Tu'isila v Attorney General [2023] WSSC 23 (3 May 2023)

IN THE SUPREME COURT OF SAMOA
Tu’isila v Attorney General & Anor [2023] WSSC 23 (03 May 2023)

Case name:	Tu’isila v Attorney General & Anor
Citation:	[2023] WSSC 23
Decision date:	03 May 2023
Parties:	TU’ISILA MALUAFITI FAGASOIA TU’ISILA (Applicant) v ATTORNEY GENERAL, for and on behalf of Government of the Independent State of Samoa (First Respondent) & THE PUBLIC TRUSTEE, as Executor of the estate of SALAEVALU TU’ISILA ULBERG (Second Respondent).
Hearing date(s):
File number(s):	MISC 118/18
Jurisdiction:	CIVIL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Senior Justice Vui Clarence Nelson
On appeal from:
Order:
Representation:	Dr Harrison and R. Drake for plaintiff/applicant D. Fong and S. Fuimaono for first defendant/respondent M. Leung Wai and L. Sio-Ofoia for second defendant/respondent
Catchwords:	Land issue – customary land – freehold land – land ownership - motion to recuse.
Words and phrases:	“determination of legal status of land” – “registration of freehold land unlawful” – “appropriate jurisdiction (Court) to determine legal status of land”.
Legislation cited:	Berlin Act 1889; Constitution of the Independent State of Samoa 1960, Articles, 70(1); 70(2); 101; Land and Titles Act 1981, ss. 9; 9(6); Land Titles Investigation Commission, ss. 10(b); 15; 18; Land Titles Investigation Act 1996, ss. 15; 18; 18(1)(f); Supreme Court Civil Procedure Rules, rules. 67; 206.
Cases cited:	Aitu v Faireka [2011] CKCA 1; Apia Construction & Engineering Ltd v National Provident Fund [2017] WSCA 6; Canterbury Regional Council v Independent Fisheries Ltd & Ors [2013] 2 NZRL 57; Craig v Banks [2012] WSSC 49; Cropp v Judicial Committee [2008] NZSC 46; [2008] 3 NZLR 774; Electoral Commissioner v FAST [2021] WSCA 4; Ifi v Attorney General [2021] WSCA 9; Lands and Titles Court v Fanolua [2020] WSCA 6; Land and Titles Court v Lautogia [2018] WSCA 4; Leleua v Land and Titles Court [2009] WSSC 123; Mama v Faamasunu [1997] WSSC 24; Muir v Commissioner of Inland Revenue [2007] NZCA 334; Peniamina v Land and Titles Court [2004] WSCA 1; Pouniu v Land Titles Investigation Commission [2003] WSSC 5; President of Land and Titles Court v Attorney General [2022] WSSC 8; Pyx Granite Co. Ltd v Ministry of Housing [1960] AC 260, 286 (HL); Saxmere Co Ltd & Ors v Wool Board Disestablishment [2009] NZSC 72;
	Sia’aga v OF Nelson Properties Ltd [2008] WSCA 15.
Summary of decision:

MISC 118/18

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

TU’ISILA MALUAFITI FAGASOIA TU’ISILA, of Auckland New Zealand

Applicant

AND:

ATTORNEY GENERAL, for and on behalf of Government of the Independent State of Samoa

First Respondent

AND:

THE PUBLIC TRUSTEE, as Executor of the estate of SALAEVALU TU’ISILA ULBERG.

Second Respondent

Counsel: Dr Harrison and R. Drake for plaintiff/applicant
D. Fong and S. Fuimaono for first defendant/respondent
M. Leung Wai and L. Sio-Ofoia for second defendant/respondent

Reasons: 03 May 2023

REASONS FOR RULINGS OF NELSON J
(Recusal and Motions to Strike Out)

1. By Motion and Statement of Claim dated 05 April 2019 the Applicant seeks a declaration that Namu’a Island situated off the coast of Aleipata in Upolu (“Namu’a”) is customary land belonging to the title Tu’isila of Mutiatele, Aleipata. He also seeks declarations that the registration of Namu’a as freehold land vested in the Government of Samoa was unlawful and that all past and present leases of Namu’a to the original Second Respondent and others are void and of no effect.
2. In response the Second Respondent filed a Motion to Strike Out the Claim arguing that the Supreme Court has no jurisdiction and the Applicants claims should be referred to the Land Titles Investigation Commission (“LTIC”) pursuant to sections 15 & 18 of the Land Titles Investigation Act 1966 (“LTIA”) to determine the proper legal status of Namu’a. If it be determined to be freehold land then the Supreme Court is the appropriate forum. But if it is customary land, the court of appropriate jurisdiction to decide ownership would be the Land and Titles Court.
3. In a similar vein, the First Respondent but without joining the Second Respondents Motion submits that a real doubt having been raised as to the proper status of Namu’a, the matter should be referred to the specialist LTIC for determination. It then goes on to seek an order striking out the Amended Motion and Statement of Claim in its entirety. This is in reality an application to strike out in a different guise and I have elected to treat it as such.
4. A further preliminary issue raised by the First Respondent was a Motion for me to recuse myself from presiding after I disclosed a possible relationship to the Applicant. I will deal with this preliminary issue first.

Motion to recuse

5. As I felt duty bound to do so, I disclosed at a very early stage a potential relationship to the Applicants family as one of my nieces is married to a Masunu Tu’isila (“MT”) of Wellington, New Zealand. I also clarified however that I am not familiar with the extended Tu’isila family and have no knowledge of the exact relationship between the Applicant and MT. I also do not know or have knowledge of the Applicant or his immediate kin. It was also alleged MT is related to the original Second Respondent being cousins with her father.
6. The First Respondent maintains that this amounts to “a real and close familial connection” giving rise to a real danger of bias or a reasonable apprehension of bias disqualifying me from presiding in the matter. The Applicant disagrees and for his part disavows any knowledge of or relationship to MT. The Second Respondent says there is insufficient evidence before the court to make a proper analysis of a purported relationship but in any event have no objection to my presiding. Uncontested affidavits in support of the respective submissions were filed by the First Respondent and the Applicant. As agreed among counsel, the Motion was dealt with on the papers.
7. It is common ground that the relevant principles are those espoused by the Court of Appeal in cases such as Land and Titles Court v Lautogia [2018] WSCA 4 where at paragraph 15 it said:

“a judge is disqualified “if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”; the question is one of possibility (“real and not remote”), not probability.

Importantly the court must examine the matter in two steps:

(a) first, the identification of what it is said might lead a judge to decide a case other than on its legal and factual merits; and

(b) Secondly, there must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.”

8. And in Apia Construction & Engineering Ltd v National Provident Fund [2017] WSCA 6 where the Court phrased it thus:
   • “Bias is a predisposition to decide for or against one party, without proper regard to the true merits of the dispute. Actual or apparent bias is enough. It is sufficient if an objective and fully informed observer would have had a reasonable apprehension of bias.”
9. Citing with approval the New Zealand Court of Appeal decision in Muir v Commissioner of Inland Revenue [2007] NZCA 334 where at paragraph 62 the court finally put the conflicting authorities to rest and said:
   • “In our view, the correct enquiry is a two stage one. First, it is necessary to establish the actual circumstances which have a direct bearing on a suggestion that the judge was or may be seen to be biased. This factual inquiry should be rigorous, in the sense that complainants cannot lightly throw the “bias” ball in the air. The second inquiry is to then ask whether those circumstances as established might lead a fair-minded lay-observer to reasonably apprehend that the judge might not bring an impartial mind to the resolution of the instance case. This standard emphasizes to the challenged judge that a belief in her own purity will not do; she must consider how others would view her conduct.”
10. It is important to remind what was stated in decisions such as Leleua v Land and Titles Court [2009] WSSC 123:

“Judges have a duty to sit on the cases allocated to them. A duty that is sometimes not often well understood in this country by for example those in the customary land court where these proceedings originated. This duty should be carried out unless there is good reason not to. As stated in Saxmere Co Ltd & Ors v Wool Board Disestablishment [2009] NZSC 72:

“Judges should not automatically disqualify themselves in response to litigants suggestions that there is an appearance of lack of impartiality. Judges allocated to sit in a case have a duty to do so unless they are disqualified. If a practice were to emerge of judges disqualifying themselves without having good reason, litigants may be encouraged to raise objections which are based solely on their desire to have their case determined by a different judge who they think is more likely to decide in their favour. Such a development would soon raise legitimate questions concerning breach of the rights of parties and would not be conducive to the ends of and administration of justice.’"

11. And the caution expressed by the Court of Appeal in Peniamina v Land and Titles Court [2004] WSCA 1:
    • “The view .... that it is for the litigant to decide whether the tribunal or court he or she appears before is the fair and impartial tribunal or court to which all are entitled is wrong and unworkable.”
12. As emphasised in Craig v Banks [2012] WSSC 49:

“It is not a matter left to litigants. If it were, in a small jurisdiction like ours there would forever be objections and cases would never get heard. The standard to be applied when perception of bias is argued is the objective standard of the reasonable observer fully conversant with all relevant circumstances. If in the eyes of such an observer there was a real danger of bias the judicial officer concerned must step down. But the danger must be “a real danger.” Not an imagined, fanciful or speculative one. There must be reasons justifying the holding of such a belief. In the language of Saxmere:

“It is not enough that the circumstances create a vague sense of disquiet.” And the onus is on the person who claims bias “firmly to establish that is the case.”

13. As noted by the court in Lautogia:

“Mr Ainuu drew our attention to decisions of the Supreme Court which underlined the importance of examining the precise nature of familial and other connections. In Siaso v Appellant of Land and Titles Court [2014] WSSC 26 Vaai J warned against finding risk in connections and associations that cannot be labelled as ‘close, regular or discomforting’ (at [40]). Nelson J himself in Leleua v Land and Titles Court [2009] WSSC 26 observed that Samoa is a country where everyone is related to each other in one way or another. It is the nature of the connection not the mere fact of it that is important. These are the realities that prompted Cooke P to observe in Stehlin v Police [1993] WSCA 5 that the doctrine of disqualification for alleged bias has to be applied somewhat robustly in Samoa.”

14. A recent application of these principles can be found in Electoral Commissioner v FAST [2021] WSCA 4.
15. In applying the two-step process, regard must first be had to an examination of the circumstances alleged to give rise to a reasonable apprehension of bias. The first Respondent bases its objection on the fact that MT is part of the extended Tu’isila family who would benefit from a judicial finding in their favour. However the Applicant himself deposes in an unchallenged affidavit that he is the sa’o or paramount holder of the Tu’isila title and “despite this special level of knowledge”, he has never heard of MT; and in paragraph 10 of his affidavit dated 09 April 2021 says “I therefore do not believe that this “Masunu” (if he exists) is related to the Tu’isila family”. He further deposes:
    • “15. That before “Masunu” or his children could be considered Tu’isila and therefore attain any interest in Namu’a, they would first need to be able to prove through blood or marriage that they were indeed Tu’isila and then demonstrate that they were deserving of inclusion. They would need to participate in family affairs and support the family.
    • 17. That neither “Masunu” nor his children have ever lived in the village or shown any intention to be part of the Tu’isila family, let alone have a history of support and service of any kind. Therefore, even if this “Masunu” exists and he is indeed a Tu’isila, it is highly unlikely that either he or his children will ever:
    • (a) be heir/suli to the Matai title Tu’isila; or
    • (b) attain an interest in Namu’a.”
16. In addition, he has “conducted enquiries with other senior members of the Tu’isila family including my mother. These enquiries have all led to the same result; there is no known family connection between the Tu’isila family and that of Judge Nelson”: paragraph 8 of his affidavit. He also rejects the hearsay evidence from the husband of the original Second Respondent that MT is directly related to the now deceased Second Respondent.
17. The end result is that there is no basis or evidentiary foundation before the court upon which to infer or impute a relationship between the Applicant or his family and MT and by extension between the Applicant and myself that might lead me to decide this case other than on its legal and factual merits. Ipso facto there is accordingly no logical connection between the matter at hand and my niece being married to MT. Put another way, there is no basis upon which a fair-minded lay observer cognisant of all the material facts may reasonably apprehend that the trial judge might not bring an impartial mind to his task.
18. For these reasons I dismissed the First Respondents Motion for recusal.

Strike out motions

19. At the outset, counsel for the Applicant strongly objected to the Second Respondents Motion on two grounds: firstly that the original Second Respondent Salaevalu Tu’isila Ulberg supported the Applicants claims and only when the Public Trustee assumed administration of her Estate did the position change. It was also noted that at this point, the Second Respondent has still not formally tendered evidence of his appointment as Executor of the original Second Respondents Estate.
20. The second ground of objection is the inexcusable delay in raising an objection to the courts jurisdiction two years having elapsed since March 2019 when the original Second Respondent was joined to the proceedings. Counsel argues this by itself constitutes an abuse of the process of the court.
21. As to the first issue, obviously there has been a change in the position of the Second Respondent. But the court can only deal with what it has before it and that is the Second Respondent as a party. Subject to the important rider that there must be produced as a matter of urgency evidence that the Second Respondent properly represents the Estate of Salaevalu Tu’isila Ulberg.
22. As to the second ground, this seems to be an issue more relevant to costs and given that both Motions have been dismissed by the court, albeit on other grounds, I do not propose to delve further into the matter.
23. As to the applicable law, the parties seem in agreement that the principles governing strike out applications have been established by numerous decisions of the court as recently summarised by the Court of Appeal in Lands and Titles Court v Fanolua [2020] WSCA 6:
    • “The principles on which a Court decides an application to strike out on the ground that the plaintiff’s pleading fails to disclose a tenable cause of action have been applied many times, both in Samoa and elsewhere. They may be summarised as follows:
    • (a) Pursuant to both R 70 of the Supreme Court (Civil Procedure) Rules 1980, and its inherent jurisdiction, the Supreme Court can strike out a pleading where no tenable cause of action is disclosed. For this purpose the grounds set out in an originating notice of motion for judicial review are to be treated as the pleading.
    • (b) The pleading should be struck out if the Court is satisfied that, even on the most favourable interpretation of the facts pleaded or available, the plaintiff could not succeed in law.
    • (c) For this purpose the facts asserted in the pleading may be supplemented by affidavit evidence from either side only if it is incontrovertible. The Court will not attempt to resolve genuinely disputed issues of fact or consider evidence inconsistent with the pleading.
    • (d) The jurisdiction to strike out is to be exercised sparingly, and only in clear cases where the Court is satisfied that it has both the material and the assistance from the parties required for a definite conclusion. A claim should be struck out only if it is so clearly untenable that it could not possibly succeed.
    • (e) The jurisdiction to strike out should not be exercised if the pleading could be sustained by appropriate amendment or if there remains the realistic possibility that at trial evidence could emerge to rectify a seeming gap or flaw in the plaintiff’s case.
    • (f) However, where the claim depends on a question of law capable of decision on the material before it, the Court should not shrink from determining the question even if extensive argument may be required.”

Discussion

24. With respect to counsel, the strike out applications are misconceived. They rest on the premise that the Supreme Court has jurisdiction to deal with questions involving title status and ownership of freehold land but where there is some or a serious doubt about the legal status, as in this case, the matter must be referred to the specialist jurisdiction of the LTIC to determine if in fact Namu’a is freehold or as asserted by the Applicants, customary land. The Second Respondent tacitly acknowledges this in paragraph 3 of its submissions.
25. The First Respondent along the same vein argues the matter falls within the purview and exclusive jurisdiction of the LTIC and the Claim should be struck out and the Applicant directed to make his case to the LTIC pursuant to section 15 of the LTIA which provides:
    • “15. Notice of claims – A person desiring to make a claim to the Commission to individual ownership of or property in any land in Samoa other than land undoubtedly held by him or her as individual property for an estate in fee simple created or confirmed by a Court Grant or a Crown Grant, may give notice in writing of his or her claim to the Secretary.”
26. Only that body can determine whether Namu’a is customary, freehold or public land pursuant to section 18(1)(f) of the LTIA which provides:
    • “Investigation and determination of claims – (1) The Commission:
    • (f) 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—
    • (i) that the land is customary, freehold or public land; and
    • (ii) that the claim has not been established to the satisfaction of the Commission and is therefore rejected; or
    • (iii) that the claimant shall have a grant of the estate or interest claimed by him or her in the land where the Commission determines that the land is freehold land in law or in equity, and that the claim has been established to the satisfaction of the Commission; or
    • (iv) that, despite anything to the contrary in the Lands, Surveys and Environment Act 1989, the claimant shall have a grant of the estate or interest claimed by him or her in the land where the Commission determines that the land is public land in law, but that the claim has been established to the satisfaction of the Commission in equity; and
    • (v) that the title to be issued to the claimant shall be limited as to parcels, or as to title, or as to both.”
27. Both Respondents rely significantly on decisions such as Pouniu v Land Titles Investigation Commission [2003] WSSC 5 and Mama v Faamasunu [1997] WSSC 24 where Chief Justice Sapolu relevantly stated:
    • “The question then, is which forum has jurisdiction to hear and determine this case. In my view, to determine which is the proper forum to hear and determine this case requires that the status of the land must first be determined. It is the status of the land that will determine whether this Court or the Land and Titles Court is the proper forum.
    • However that question raises the further question of whether this Court has jurisdiction to determine the status of the land or not. I will deal with that question now.
    • The Land Titles Investigation Act 1966 sets up a commission to hear a claim to individual ownership of land where there is doubt as to whether the land is held for an estate in fee simple. Section 15 of that Act provides:
    • "Any person desiring to make a claim to the Commission to individual ownership of or property in any land in Samoa other than land undoubtedly held by him as individual property for an estate in fee simple created or confirmed by a Court Grant or a Crown Grant, may give notice in writing of his claim to the Secretary."
    • Section 18 of the Act then provides that the Commission in considering a claim may determine whether the land is customary, freehold or public land. So the Commission under the Land Titles Investigation Act 1966 has jurisdiction to make a determination as to the status of a land which is the subject of a claim made under section 15. However it appears to me that section 15 would only apply where there is doubt as to the status of a land and someone is claiming individual ownership of that land. Section 15 does not apply where the land is undoubtedly held as individual property for an estate in fee simple created or confirmed by a Court Grant or Crown Grant.
    • As I have said before, section 15 of the Land Titles Investigation Act 1966 and section 9(6) of the Land and Titles Act 1981 apply only in cases of doubt as to the status of land. Such doubt must be real and genuine. I hold that this Court has inherent jurisdiction to decide whether there is a real case of doubt as to the status of the disputed land in order to bring the provisions of the Land and Titles Act 1981 and the Land Titles Investigation Act 1966 into operation. To put it in other words, I hold that this Court has jurisdiction to determine whether those legislations apply to the facts of this case.”
28. And more recently the Court of Appeal in Ifi v Attorney General [2021] WSCA 9 in approving a similar approach by the trial judge:
    • “Tuatagaloa J addressed three issues, the last of which was a matter she herself had raised with counsel:

1. Was there an error in the Land Register under the Land Titles Registration Act 2008 that could be corrected by the Registrar?

2. Was there doubt as to the status of the land so that it fell within the Land Commission’s jurisdiction? and;

3. Did the applicant (now appellant) have legal standing to bring these proceedings?

The Judge prefaced her discussion of these three issues with the following statement, with which we respectfully concur:

• “[20] It has been settled that the Supreme Court has inherent jurisdiction to determine the status of land. Once the status of the land is determined the Court will then be able to make a decision as to the forum that would best deal with the land according to law. If customary it will be the jurisdiction of Land and Titles Court, or if freehold it will be the jurisdiction of the Supreme Court; but where there is ‘doubt’ as to the status of the land the matter will be referred to the Land Commission”.

On the question of a doubt about the status of the land, which needed to be a real and genuine doubt, as Sapolu CJ had said in Mama v Faamasunu was required, the Judge expressed agreement with the view of the Registrar that the status of the land as customary was being challenged which placed that status in doubt. Hence it fell under the Land Commission for it to investigate the claim and determine the true status.”

29. There are two fundamental difficulties with the Respondents arguments: first and foremost the words of the statute are plain enough, viz that recourse to the LTIC is reserved only for cases where the land in question is “other than land undoubtedly held by any ‘person’ (section 10(b))/ ‘him or her’ (section 15) as individual property for an estate in fee simple created or confirmed by a Court grant or a Crown grant”. A fact recognised by Sapolu, CJ in Mama:
    • “However it appears to me that section 15 would only apply where there is doubt as to the status of a land and someone is claiming individual ownership of that land. Section 15 does not apply where the land is undoubtedly held as individual property for an estate in fee simple created or confirmed by a Court Grant or Crown Grant.”
30. In this case the undisputed facts as pleaded in the Plaintiffs Statement of Claim are that the original mortgagee Peter Laban successfully lodged a claim over Namu’a Island in 1894 with the Samoa Land Commission and the Samoa Supreme Court, a procedure established by the 1889 Berlin Act during the period of pre-World War I German colonial governance. Despite objection by the Applicants predecessors in title, Laban was granted ownership over Namu’a in 1895 by Court Grant 167. As noted in Ifi:
    • “The procedure for obtaining the European form of absolute ownership pursuant to a Court Grant and registration on the Grundbuch (land register) under the German Administration was that a person seeking such ownership would make a claim to the Land Commission established by the Final Act of the Conference on the Affairs of Samoa signed at Berlin 1889 and known as the Berlin Act. That Land Commission was to investigate land claims, and if it found a claim proved, would decide accordingly. A Court Grant would then be issued by the Supreme Court also established by the Berlin Act and the freehold owner would be registered in the Grundbuch.”
31. There were subsequent dealings in respect of the island by the Laban family resulting in it being acquired by the German company DH & PG and post-WWI, by the Crown eventually vesting upon Independence in the Government of Samoa who leased it to the Ulberg family and the original Second Respondent. There is nothing in this chain of events to indicate there existed or exists any doubt as to the status of the land or the title of the Second Respondent. True, these transactions are all now under attack by the Plaintiff the essence of the Plaintiffs case being to question the validity of the original acquisition of title by Peter Laban which he says was illegal and unlawful thereby voiding all subsequent dealings involving the island. But this challenge has yet to be determined and until upheld has no bearing on the status quo and current legal standing of Namu’a.
32. As observed by Sapolu in Mama, any doubt “must be real and genuine”, there must be “a real case of doubt as to the status of the disputed land in order to bring the provision of the Land and Titles Act 1981 (now repealed) and the LTIA into operation.” The mere launching of a challenge to the validity of a title acquired over 100 years ago under a Court Grant would not be sufficient in my view to raise doubt as to the status of a registered freehold title. An attempt to invoke the jurisdiction of the LTIC could easily be met by the answer that Namu’a has been validly declared “public land” vested in the Government of Samoa and until that changes, there is no reason to doubt the validity of the Governments title. Making the statute inapplicable and unavailable to the Plaintiff/Applicant.
33. It is also highly unlikely Parliament intended that the LTIC which comprises of only one legal expert per se in its Chair, the remainder being lay members, was established or even possesses the expertise necessary to deal with claims of historical invalidity of judicial and legal process and questions of legal interpretation of statutes and documents. Undoubtedly that is why its jurisdiction excludes cases where valid title has been established pursuant to the legislated procedures for obtaining a Court or Crown grant. It is also difficult to read into the statute a power or intent for the Commission to be able to overturn the registered legal status of a piece of land secured by due legal process over 100 years ago which is what the Applicants case proposes.
34. The second problem with the Respondents submissions is their argument essentially means the jurisdiction of the Supreme Court is ousted. The Respondents view seems to be that while the Supreme Court has jurisdiction, this is somehow subsumed in favour of the LTIC because of the doubts cast by the proceedings on the validity of the Governments title.
35. This cannot be correct. The conferral by statute on a specialist body of an investigative or even adjudicative function does not necessarily operate to ouster the general jurisdiction of the Supreme Court which with only one limited exception is mandated by the Constitution to “possess and exercise all the jurisdiction, power and authority which may be necessary to administer the laws of Samoa”: article 70(1). As clarified by Sapolu in Mama:
    • “I hold that this Court has inherent jurisdiction to decide whether there is a real case of doubt as to the status of the disputed land in order to bring the provisions of the Land and Titles Act 1981 (now repealed) and the Land Titles Investigation Act 1966 into operation. To put it in other words, I hold that this Court has jurisdiction to determine whether those legislations apply to the facts of this case.”
36. Access to justice and the courts is a fundamental precept and component of the rule of law. I accept the submission of Applicants counsel that “it is a fundamental principle of statutory interpretation that access to justice and thus to the general jurisdiction of a superior court such as the Supreme Court cannot be abrogated or curtailed other than by means of express statutory language or necessary implication.” As noted, in Canterbury Regional Council v Independent Fisheries Ltd & Ors [2013] 2 NZRL 57 the New Zealand Court of Appeal said:
    • “[136] There is no doubt that the right of access to the Courts is well established as part of the rule of law in New Zealand. We agree with Mr Joseph, who presented the submissions for the respondents on this issue, that access to the Courts for the purpose of seeking justice, especially when decisions of the Government are involved, is a fundamental right.”
37. In his seminal work ‘Joseph on Constitutional and Administrative Law’ 5^th ed the learned author states at pages 38 and 39:
    • “The courts have developed normative presumptions of interpretation to guard against the casual erosion of citizens rights. Under the impetus of the human rights movement, these presumptions have hardened into a “sort of common law Bill’ of Rights’”.
    • The threshold presumption is that Parliament legislates consistently with fundamental rights. Thus the courts presume that Parliament does not intend to abrogate the common law rights of subjects, or deprive citizens of access to the courts, or authorise disproportionate penalties, or restrict the right of freedom of expression, or impose taxation by implication.
    • Parliament must legislate with manifest intent in order to oust those presumptions. The courts insist on an exacting threshold for overriding rights: “Plain words are needed to take away common law rights”: Deeble v Robinson [1954] 1 QB 77 (CA) at 81; “Fundamental rights cannot be overridden by general or ambiguous words”: R v Secretary of State for the Home Department, ex parte Simms [1999] UKHL 33; [2000] 2 AC 115 (HL) at 130; “General words would not suffice”. R v Lord Chancellor, ex parte Witham [1997] EWHC Admin 237; [1998] QB 575 at 586 where the Divisional Court held that Parliament would never be taken to authorize by necessary implication the deprivation of the right of access to the courts. Only the most dedicated, express parliamentary words could remove that right. The common law presumptions reflect the broader principle of legal policy, that no person should be in peril upon an ambiguity.”
38. See also Cropp v Judicial Committee [2008] NZSC 46; [2008] 3 NZLR 774 where the New Zealand Supreme Court held at paragraphs 26 and 27:
    • “A fundamental human right may not be interfered with except under a statutory provision where the right is excluded or abridged expressly or by necessary implication; and that, as Lord Hobhouse said in R (Morgan Crenfell & Co Ltd) v Special Commissioner of Income Tax [2003] 1 AC 563 at para [45], approved by the Privy Council in B v Auckland District Law Society [2003] UKPC 38; [2004] 1 NZLR 326 at para [68]:

‘a necessary implication is one of which necessarily follows from the express provisions of the statute construed in their context. It distinguishes between what it would have been sensible or reasonable for Parliament to have included or what Parliament would, if it had thought about it, probably have included and what it is clear that the express language of the statute shows that the statute must have included. A necessary implication is a matter of express language and logic not interpretation.

Counsel is correct in pointing out that the courts will presume that general words in legislation were intended to be subjected to the basic rights of the individual: R v Secretary of State for the Home Department, ex parte Simms [1999] UKHL 33; [2000] 2 AC 115 at p 131 per Lord Hoffmann. That presumption naturally applies to words which authorize subordinate legislation.”

39. And also Aitu v Faireka [2011] CKCA 1 a decision of the Cook Islands Court of Appeal:
    • “For example, privative clauses in legislation attempting to restrict access to the Courts always received a narrow interpretation, sometimes to the point of artificiality. The Courts began, in fact, with a presumption that the Act did not deprive the individual of access, and would only hold it did if no other interpretation were possible. In New Zealand Waterside Workers Federation Industrial Association of Workers v Frazer Salmond J Said:
      • In order to do so [that is remove the right of judicial review] effectually it would be necessary for Parliament to use language so clear and coercive as to be incapable of any other interpretation.”
40. As succinctly stated by Viscount Simonds in Pyx Granite Co. Ltd v Ministry of Housing [1960] AC 260, 286 (HL):
    • “It is a principle not by any means to be whittled down that the subjects recourse to Her Majesty’s courts for the determination of his rights is not to be excluded except by clear words. That is as McNair, J called it in Francis v Yiewsley & West Drayton Urban District Council [1957] 2 Q.B. 136, 148 a “fundamental rule” from which I would not for my part sanction any departure”.
41. There is nothing in the material before the court to indicate that Parliament in enacting the LTIA clearly or expressly intended to oust the jurisdiction of the Supreme Court to adjudicate on whether land is customary, freehold or public land. Indeed the Constitution itself in conferring on the Supreme Court a function of Constitutional interpretation in article 70(2) and the ability to determine subject only to one limited exception the “effect of any provision of this Constitution” points in the opposite direction:
    • ‘70. Jurisdiction of the Supreme Court -
    • (2) Except for Part IX Land and Titles Court and without prejudice to any appellate or revisional jurisdiction of the Supreme Court, where in any proceedings before another Court (except the Court of Appeal) a question arises as to the interpretation or effect of any provision of this Constitution, the Supreme Court may, on the application of any party to the proceedings, determine that question and either dispose of the case or remit it to that other Court to be disposed of in accordance with the determination.’
42. This arguably confers on the Supreme Court exclusive and overall jurisdiction to determine the classification of all land in Samoa in accordance with the article 101 classes of customary, freehold or public land.
    • ‘101. Land in Samoa - (1) All land in Samoa is customary land, freehold land or public land.
    • (2) Customary land means land held from Samoa in accordance with Samoan custom and usage and with the law relating to Samoan custom and usage.
    • (3) Freehold land means land held from Samoa for an estate in fee simple.
    • (4) Public land means land vested in Samoa being land that is free from customary title and from any estate in fee simple.”
43. It seems to me Parliament intended that the two jurisdictions co-exist in harmony. It is the function of the Supreme Court to determine the legal classification of land and depending on this categorisation, to direct litigants to the appropriate forum to determine questions of ownership. And in cases of serious doubt to invoke the permissive jurisdiction of the LTIA 1966 which caters to a wider audience and allows the broader aspects and arguments relating to custom and tradition to be considered by a specially composed Commission. It cannot have been Parliaments intent to thereby confer on the LTIC sole and exclusive jurisdiction or competence to determine associated and vexed questions of law and legal interpretation.
44. Applicants counsel also advanced arguments against reliance by the Respondents on section 9 of the Land and Titles Act 1981 but it is unnecessary to address this as the Land and Titles Act 1981 was repealed by the replacement Land and Titles Act 2020 which contains no section 9 equivalent. This was confirmed in President of Land and Titles Court v Attorney General [2022] WSSC 8 where the court concluded:
    • “(a) We consider the judicial appointments made under the LTA 1981 continue to have jurisdiction only insofar as expressly saved and provided for under s 67(2) LTA 2020, with respect to petitions filed before the commencement of the LTA 2020; and pursuant to s.67(4), with respect to a claim, title, right, interest, instrument or document created or vested under the LTA 1981.
    • (b) The President and Judges who were appointed under the 1981 LTA do not have the authority to exercise jurisdiction with respect to the other provisions of the 1981 LTA, or under any of the provisions of the LTA 2020.”
45. For these reasons, I dismissed the Respondents Motions.

The Sia’aga decision

46. In the course of consideration of the strike out Motions and deciding whether or not the Plaintiffs application and Statement of Claim should be struck out as disclosing no reasonable cause of action, I raised with counsel the issue of what impact if any the Court of Appeal decision in Sia’aga v OF Nelson Properties Ltd [2008] WSCA 15 may have on the relief sought by the Plaintiff. This was not expressly relied upon by the Respondents in their Motion to Strike Out application but was implicit in the defences raised.
47. In the interests of expeditiously bringing all relevant issues before the court, I invited counsels pursuant to rules 67 and 206 of the Supreme Court Civil Procedure Rules to provide written submissions on the matter.
48. Regrettably only the First Respondent filed comprehensive submissions. Those by the Second Respondent did not address the matter in any great depth and the Applicant objected to the procedure adopted by the court, almost obtusely suggesting the court was also contributing to the delay in expediting hearing of the Applicants Claim. This notwithstanding the fact that the Applicant is bringing a claim of abundant historical content and context.
49. The issue will clearly have to be addressed at some stage, the Applicant says most appropriately at the eventual hearing. It is not possible to do so in the present circumstances.

Costs

50. The Applicant is entitled to costs, the Strike Out Motions lacked substance and should not have been brought. In the absence of any agreement as to costs, Applicant is to file the necessary submissions within 14 days, the Respondents within 7 days thereafter.
51. The proceedings should be listed for calling at the next available Mentions to finalise Statements of Defence.
    

SENIOR JUSTICE NELSON