Pasia v Attorney General [2022] WSSC 52 (17 October 2022)

IN THE SUPREME COURT OF SAMOA
Pasia & Ors v Attorney General & Ors [2022] WSSC 52 (17 October 2022)

Case name:	Pasia & Ors v Attorney General & Ors
Citation:	[2022] WSSC 52
Decision date:	17 October 2022
Parties:	FAUSIA SUGALU PASIA on behalf of PASIA FAMILY, of Toamua and Vaitele (Plaintiffs) v ATTORNEY GENERAL sued for and on behalf of the MINISTRY OF NATURAL RESOURCES AND ENVIRONMENT (First Respondent) & ALE VENA ALE, ALE KAIO, ULU SHIN ETE, ULU BISMARCK CRAWLEY, ULU GUUTASI, LEAOAGIU SASA, ULU KINI, LEUO LEUO, SEIULI TAOA ENA, TANOA UNOI sued severally and jointly as representatives of the ALII AND FAIPULE OF TOAMUA (Second Respondents)
Hearing date(s):
File number(s):
Jurisdiction:	CIVIL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Niavā Mata K. Tuatagaloa
On appeal from:
Order:	I am conscious that a litigant’s constitutional right of access to the court is not to be lightly denied, unless his or her claim is so plainly untenable that it cannot possibly succeed and is doomed to fail. The Plaintiffs have been given compensation of $20,000 for relocation that they claim to be inadequate. This issue must be left to be determined in the substantive hearing of this matter.
Representation:	A. Faasau for the Plaintiffs J. Pickering for the First Respondent M. Leung Wai for the Second Respondents
Catchwords:	strike-out application – civil claim – customary land – land taken by Government – breach of statutory duty – breach of fiduciary duty – unjust enrichment – loss and damages – compensation - restitution.
Words and phrases:	“claim discloses no reasonable cause(s) of action” – “claim frivolous, vexatious and an abuse of process” – “claim has no prospects of success”.
Legislation cited:	Supreme Court (Civil Procedure) Rules 1980 , r. 70; Taking of Land Act 1964, ss. 24F; 25(1); 37(2)(b); 47A.
Cases cited:	Enosa v Samoa Observer Company Limited [2005] WSSC 6; Home Office v Dorset Yacht Club Inc [1970] UKHL 2; [1970] AC 1004; Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) CLR 41 (25 October 1984); Moors v Mortensen [2009] WSSC 103; Peter Meredith & Company Ltd v Drake Solicitors Nominee Company Ltd [2001] WSSC 32; South Pacific Manufacturing Company Ltd v NZ Security Consultants & Investigations [1992] 2 NZLR 282.
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

FAUSIA SUGALU PASIA on behalf of PASIA FAMILY, of Toamua and Vaitele.

Plaintiffs

A N D:

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

First Respondent

A N D:

ALE VENA ALE, ALE KAIO, ULU SHIN ETE, ULU BISMARCK CRAWLEY, ULU GUUTASI, LEAOAGIU SASA, ULU KINI, LEUO LEUO, SEIULI TAOA ENA, TANOA UNOI sued severally and jointly as representatives of the ALII AND FAIPULE OF TOAMUA.

Second Respondents

Counsel: A. Faasau for the Plaintiff
J. Pickering for the First Respondent
M. Leung Wai for the Second Respondents

Judgment: 17 October 2022

JUDGMENT OF TUATAGALOA J
(Application to Strike Out by the Second Respondents)

Proceedings

1. The Second Respondents filed an application to strike out the Plaintiffs claim. The First Respondent is not part of the application.
2. The Plaintiffs opposed the application.
3. The application was heard on 12^th August 2022. During the hearing of the application, the Court sought an in chambers with Counsels as to the likelihood of settlement between the parties. The parties were advised that in the event that there is no settlement the Court will then make a ruling on the application to strike out. The matter was then further adjourned to 2^nd September 2022 for parties to explore settlement.
4. On 2^nd September the parties advised that they could not reach a settlement. The Plaintiffs sought to file supplementary submissions which was granted by the Court with the right to respond in writing to the Second Respondents. The Court reserved its decision. This is the decision.

Background

5. The background to the claim is obtained from the pleadings and affidavits^[1] filed:
   • [5.1] The land whereby the Plaintiffs resided is customary land belonging to the Alii and Faipule of Toamua. This land is said to comprise of about 73a-2r-26.94p (less reserve areas belonging to the State)^[2] contained in the following Lots and valued as such:^[3]
   • Lot 1 Plan 11702 (2a-2r-18.97p) of 10,597 square meters - $189,627
   • Lot 4 Plan 11702 (40a-3r-39.96p) of 165,920 square meters - $873.048
   • Lot 8 Plan 11702 (14a-2r-10.78p) of 58,952 square meters - $402,389
   • Lot 9 Plan 11702 (1a-1r-38.0p) of 6,022 square meters - $121,363
   • Lot 10 Plan 11702 (6a-0r-32.26p) of 25,097 square meters - $253,427
   • Lot 11 Plan 11702 (7a-3r-6.87p) of 31,537square meters - $281,763
   • [5.2] This land was taken by Government pursuant to the Taking of Land Act 1964 (the Act) for public purpose specifically for water resource catchment and conservation. On behalf of Government the Ministry of Natural Resources and Environment (MNRE) and the Second Respondents duly signed three (3) Deeds of Settlement as follows:^[4]
   • Deed of Settlement dated 13^th June 2014 by which $300,000 was paid over as part of compensation; and
   • Deed of Settlement dated 12^th December 2018 noting compensation payments already paid of $800,000 by Government and including terms of settlement;
   • Deed of Settlement dated 1^st July 2019 noting payment of $165,400 to bring total amount already paid at $965,400.
6. The total compensation for the land taken is $2,380,800.00. There have been further payments made of $450,000 as of December 2019 and the amount remaining to be paid is $1,006,600. An injunction is placed on this amount until this matter is sorted.
7. The Plaintiffs do not dispute the taking of the land by the First Defendant (MNRE) pursuant to the Taking of Land Act 1964. The gist of the Plaintiffs Claim is compensation.

The Plaintiff’s Claim

8. The Plaintiff in its Amended Statement of Claim (“the Claim”) dated 8^th July 2020 relies on the following causes of action against the Second Respondents:
   • (a) Breach of Statutory duty;
   • (b) Breach of a Fiduciary duty;
   • (c) Unjust enrichment; and
   • (d) Loss and damages.

Application to Strike Out

9. The grounds of the application to strike out are:
   • (i) The Claim discloses no reasonable cause(s) of action;
   • (ii) The Claim is therefore frivolous, vexatious and an abuse and misuse of Court process; and
   • (iii) The Claim has no prospects of success.

Issue

10. It became clear during the course of the Application to Strike Out that the real issue at hand is compensation. The Plaintiffs have been given $20,000 by the Second Respondents as compensation for relocation. The Plaintiffs claim the $20,000 is not sufficient to cover expenses to relocate and settle elsewhere.

Strike out jurisdiction and approach to strike out application

11. The principles of strike out are well established.
12. There are two sources of the Court’s jurisdiction for striking out a statement of claim which discloses no cause of action that is tenable in law. They are (i) the Court’s inherent jurisdiction, and (ii) Rule 70 of the Supreme Court (Civil Procedure) Rules 1980. In either case, a ground for striking out is that the pleading discloses no arguable cause of action.
13. It has been the practice of the Court with applications to strike out for the Court to take into consideration the contents of all relevant documents in the proceedings and not just the pleadings.

The submissions of Second Respondents and Plaintiffs

(a) Breach of Statutory duty

14. The Plaintiffs claim that the Second Respondents owe a statutory duty to them under section 24F and section 37(2)(b) of the Taking of Land Act 1964 (the Act). Counsel for the Plaintiffs submits that Part 3 (including s37(2)(b)) prescribes the manner of compensation for land taken for public purposes, in particular is s25(1) relating to customary land which Counsel refers to the words, “Whereby any person whose interest is affected by the taking of the land is entitled to just and full compensation” to impose a statutory duty.
15. The purpose of the Act is to “provide for the taking of land for public purposes and for the payment of compensation therefor and for stopping roads”. The Act is administered by the Ministry of Natural Resources and Environment (MNRE). The Head of State on the advice of the Minister of MNRE may take land (freehold and customary) for public purposes (s7).
16. The provisions of the Act referred to by the Plaintiffs:
    • “24F. Compensation – In the exercise of the powers conferred by this Part, the Minister or his or her officers, workmen or others by his or her direction shall do as little damage as may be; and every person having any estate or interest in land entered upon for the purposes of this Part or injuriously affected thereby or suffering any damage from the exercise of any of the said powers shall be entitled to full compensation to be ascertained in the same manner as compensation for land taken under Part 3.”
    • Part 3 – Compensation
    • “25. Persons entitled to compensation, and for what payable.
    • A person having any estate or interest in any land taken under this Act for any public purpose, or injuriously affected thereby, or suffering any damage from the exercise of any powers given by this Act, is entitled to a full and just compensation for the same from the Minister.”
    • “(1A) Despite subsection (1), where it customary land which has been taken under this Act for any public purpose, or injuriously affected thereby, or suffering any damage from the exercise of any of the powers given by this Act, the Minister and the Court are entitled to proceed as if the matai who had the pule over the land at the relevant date is the only person so entitled to a full and just compensation from the Minister and to be paid that compensation.
    • “(2 No compensation shall be payable in respect of:
    • Any land taken for a road under this Act the right to make a road over which is otherwise reserved to Samoa, and has not lapsed or become barred; or
    • Any public land taken or set apart for any public purpose under this or any other Act.”
    • .....................
    • “37. Assessment of compensation
    • In determining the amount of compensation to be awarded, the Court shall act under the following rules:
    • (a)............,
    • (b) the value of the land shall, subject as hereinafter provided, be taken to be the amount, which the land if sold in the open market by a willing seller on the specified date might be expected to realize: PROVIDED THAT the provisions of this paragraph do not affect the assessment of compensation for any matter which is not directly based on the value of land and in respect of which a right to compensation is conferred under this or any other Act;
    • (c) – (e) ..................................”
17. The Second Respondents submit that sections 24F and section 37(2)(b) do not impose or create a statutory duty upon the Second Respondents. If there is no statutory duty there is no breach. Furthermore, the Second Respondents say they do not owe a statutory duty to the Plaintiffs for they are not a statutory body. The Second Respondents in their supplementary submissions^[5] say that the Plaintiff being a matai of the village of Toamua is part of the Alii and Faipule therefore cannot claim to owe himself a fiduciary duty.
18. Section 47A of the Act is very clear. It provides for the statutory duty upon MNRE where customary land is taken for public purposes within the meaning of the Act to duly compensate the owner or owners of the customary land taken.
    • “47A. Compensation in case of customary land – If the land taken, affected or suffering is customary land, and the person having partial or qualified interest therein and not entitled to sell or convey it is the matai who has the pule there over, the Minister shall cause the compensation to be paid to that matai, and his or her receipt shall be a complete discharge of the Minister therefor.” (my emphasis)
19. The customary land taken is registered under the Alii and Faipule of the village of Toamua. According to s47A any compensation is to be paid to the owners of the customary land. The Plaintiffs are not the owners.
20. The Second Respondents do not owe a statutory duty to the Plaintiffs nor do the First Respondents under the Act.

(b)Unjust enrichment

21. The only remedial response to a cause of action in unjust enrichment is one of restitution. The only legitimate objective of the principle of unjust enrichment is “the restoration of the benefits received by the defendant, not compensation of the plaintiff’s loss”^[6]. Restitution is thus effected through the Plaintiffs ownership of assets. The question is, what asset or assets are the Plaintiffs claiming to have been taken by the Second Respondents and have unjustly enriched themselves?
22. The land taken by MNRE is customary land belonging to the Second Respondents collectively. What the Plaintiffs are claiming is basically compensation for the loss of their crops and the costs of relocation of their homes including any cattle, pigs and poultry.
23. The Plaintiffs however, in both their Statement of Claim (dated 7^th July 2020) and First Amended Statement of Claim (dated 8^th July 2020) are claiming unjust enrichment against the First Respondent, MNRE and not against the Second Respondents.
24. Any claim by the Plaintiffs of unjust enrichment against the Second Respondents would be misplaced.

(c) Breach of fiduciary relationship

25. There are two issues involved. The first is, whether there exists a fiduciary relationship between the Plaintiffs and Second Respondents at the time. The second is if there was fiduciary relationship, did the Second Respondents breach that relationship?
26. The Second Respondents claim that there is no fiduciary relationship between the Second Respondents and the Plaintiffs. For a fiduciary to exist as defined in Moors v Mortensen “...someone who undertakes or agrees or acts for or on behalf of or in the interests of another person in the exercise of a power or discretion which will affect the interests of that other person in a practical or legal sense.”^[7]
27. The Second Respondents say that if there is fiduciary relationship it would be between the Second Respondents and the chief matai (Sa’o) of the Plaintiffs family who represented their extended family (including the Plaintiffs) in village meetings with the Second Respondents. Ale Vena Ale who is the village chief said that arrangements were made with the Sa’o of the Plaintiffs family relating to compensation for the relocation of the Plaintiffs family^[8].
28. The Plaintiffs claim that there exists a fiduciary relationship between the Second Respondents as custodians of the land and those like himself who lived and worked the land belonging to the Second Respondents. They said that the Second Respondents have breached this fiduciary relationship by failing to secure or obtain a purchase price which takes in the value of the Plaintiffs property. The property they refer to cannot be the land as the land is customary that belonged to the Second Respondents, the Alii and Faipule of Toamua.
29. The Plaintiffs claim that the relationship context between a land holding matai and family member or villager who occupies and/or uses the land belonging to the matai is one of trustee and beneficiary. They submitted that the Court may find a fiduciary relationship that is not within one of the recognized categories but is manifested through the circumstances of the case. The Plaintiffs refer to Hospital Products Ltd v United States Surgical Corporation^[9] where the Court can independently find a fiduciary relationship and duty to arise in the circumstances of a case:
    • “The archetype of a fiduciary is of course the trustee, but it is recognized by the decisions of the courts that there are other classes of persons who normally stand in a fiduciary relationship to one another e.g., partners, principal and agent, director and company, master and servant, solicitor and client, tenant for life and remainderman. There is no reason to suppose that these categories are closed. However, the difficulty is to suggest a test by which it may be determined whether a relationship, not within one of the accepted categories, is a fiduciary one.” (Emphasis of the Plaintiff)
30. The land taken is customary belonging to the Second Respondents. The Plaintiffs claim that their family have occupied and used the land on authority or permission of the Alii and Faipule of Toamua. In the present circumstances, the Plaintiffs say there is or should exist a fiduciary relationship of trustee and beneficiary between the Second Respondents and them.
31. The Second Respondents represent the whole village of Toamua. The land taken does not belong to one matai but to the whole village of Toamua. If customary land belongs to a specific matai title then whoever the Sa’o or chief of that family holds the land as trustee for his family. In this case, the Second Respondents hold the land for the benefit of the whole village. Any villager who may need to use or occupy the land must first seek permission from the Second Respondents. The Plaintiffs from their pleadings were the only occupiers of the land taken.
32. There is usually no lease agreement where a villager is allowed to occupy and use customary land by the Alii and Faipule of a village. That does not mean that the villager (or villagers) can do whatever he or she wants with the land. The villager allowed on the land must always seek permission of the Alii and Faipule where they want to use more acreage than what they were allowed or when they want to build more houses. The villager is also not allowed to have any other of their family to live on the land without first seeking permission of the Alii and Faipule.
33. A fiduciary relationship involves a duty of care. Act and omission both give rise to duty.^[10] The Second Respondents owe the Plaintiffs a duty of care when they allowed the Plaintiffs to occupy and use customary land belonging to them. Cooke P on the duty of care in South Pacific Manufacturing Company Ltd v NZ Security Consultants & Investigations^[11]:
    • “A broad two stage approach or any other approach is only a frame work, a more or less methodical way of tackling a problem. How it is formulated should not be a matter in the end. Ultimately the exercise can only be a balancing one and the important object is that all relevant factors be weighed. There is no escape from the truth that, whatever formulae be used the outcome in a grey area case has to be determined by judicial judgment. Formulae can help to organize thinking but they cannot provide answers.” (my emphasis)
34. The case law acknowledges that fiduciary relationships are not exhausted or set in stone. The circumstances of the present case raise a fiduciary relationship between the Second Respondents and the Plaintiffs that may not be within the recognized categories of fiduciary relationships.
35. Have the Second Respondents breached this fiduciary relationship? Here, once the land was compulsorily taken by the First Respondent, the Second Respondents who allowed the Plaintiffs to occupy and use the land for 50+ years is required and has a duty to make sure that the Plaintiffs is adequately compensated. In this case, the Plaintiffs seek compensation for relocation. The Plaintiffs themselves must remember that they have been living and making a living off the land rent free for the 50+ years. The Plaintiffs must also remember that they knew right from the beginning the land was customary and that they will at any time had to move should the Second Respondents want to use the land for something else. In other words, the Plaintiffs are or should be aware that land was not theirs albeit they lived on it for 50+ years.
36. I am conscious that a litigant’s constitutional right of access to the court is not to be lightly denied, unless his or her claim is so plainly untenable that it cannot possibly succeed and is doomed to fail.^[13] The Plaintiffs have been given compensation of $20,000 for relocation that they claim to be inadequate. This issue must be left to be determined in the substantive hearing of this matter.

JUSTICE TUATAGALOA

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^[1] See Affidavit of Manumaleuga Filisita Heather undated July 2020.
^[2] Supra at paragraph 7.
^[3] Valuation Report dated 16 April 2018.
^[4] Affidavit of Manumaleuga Filisita at paragraphs 9 – 13.
^[5] Supplementary Submissions of the Second Respondents dated 9 September 2022.
^[6] ‘Civil Remedies in New Zealand’, Brookers Ltd 2003, p.371.
^[7] Moors v Mortensen [2009] WSSC 103 (30 October 2009); Peter Meredith & Company Ltd v Drake Solicitors Nominee Company Ltd [2001] WSSC 32 (10 December 2001).
^[8] See Affidavit in Support of Ale Vena Ale dated 23^rd June 2021, paragraphs [5] & [6].
^[9] Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) CLR 41 (25 October 1984).
^[10] Home Office v Dorset Yacht Club Inc [1970] UKHL 2; [1970] AC 1004.
^[11] South Pacific Manufacturing Company Ltd v NZ Security Consultants & Investigations¹² [1992] 2 NZLR 282.
^[13] Enosa v Samoa Observer Company Limited [2005] WSSC 6, per CJ Sapolu at p.5