queries I was directed ‘No, just a ‘yes or no’ answer will do from you’;
    • (b) Judge Auelua in particular told me outright that my gafa was incomplete and when I tried to ask in what why (sic) and to explain my own gafa she rejected any response from me;
    • (c) She rejected the death certificates of Misa Lasalo and Faamausili Levi, and asked why I did not have the birth certificates and I advised they were not recorded in the Registry, perhaps because my grandfather had been born in Malie;
    • (d) They challenged my “Misaaliialefalemalietoa’ title and the correct spelling of it and when I tried to explain they said just answer ‘yes or no’, which I found somewhat offensive and not reflecting any respect or honour for my family and its precious ‘measina’ which seemed to be dealt with in a rough and rude manner by those who should have been more sensitive to the important issues they were being asked to deal with;
    • (e) When I tried to explain that the Toelupe gafa had a usuga to our Taliitu family that did not exist, they became very angry although I tried to explain that I had met with the sa’o of the ‘Aloniu’ family where the woman ‘Fuatino’ who the Toelupe say was the usuga with Faamausiili which produced their branch) and that this very family had recently had a Lands and Titles decision on their family gafa and it confirmed there was no such usuga to Malie in their family. This explanation could not be made during the hearing as the different sides were angry and the Court would not accept my submissions.
    • (f) The judges from the Lands and Titles Court were very angry with me from the outset, and asked if I was the one who had brought Judicial review against the Court, and that this was a different matter and were extremely hostile throughout the hearing as if by filing a judicial review I was challenging their status and authority.
    • (g) I do not believe I had a fair trial in any manner or form and far from being a hearing about suli faavae it became a hearing to declare my family non suli which I felt was punishment for daring to challenge the Lands and Titles Court by filing a judicial review case.
    • (h) ...
57. I do not consider the allegations concerning Judge Auelua have merit – the types of interaction described are fairly typical during a robust hearing. Indeed, Judge Auelua’s notice to Faamausili Galuvao that she did not accept the evidence of the death certificates, gave him a valuable opportunity to review his evidence. It maybe that the complaints against Judge Auelua have taken on a more prominent role in Faamausili Galuvao’s perception because of the nature and number of other complaints he highlights, or simply because he lost the case.
58. Inquisitorial hearings such as those in the LTC can at times be robust; that is the nature of the judicial process.
59. However, it is not generally acceptable for witnesses to be directed to give yes or no answers during the giving of their evidence, or in giving their answers to questions from the bench.
60. There is an inherent imbalance of power in a court room between the bench and the parties. It would be difficult for the Court to achieve a fair trial where a party giving evidence is told by the Judge that the party cannot give his answers except by answering yes or no. Binary answers are often responses to leading questions, which are more suited to closing down or limiting a witness’ answers. That is to be contrasted with open ended questions which are asked so as to bring out a witnesses evidence, and not so as to elicit a particular answer. Witnesses are entitled to give their answer in full, and certainly not treated in a hostile manner; the Court needs to be mindful of how its conduct is perceived.
61. Although the respondents have not filed evidence to challenge Faamausili Galuvao’s affidavits, the Court does not uncritically accept the evidence. It may be the evidence relied on is inherently unreliable or flawed.
62. Not every question accompanied by a direction to give a yes or no answer can be complained about. However, when a party considers that they have not been given a chance to give their evidence, then that attracts the Court’s attention. Faamausili Galuvao’s complaint seems to be reflected in the LTC judgment, which notes at page 8:
    • “E manatu le Faamasinoga e matuiā tele vaega o lo o taumafai mai iai [Faamausili Galuvao] lenei i le toe lu’itauina o Faaiuga ua taoto a le Faamasinoga, ma aumai gafa sese ma ua le tusa ai ma a latou tautoga”.
    • One of the authorities which the LTC might have considered sacrosanct and beyond challenge, and futile for Faamausili Galuvao to challenge in the 2016 hearing, may have been the 1999 ADLTC decision. The third respondents (in this proceeding) relied on the 1999 decision as authority that they were suli tama fafine, per paragraph 2(e) of the judgment at page 4. In my view respectful view if the proceeding before the LTC was to determine the suli moni or the suli faavae of the Faamausili title, then Faamausili Galuvao should have been given the opportunity to challenge the earlier decisions; instead he appears to have been told that he was arguing the wrong issue.
63. Having seen and heard Faamausili Galuvao I am satisfied that he is as a credible witness. This assessment when coupled with the LTC’s basis for dismissing Faamausili Galuvao’s case – that he was trying to upset established precedent, paints a concern of miscarriage of justice. I am left with little doubt that Faamausili was unfairly prevented from being heard.

The pleadings

Applicant

64. Having set out the relevant background and context, I now turn to the legal mechanics of the case, beginning with the pleadings.
65. The applicant pleads six causes of action, which I respectfully paraphrase as follows:
    • (a) The first respondent breached the applicant’s constitutional right to a fair trial under Article 9. This breach is particularised in a number of respects, and the circumstance which is most relevant is that the 1999 decision determined the civil rights of the Applicant and the Taliitu family, but that they were not given the opportunity to be consulted or heard on the issue. The applicant claims the LC 8065 P3-P4 hearing should have been adjourned to enable the 1978 and 1991 objections, which were filed by Faamausili Tavita to be determined, or so that members of the Taliitu family (now represented by the applicant), could be joined as parties.
    • (b) Judicial review –unreasonableness. The applicant pleads the first respondent did not have the jurisdiction to determine whether Toelupe was an heir given that the question had not been the subject of proper enquiry and formal submission by interested parties, including the applicant and the applicant’s family. Furthermore, the determination was unreasonable because the very issue which the ADLTC decided–the lineage of Toelupe with respect to the Faamausili title, was the subject of an unresolved objection that was already before the Court.
    • (c) Error of law. The ADLTC misapplied ss37 and 47 of the Act by failing to allow the second respondent to determine the issue of the true heirs of Taliitu.
    • (d) Denial of procedural fairness. The ADLTC wrongly accepted a bare assertion that Toelupe was an heir of Taliitu without testing the evidence or adjourning the case until the issue had been resolved, or by allowing the Taliitu family the opportunity to test this assertion. As part of the pleading for procedural fairness, the applicant pleads that the ADLTC failed to properly consider its jurisdiction and whether the finding that Toelupe was an heir of the sā Taliitū was properly before the Appellate Court; failed to consider whether the issue of true and foundational heirs of Taliitu had been the subject of a proper hearing with all the relevant to parties being present. And, the LTC failed to accept a request by the applicant for the Court to confirm the true heirs of sā Taliitū.
    • (e) Ultra vires. The ADLTC was not seised of the petition LC 8065 P2, which had not been considered or heard by the Second Respondent and was not a matter under appeal. LC 8065 P2 concerned Faamausili Tavita’s objection lodged on 17 February 1987and in 1990 opposing the conferral of the Faamausili title upon Toelupe.
    • (f) Breach of statutory duty. The ADLTC owed a duty under s.47(2) of the Act, which subsection refers to the making of rules of the Court to act in a manner consistent with natural justice and that it acted contrary to ss37 and 47 of the Act by making a decision on an issue which was not properly before it.

First and Second Respondents

1. The first and second respondents oppose the application on four grounds:
   • (i) That for this Court to consider the applicant’s argument that his right to a fair hearing has been breached, that the Court would have to engage in the type of assessment that is prohibited by the LTA;
   • (ii) The applicant has had his day in court in that the opportunity to advance his argument against the 1998 and 1999 decisions in later litigation in 2007, 2012, 2014 and 2106;
   • (iii) There has been an inordinate delay in bringing the proceedings;
   • (iv)
   • (v) The effect of the Applicant’s application would affect parties in the individual decisions made in 2007, 2012 and 2014 who are not parties to this proceeding.

Third Respondent

66. The third respondent pleads in its notice of opposition
    1. The applicant:
       1. has not demonstrated how any of the decisions subject to judicial review have breached his right to a fair trial;
       2. how his non-attendance amounted to procedural unfairness and thereby breached his/their right to a fair trial;
       100. the nature of the alleged procedural unfairness;
    2. The Applicant has not demonstrated what statutory duties of the LTC the ADLTC were breached, but that in any event any breach was subject to the limited scope of judicial review of decisions of the LTC;
    3. The common law grounds of judicial review do not fall within the limited scope of judicial review actions against decisions of the LTC.
67. I turn now to consider the first cause of action.

ARTICLE 9 OF THE CONSTITUTION: RIGHT TO A FAIR TRIAL

68. Article 9 Part II of the Constitution relevantly provides:

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....

(Emphasis added)

69. The parties are agreed the grounds of challenge to a LTC decision, by way of judicial review, is limited to a breach of a fundamental right in Part II of the Constitution: Alaimoana Uelese v Lands and Titles (unreported, Supreme Court, Young J, 4 November 1998):
    • “The Supreme Court can review decisions of the Land and Titles Court where it is established that the Land and Titles Court has breached Part II of the Constitution fundamental rights of a litigant”.

DISCUSSION

70. The issues I must decide are discussed under the following headings:
    1. Whether the 1999 ADLTC decision determines the applicant’s civil rights.
    2. If it does, then was the applicant, and those for whom he purports to act, given a fair and public hearing by an independent and impartial tribunal?
3. If they were not given a fair and public hearing, then is the delay in bringing the proceedings a bar to the application for judicial review.

A determination of civil rights?

71. In our legal tradition, civil rights include rights that arise between subject and subject, including corporations: Fatupaito v Johns [1980] WSSC 1. Faamausili Galuvao challenges Faamausili Toelupe’s right to hold the title of Faamausili. The determination which Faamausili Galuvao seeks to challenge is a decision of a competent court of jurisdiction that has the effect of being a judgment in rem and binds all Samoans who are affected by it, whether parties to the proceedings or not.
72. Faamausili Galuvao seeks to invoke the fundamental rights contained in the Constitutional as a shield to the limitation contained in s.70 of the LTA. The respondents did not seek to rely on the limitation in the LTA.
73. It is generally the case that written Constitutions such as ours are expressed in broad language and it is for the Court to interpret and apply the supreme law to particular circumstances. The fundamental right in Article 9 concerns the right to a fair and public hearing. The heart of a fair and public hearing is that a person is given an opportunity to be heard. Generally, persons may have the opportunity to be heard on the basis that they are a party: or because they are a person directed by the Court to be served with the proceeding, even including those served on a Pickwick basis: or as a witness on behalf of other parties.
74. In this case the right to a fair hearing attaches to the ADLTC’s determination which determined the suli tama fafine o le suafa. Such a determination is undoubtedly the determination of a civil rights concerning the identity of the heirs of the title of Faamausili o le itu paepae o Taliitu.

Was the applicant and members of the Taliitu itu paepae given a fair and public hearing?

75. It is common ground that the applicant and his family were not parties nor were they present or represented at the 1998 LTC hearing or the appeal in the 1999 ADLTC hearing.

Notice of the ADLTC hearing

76. Notice of a LTC sitting is required to be published in the Savali at least 21 days ahead of the sitting (s.40 LTA). The form of these public notices is set out in the second schedule of the LTA. The ADLTC is the appeal division of the LTC, and accordingly the notice provisions apply equally to that Court.
77. The issue is whether public notification of the 1999 ADLTC hearing was sufficient notice of the hearing for Faamausili Tavita and his family? That is the accepted method of notification to members of the public. But the situation in this case is different.
78. At the time of the 1999 ADLTC hearing the LTC was still seised of the 1987 objection, which the appeal court knew had been adjourned and not yet determined. It is clear that the appeal proceedings should have been served on Faamausili Tavita and his family when the appeal court decided to determine the suli of the Faamausili Taliitu title.
79. A party is not to be regarded as having had a fair trial if it does not know that the list that it has brought to the Court is being determined in its absence.

Misa Tiki

80. The first and second respondents claim that a relative of the applicant – Misa Tiki, was one of the second petitioners in the 1998 proceeding in the LTC. (Mr Tiki was not a party at the 1999 ADLTC hearing.) Accordingly, they say, Faamausili Tavita and his family were represented at the Court and could have known about the Court proceedings through Misa Tiki. Mr Ainu’u submits that it does not matter that Mr Tiki appeared as a party in his capacity as a member of the Alii and Faipule group, but the fact that he was present is enough to demonstrate that Faamausili Tavita’s family knew or were capable of knowing the nature of the issues before the Court.
81. Learned counsel did not cite authority for imposing an obligation a party to give notice of litigation to a non party. Another difficulty is that there was no evidence to support an agency relationship between Faamausili Tavita, the sa’o of the family of Taliitu, and Misa Tiki, one of the members of the family of Taliitu. A third and perhaps insurmountable difficulty with Mr Ainu’u’s submission is that the particular issue to which the Article 9 rights attach was not decided until the 1999 ADLTC decision, and Mr Tiki was not a party to that proceeding.
82. I note that Misa Tiki did not share Faamausili Tavita’s objection about the rightful suli, as set out in Faamausili Tavita’s objection. A copy of a letter was produced which was apparently signed by Misa Tiki. It was addressed to the President of the LTC, and dated on or about 29 September 1998. The letter records Misa Tiki’s view that suli of Mr Toelupe were the true heirs of the tama fafine i le itu paepae o Taliitu; this view is the complete opposite of Faamausili Tavita’s grounds of objection. No more can be responsibly inferred from Misa Tiki’s letter than it appears to be an expression of his personal views.

Is there undue delay in the bringing of the proceedings?

First and Second Respondents

83. The first and second respondents submit that there has been an inordinate delay, so much so that to judicially review the decision now would be actually or presumptively prejudicial.
84. In Mr Ainuu’s revised submissions, filed on 2 September 2020, his strongest submission on this point is that Faamausili Galuvao failed to act of any number of opportunities available to him to challenge the 1999 ADLTC decision, or subsequent decision of the LTC in 2007, only filing his judicial review proceedings on 30 May 2016 some seventeen years, two months and eighteen days after the 1999 ADLTC decision.
85. Further, Mr Ainuu points to the occurrence of events, such as the deaths of Malietoa, Faamausili Tavita and Faamausili Toelupe, which would prejudice further assessment of the facts. Mr Ainuu says with the passing of these three key witnesses, crucial evidence has been lost and this would severely undermine a reconsideration of the 1999 ADLTC decision. However, it does not inexorably follow that the death of key witnesses means judicial review should therefore never be granted. A dispute is determined having regard to the relevant evidence that is available.
86. It is not open to this Court to determine how the loss of any evidence might affect the merits of the dispute – such as which lineage is correct and which is not. All that this Court can properly do is to say that a particular decision cannot stand because the process that was followed to arrive at that decision was not lawful in that it breached fundamental rights preserved by the Constitution.

Third Respondent

87. The third respondent did not appear to take issue with the delay in challenging the 1999 decision. The third respondent’s argument, set out in Mr Annandale’s revised submissions filed on 2 September 2020, advanced the position that Faamausili Galuvao misconstrued the issues which were dealt with by the LTC on 1998 and on appeal to the ADLTC in 1999. Mr Annadale submitted Faamausili Galuvao’s right to a fair trial arose in 2007 with respect to the LTC decision on the objection to the conferral of the Faamausili title on Paletuatoa Toelupe. Mr Annadale submits that Faamausili Galuvao could have appealed the 2007 LTC decision or made an application for judicial review, but he did neither.
88. Mr Annadale also points to Faamausili Galuvao’s participation at the 2016 LTC hearing which determined the descendants of the Faamausili title but he did not appeal the decision.

The principles which guide the Court in its exercise of its discretion concerning delay

89. There is no limitation to the hearing of judicial review applications, save where the Court determines it to be an abuse of its process. In this case there is a delay of over seventeen years. The first and second respondents rely on Ainuu v Lands and Titles Court [2011] WSS 36, where the learned Chief Justice Sapolu considered the delay concerning two LTC decisions delivered over twenty years and over nineteen years earlier. His Honour noted with approval the principles observed in Constitutional and Administrative Law in NZ (2001) 2^nd ed by PA Joseph. The most recent iteration of that excellent work is in its 5^th edition; the learned authors observe at 27.4.2(1) that:
    • “Delay in and of itself need not be fatal. There are policy grounds for distinguishing declaratory relief from other forms of relief, such as Baigent damages or the mandatory orders. The repercussions of defending do not apply to declarations (at least with the same force) as they do Baigent claims for the mandatory orders. It may remain appropriate to vindicate the claimant’s rights by way of declaration notwithstanding the delay. Nor should relief be refused where delay occasions no prejudice or loss to the respondent, or where there is mere delay without complicating factors.
90. Lord Woolf, Jeffrey Jowell, Catherine Donnelly and Ivan Hare De Smith’s Judicial Review^[2], discuss, the United Kingdom legislation regulating the refusal of remedies, which is in the following terms at 18-052:
    • “The Court may refuse to grant (a)....(b) any relief sought on the application if it considers that the grant of the relief sought would be likely to cause substantial hardship to, or substantial prejudice to the rights of, any person or would be detrimental to good administration”.

(Emphasis added)

The learned authors then go on to discuss at 18-053 ;

• “The courts have tended to avoid formulating any precise description of what constitutes detriment to good administration. This is because claims for judicial review arise in many different situations and the need for finality may be greater in one context than another. It has, however, been observed “there is an interest in good administration independently of hardship, or prejudice to the rights of third parties”. ... Courts should be unwilling to excuse a breach of the standards required by administrative law merely upon the ground that to quash a decision would cause the decision-maker administrative inconvenience: "even if chaos should result, still the law must be obeyed”

91. The last quote in the passage is a citation of Lord Denning from Bradbury v Enfield LBC^[3]
92. Whether there has been a delay which is undue or inordinate is a value judgment, which the Court approaches having regard to presumptive or actual prejudice, the nature of the remedies sought, and the context of the alleged breach.
93. I start my analysis in this case with the issue of prejudice.

Prejudice

94. Turning to the issue of prejudice and whether the granting of a application over seventeen years later would unduly prejudice the respondents or any third party.
95. The first and second respondents' rely on actual and presumptive prejudice as a result of the deaths of three main witnesses.
96. The third respondent provided the Court with 4 affidavits which were deposed by the third respondent, dated 22 July 2016: Fa’amausili Paletuatoa Toelupe, dated 16 October 2017: Lakisa Toelupe dated 12 April 2019 and Galumalemana Lakisa Toelupe dated 29 June 2020.
97. A review of these affidavits does not disclose any prejudice on account of delay. Rather, it appears that those in support of the third defendant and also of the applicant have exercised wisdom and dignity in their administration of the family affairs.
98. Fa’amausili Paletuatoa Toelupe spoke about the parties being cooperative with respect to repair work to a house built by Faamausili Galuvao’s family in Malie; he says in paragraph 6 with respect to how he has responded to an application made by Faamausili Galuvao for a stay:
    • “..., as the sa’o of our extended Faamausili family am ensuring that family matters are dealt with in accordance with out Samoan customs and traditions to ensure peace and harmony is maintained. (sic)”
99. It is the cultural context of this dispute which appears to me to undermine any notion of prejudice. The title of Faamausili has a history which spans multiple generations of leaders. Rather than prejudice, it is in each of the parties interests to ensure that those who hold the title do so in accordance with the law. It will of course be the third respondent’s case that they already hold the title in accordance with their own understanding and the rulings of the ADLTC in 1999 and the LTC in 2016, but, with respect, those rulings were made in breach of Faamausiili Galuvao and his families Constitutional rights to a fair trial.

What is the context of the breach?

100. I have discussed the Article 9 implications earlier.
101. It is noteworthy to record here that the context also includes the status of a judgment of the LTC – it is a judgment in rem. It follows a decision about a matai title is conclusive for all time. This factor strongly suggests that where LTC decisions have breached a fundamental right to a fair trial, that should be set aside.

CONCLUSIONS

102. The 1999 ADLTC decision breached the Constitutional rights of Faamausili Galuvao and his family. The breach occurred:
     1. when the appeal court determined the issue of suli without giving notice to Faamausili Tavita and his family in 1999. Notwithstanding Faamausili Tavita’s passing in 1997, the objection had been lodged with his aiga potopoto, and accordingly survives Faamausili Tavita’s death. There is no evidence that service of the proceedings was ever contemplated either at the 1998 LTC hearing or the 1999 hearing. Rather, the appeal court, despite the principles of fairness protected by the Constitution and the LTA itself, determined the issue of suli after hearing from only one side of the dispute.
     2. when in 2016 the LTC breached the right to a fair trial by failing to give Faamausili Galuvao a fair opportunity to be heard.
103. The 1999 ADLTC decision is quashed in its entirety.
104. The issue concerning suli may appear unconnected to the determination of which version of the 1934 Land Commission decision the Court was obliged to apply, however these two aspects of the decision (concerning the Land Commission decision, and the determination of the suli) may be but two different sides of what appears to be the main issue in the appeal - who had the pule of the title. If it was Malietoa, then the Samoan version of the decision applied, as decided in the 1998 LTC decision. However, if it was the itu paepae o Taliitu who had the pule, then the basis of the conferment on Faamausili Toelupe could only have been authorised if he had been selected by the suli. The determination of the suli is a matter to be determined by the LTC pursuant to the order set out below.
105. The LTC in its 2016 decision made a number of determinations concerning suli moni and suli faavae with respect to parties who have not been parties in this application for judicial review. The order I make does not affect the findings made about those parties except in the case where the LTC considers that the 1999 ADLTC decision about the determination of the third respondent as suli is incorrect. If such a finding was made, it would follow that downstream decisions, including the 2016 decision, might be affected. That though would not be as a consequence of this decision, but rather a consequence of the correct application of the right to a fair trial that is preserved by Article 9.

ORDERS

106. This Court orders the issue of whether Faamausili Galuvao and his family are suli o le suafa Faamausili o le itu paepae o Taliitu o Malie - the heirs of the title of Faamausili of the Taliitu branch of the village of Malie - be the subject of a hearing before the LTC. Judges and Assessors of that Honourable Court who have already been involved with the issues concerning suli should not sit on the panel of the Court.
107. Costs are awarded to the applicant and his family. The parties are to file their memoranda with the Court within 10 days of this judgment if they are unable to resolve the issue of costs between them.
108. Finally, I record my acknowledgment of the work of Counsel in this case, and the high quality of their submissions.

CHIEF JUSTICE

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^[1] [1967] 1 W.L.R. 1311 at 1324.
^[2] (8th ed, Sweet & Maxwell 2018)

^[3] [1967] 1 W.L.R. 1311 at 1324.