Hunkin v Land Titles Investigation Commission [2021] WSSC 57 (17 November 2021)

THE SUPREME COURT OF SAMOA
HUNKIN v LAND TITLES INVESTIGATION COMMISSION [2021] WSSC 57

Case name:	HUNKIN v LAND TITLES INVESTIGATION COMMISSION
Citation:	[2021] WSSC 57
Decision date:	17 November 2021
Parties:	HUNKIN and HUNKIN of both of Vaigaga, business persons (First Plaintiffs) and ANAE and LAVATAI, and ASI all matai of Vaigaga, Vaiusu and LAVATAI of Vaigaga, employed (Second Plaintiffs) v LAND TITLES INVESTIGATION COMMISSION constituted under section 4(1) of the Land Titles Investigation Act 1966 (First Defendant) ESTATE OF FRANK ROBERTS (Second Defendant)
Hearing date(s):	10 September 2021
Written Decision (s):	17 November 2021
File number(s):
Jurisdiction:	Civil
Place of delivery:	The Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Vaai
Order (s):	The two notices of motion filed by the first and second defendants to strike-out the statements of claim and motions for judicial review filed by the first and second plaintiffs are both dismissed. Each defendant to pay costs of $800 to each of the plaintiffs. This matter is to be listed in the civil mentions list of the 29th November 2021 to set a hearing date of the substantive hearing.
Representation:	S Ponifasio for the First and Second Plaintiffs J Pickering & F Sofe for the First Defendant C Vaai for the Second Defendant
Catchwords:	declaration – statement of claim – frivolous –freehold land – vexatious
Words and phrases:	notice of motion for judicial review
Legislation cited	Alienation of Customary Land Act Commission of Inquiry Act 1964 Land and Titles Investigation Act 1966, section 23 Land and Titles Investigation Act 1966
Cases cited:	Ashbridge Investments Ltd v Minister of Housing and Local Government [1965] 1 WLR 1320. Campbelltown City Council v Vegan & Ors [2006] NSWCA 284; [2006] 67 NSWLR 372. Fleming v The Queen [1998] 197 CLR 250. Keil v Land Board & Ors [2000] WSSC 41 (21 December 2000). Lewis v Wilson & Horton Ltd [2000] NZCA 175; (2000) 3 NZLR 546. Lloyd v McMahon [1987] UKHL 5; [1987] 1 All ER 1118 at 1161. R v Higher Education Funding Council, ex parte Institute of Dental Surgery [1993] EWHC Admin 5; [1994] 1 All ER 651. R v Secretary of State for the Home Department, ex parte Doody [1993] UKHL 8; [1993] 3 WLR 154.< v>R v Civil Service Appeal Board, ex parte Cunningham (1991) 4 All ER 310. Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1976] UKHL 6; [1977] AC 1014. Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279 Public Service Board of New South Wales v Osmond (1986) 159 CLR 656.
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

HUNKING & HUNKIN both of Vaigaga, business persons
First Plaintiffs

A N D

ANAE, LAVATAI, ASI all matai of Vaigaga, Vaiusu & LAVATAI of Vaigaga, employed.
Second Plaintiffs

AND
LAND TITLES INVESTIGATION COMMISSION constituted under section 4(1) of the Land Titles Investigation Act 1966
First Defendant

AND
ESTATE OF FRANK ROBERTS
Second Defendant

Counsel:
S Ponifasio for the First and Second Plaintiffs
J Pickering & F Sofe for the First Defendant
C Vaai for the Second Defendant

Written Decision: 17 November 2021

WRITTEN DECISION OF VAAI J

Introduction

1. These proceedings are in relation to a parcel of land situated at Vaigaga, near Apia, containing an area of about two and half acres shown as parcel 40 plan 2587 deposited in the office of the Chief Executive Officer of Lands Apia.
2. The status and ownership of the land (“disputed land”) was determined by the first respondent (“LTC”) by decision dated the 23^rd November 2018. The decision reads:

The Commission after hearing all of the evidence adduced in these proceedings and after perusing the written submissions filed by counsel and the first objector determines as follows:

1. That the above described land is freehold land.
2. That the above described land belongs to the estate of FRANK (FALANI) ROBERTS deceased, the father of the claimants.
3. That the objections by the above named objectors are disallowed.

Dated at Mulinuu this 23^rd day November 2018.

3. The first plaintiffs were third objectors in the LTC hearing. The second plaintiffs are the heirs and family members of the second objector who died before the LTC hearing. The second defendants was the applicant. There were two other objectors.
4. At the time the LTC determined the status and ownership of the disputed land, the first plaintiffs had secured a lease of the disputed land for a term of 30 years commencing on the 01^st April 2010 with a right of renewal for 30 years. The lease was negotiated and granted by the Minister of Natural Resources and Environment pursuant to and in compliance with the provisions of the Alienation of Customary Land Act, on the basis and belief that it is customary land pertaining to the title Ulugia represented by the second plaintiff.

Challenge by the plaintiffs

5. Both plaintiffs filed notices of motion (for judicial review), extra ordinary remedies and declarations together with statement of claim. The motions seek declaration that the LTC decision is contrary to Article 9 of the Constitution. They also seek to quash the LTC decision on the basis:

(i) The Chairman of the Commission was not independent nor impartial due to his wife’s close familial connection to the second defendants.

(ii) The Commission failed to provide any reasons and analysis for its decision.

(iii) Illegality and irrationality.

(iv) Procedural impropriety.

Application by the LTC to strike-out the notices of motion and statement of claim

6. In response to the plaintiffs statement of claim and notice of motion the LTC filed a notice of motion to strike-out the plaintiff’s claim. The LTC contends the plaintiffs pleadings in their entirety are frivolous, vexatious and an abuse of Court process and therefore has no prospect of success on the basis:

(i) Pursuant to section 23 Land and Titles Investigation Act 1966, the decision of the LTC is final.

(ii) The plaintiffs have failed to articulate that the LTC committed an error of law or jurisdictional error.

(iii) That the issue of bias of the Chairman was not raised before the LTC during the course of the hearing.

(iv) Allegations of illegality and irrationality are misconceived.

7. The second defendant likewise moved to strike-out on similar grounds that the plaintiffs motion and claim are frivolous, vexatious and abuse of process for the reasons:

(i) The issues of illegality and irrationality are not supported by any legal arguments or grounds capable of being argued.

(ii) They seek to relitigate evidence that have been determined.

(iii) They disrupt the second respondent’s free enjoyment of their property.

(iv) The Chairman did disclose his wife’s familial connection to the parties at the commencement of the hearing and all parties agreed for the hearing to continue.

The LTC

8. The LTC is established under the Land and Titles Investigation Act 1966 (“the Act”) which preamble states:

“AN ACT to authorise the setting up of a Commission to investigate and determine titles to certain lands, and claims thereto.”

9. Its functions pursuant to section 10 are:

(a) to advertise for claims as provided by section 15; and

(b) 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 or confirmed by a Crown Grant or a Court Grant; and

(c) to conduct each such inquiry as prescribed by this Act; and

(d) to dispose of each such claim in 1 or other of the ways permitted by this Act; and

(e) to recommend to Cabinet any amendments of the law which may be necessary to give effect to the determination of the Commission on any such claim.

10. The five members of the LTC provided for in section 4 consists of:

(i) The Chief Justice of the Supreme Court or his or her deputy as the Chairperson.

(ii) The Chief Executive Officer of the Ministry responsible for lands, or any other officer of the Ministry as deputy.

(iii) Three members (one of whom one shall be a Samoan judge) appointed by the Head of State acting on the advice of the Cabinet.

11. The procedure of the LTC is provided by section 8:

8. Procedure of Commission – (1) If the Chief Justice is absent from a sitting or other meeting of the Commission, the members present shall choose 1 of their number to be the Chairperson of that sitting or other meeting.

(2) At each sitting or other meeting of the Commission, the quorum necessary for the transaction of business shall be 4 members.

(3) A question before a sitting or other meeting of the Commission is to be determined by a majority of the valid votes of the members present recorded thereon:

PROVIDED THAT the Chairperson of each sitting or other meeting has a deliberative vote and in the case of an equality of votes has a casting vote.

(4) Subject to this Act and the Commissions of Inquiry Act 1964 and of any regulations made under this Act, the Commission may regulate its proceedings in such manner as it thinks fit.

12. In addition to the status and powers covered by the Act, the LTC has the same status and powers as a Commission appointed under the Commission of Inquiry Act 1964.
13. The determination and order of the Commission is final pursuant to section 23 of the Act.

Proceedings at the LTC hearing

14. The LTC hearing of the evidence occupied three days – the 14^th, 15^th and 16^th November 2018. Submissions were heard on 23^rd November and decision delivered immediately after the submissions.
15. The second defendant as claimant claimed that the disputed land was owned by a woman Sivaivai who in 1912 exchanged the disputed land with one Tuitama for a motor vehicle. Tuitama is a matai of Faleasiu village. Tuitama then gifted the land to his son Frank Roberts, the father of the claimants in 1942. Frank Roberts died in 1971.
16. The first objector (not a party to these proceedings) claimed that Frank Roberts gave them the land.
17. The second objectors are the second plaintiffs in these proceedings as noted in paragraph [3] above. They claim the disputed land is customary land pertaining to the matai title Ulugia of Vaiusu and Vaigaga. It was on that basis the disputed land was leased to the first plaintiffs after the requirements of the relevant legislation was satisfied and without objection from any of the parties.
18. The fourth objector claimed the disputed land is freehold and is part of the land bought by their ancestor William Cowley from Seiuli and Lava, both matai’s of Vaiusu and Vaigaga. William Cowley settled in Samoa in 1800.
19. The third objectors are the first plaintiffs. They live next door to the disputed land which has been vacant since they lived next door. They were interested in the disputed land for a business venture. As a result of their inquiries to the Ministry of Natural Resources and Environment who convinced them the land is customary, they eventually entered into a lease agreement referred to in paragraph [4] above.

The second defendants’ evidence before LTC

20. Since the LTC granted the claim by the second defendant without giving any reasons it is a reasonable assumption that the LTC accepted the contentions and arguments of the second defendant.
21. Evidence was by way of written statements and oral testimony. Rita Laufiso, the daughter of Frank Roberts testified. She was born in 1950 so that her evidence, like the other witnesses was principally hearsay. Her two older brothers did sign a written statement, which she repeated during testimony. That is her grandfather Tuitama exchanged his motor vehicle for the disputed land from Sivaivai, a woman. Tuitama in 1942 gifted the land to Frank Roberts, Rita’s father.
22. A statement made by Rita’s mother in 1974, witnessed by a solicitor Jackson was also produced to the LTC. The first two sentences of the statement reads:

“The Samoa customary land at Vaigaga Faleata and containing 3 ½ acres belongs to Sivaivai the mother of Maiava Meli – my father-in-law’s first cousin. This land was given to my parents-in-law by Maiava Meli in exchange for a motor car which was given to Maiava Meli and Maiava Meli instructed my father-in-law to keep the land for himself.”

23. Rita told the LTC she believed the disputed land to be freehold because the neighbouring lands are freehold.
24. Rita however was referred by the LTC to a Land and Titles Court file (pages 27-29 transcript of LTC proceedings) 1958, which recorded a hearing of a pule fa’amau claim by Tuitama over the disputed land. The purpose of the pule fa’amau claim was to enable Tuitama to exchange the disputed land with Joseph Soon’s freehold land. Sivaivai according to Tuitama’s testimony in the Land and Titles Court hearing was his adopted father (brother of his father) and there was no mention of the exchange of the disputed land with a motor vehicle.

Failure to give reasons

25. Counsel for the second defendant submitted that the LTC did provide reasons for its decision as directed by section 18 of the Act which states:

18. Investigation and determination of claims – (1) The Commission:

(a) may, after considering the written and oral evidence given and the submissions made by or on behalf of the claimant under an advertised claim, and the written and oral evidence given and the submissions made by or on behalf of each objector thereto who appears at the hearing, determine

(b) that the land is customary, freehold or public land

26. Counsel also submitted that the ruling is also consistent with prior decisions that were determined by the Commission. “The said decision is not distinguished from previous decisions whereby identical orders were granted and accepted by the parties.” It was however pointed out to counsel that since about 2006, as a consequence of criticisms from this Court, some LTC did issue reasons (albeit brief) for its decisions.
27. In Public Service Board of New South Wales v Osmond^[1], the High Court of Australia held that administrative decision makers are not subject to a common law duty to provide reasons for decisions but judicial decision matters are. Gibbs CJ described the duty to give reasons as “an incident of the judicial process.” He added that his statement was subject to the qualification that it is a normal but not universal incident.
28. Authorities have identified three key purposes served by the giving of reasons for judicial decisions.

(i) “Reasons enable the parties to see the extent to which their arguments have been understood and accepted as well as the basis of the judge’s decision.

(ii) The second concerns judicial accountability. The giving of reasons enables decisions to be scrutinized whether by appellate courts or the public.

(iii) Third is the common law method. Reasons allow people to ascertain the basis upon which like cases will probably be decided in the future.”^[2]

29. Although public authorities are not in general bound to give reasons for their decisions, the common law has always recognised that there might be circumstances where the public authority is bound to provide at least a short statement of reasons for decisions that it makes. In ex parte Institute of Dental Surgery^[3], Sedley J stated that there were two classes of cases where that duty might arise. The first is where the nature of the process itself called in fairness for reasons to be given: see R v Secretary of State for the Home Department, Ex parte Doody^[4]. The second is where there was something so peculiar to the decision which fairness called for reasons to be given: R v Civil Services Board, ex parte Cunningham.^[5]
30. In R v Civil Service Appeal Board, ex p Cunningham, the applicant sought compensation from the English Civil Service Board when he was unfairly dismissed from his post in the Prison Service. The Board granted compensation without giving reasons despite request to give reasons. His compensation would have been higher if he was able to go before the Industrial Tribunal. He applied for judicial review on the grounds that the award was irrational and that the Board’s refusal to give reasons was a breach of natural justice. The judge rejected the submission that the award was irrational but declared the decision of the Board and its refusal to give reasons to be unlawful. Both parties appealed.
31. Lord Donaldson in his leading judgment quoted from the classic passage of the speech of Lord Bridge in Lloyd v McMahon^[6]:

“My Lords, the so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates. In particular, it is well established that when a statute has conferred on any body the power to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness.”

He concluded dismissing the appeal by the Board “that fairness requires a tribunal such as the Board to give sufficient reasons for its decision to enable the parties to know the issues to which it addressed its mind that it acted lawfully.”

32. McCowan LJ observed that for justice to be seen to have done the Board should have given reasons. He was driven by several considerations to justify why the Board should give reasons. They are^[7]:

(i) “There is no appeal from the board’s determination of the amount of compensation.

(ii) In making that determination the board is carrying out a judicial function.

(iii) The board is susceptible to judicial review.

(iv) The procedure provided for by the code, that is to say the provision of a recommendation without reasons, is insufficient to achieve justice.

(v) There is no statute which requires the courts to tolerate that unfairness.

(vi) The giving of short reasons would not frustrate the apparent purpose of the code.

(vii) It is not a case where the giving of reasons would be harmful to the public interest.

33. The observations of McCowan LJ are in the courts view very relevant in the circumstances of the subject matter before the LTC. In particular, there is no right of appeal from the decision of the LTC. There is also documentary evidence to suggest significantly that Tuitama did view the disputed land in 1957 as customary land which legitimately demands the LTC to give why it declared it to bed freehold land.
34. Failure to give reasons as a cause of action and grounds for judicial review does have some merit.

Illegality

35. In Fleming v The Queen^[8] it was held that a failure to provide reasons where they are required is an error of law. This proposition was put to rest in Australia in Campbelltown City Council v Vegan & Ors^[9] which stated that it is settled law in Australia that a failure to comply with the duty to give reasons is an error of law.
36. Counsel for the LTC submitted that LTC made its decision in compliance with the requirements of the Act and its decision is therefore protected by section 23 of the Act which provides that the determination and order of the LTC is final.
37. It is common ground that if the LTC committed an error of law or jurisdictional error in reaching its decision, the decision is subject to judicial review regardless of the privative clause. See Keil v Land Board & Ors.^[10]
38. The Land and Titles Court in 1958 dealt with the disputed land pursuant to pule fa’amau claim by Tuitama who was supposedly given the land by the owner. Pule fa’amau claim can only be lodged against customary land and the Land and Titles Court only deals with customary lands – not public land or freehold land.
39. There is merit in this cause of action.

Irrationality

40. This ground of review was not actively pursued by the plaintiffs in their submissions on the basis that the absence of reasons made it difficult for the plaintiffs to address the issue.
41. The Court repeats what it said in paragraph 38 under the illegality ground. Tuitama in 1957 took his claim to the Land and Titles for the very obvious reason it was then not freehold land. He wanted to exchange the disputed land with the freehold land of Mr. Soon. The evidence in support of a claim lodged some 58 years after Tuitama’s pule fa’amau claim cannot be labelled as reliable and the decision likewise is suspect. Other than by Court Grant or the Land and Titles Investigation Act 1966, there was no other mechanism to convert customary land to be freehold land.
42. The simple test used throughout is whether the decision in question is one which a reasonable authority could reach.^[11] A decision is irrational if it lacks ostensible logic or comprehensible justification. Lord Denning in Ashbridge Investments Ltd v Minister of Housing and Local Government^[12] said at page 1326:

“The Court can interfere with the Minister’s decision if he has acted on no evidence or if he has come to a decision which on the evidence he could not come...”

43. There is also merit on this ground.

Bias

44. This ground was abandoned and struck out during submissions hearing.

Result

(i) The two notices of motion filed by the first and second defendants to strike-out the statements of claim and motions for judicial review filed by the first and second plaintiffs are both dismissed.

(ii) Each defendant to pay costs of $800 to each of the plaintiffs.

(iii) This matter is to be listed in the civil mentions list of the 29^th November 2021 to set a hearing date of the substantive hearing.

JUSTICE VAAI

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^[1] Public Service Board of New South Wales v Osmond (1986) 159 CLR 656.

^[2] McHugh JJA (as he then was) in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279. See also Lewis v Wilson & Horton Ltd [2000] NZCA 175; (2000) 3 NZLR 546.

^[3] R v Higher Education Funding Council, ex parte Institute of Dental Surgery [1993] EWHC Admin 5; [1994] 1 All ER 651.

^[4] R v Secretary of State for the Home Department, ex parte Doody [1993] UKHL 8; [1993] 3 WLR 154.

^[5] R v Civil Service Appeal Board, ex parte Cunningham (1991) 4 All ER 310.

^[6] Lloyd v McMahon [1987] UKHL 5; [1987] 1 All ER 1118 at 1161.

^[7] Supra at pp. 322-323.

^[8] Fleming v The Queen [1998] 197 CLR 250.

^[9] Campbelltown City Council v Vegan & Ors [2006] NSWCA 284; [2006] 67 NSWLR 372.

^[10] Keil v Land Board & Ors [2000] WSSC 41 (21 December 2000).

^[11] Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1976] UKHL 6; [1977] AC 1014.

^[12] Ashbridge Investments Ltd v Minister of Housing and Local Government [1965] 1 WLR 1320.