Fagasoaia v Attorney General [2024] WSSC 80 (20 September 2024)

IN THE SUPREME COURT OF SAMOA
Fagasoaia v Attorney General & Anor [2024] WSSC 80 (20 September 2024)

Case name:	Fagasoaia v Attorney General & Anor
Citation:	[2024] WSSC 80
Decision date:	20 September 2024
Parties:	TU’ISILA MALUAFITI FAGASOAIA, of Mutiatele, Aleipata and Auckland, New Zealand (Applicant) v ATTORNEY GENERAL, for and on behalf of the 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).
Hearing date(s):	23rd – 25th October 2023
File number(s):	MISC 118/18
Jurisdiction:	Supreme Court – CIVIL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Niavā Mata K. Tuatagaloa
On appeal from:
Order:	The claim by the Applicant is dismissed. The Applicant to pay the costs for each Respondent in the sum to be agreed or assessed by the Court. The First and Second Respondents file costs within twenty-one (21) days from the date of this judgment.
Representation:	R E Harrison KC & A Idoine for the Applicant DJ Fong & V Leilua for First Respondent L Sio-Ofoia for Second Respondent
Catchwords:	Land transactions – validity of land transactions – status of land – ownership of Namu’a Island.
Words and phrases:
Legislation cited:	Constitution of the Independent State of Samoa 1960, Art. 14; 101; 123(2); Evidence Act 2016, s. 10(1); Land Registration Act 1992, s. 16; Land Titles Registration Act 2018; Limitation Act 1623 (UK); Limitation Act 1950 (NZ), s. 50; Limitation Act 1975, ss. 4; 6(3); 31; 34; Samoa Constitution Order 1920; Treaty of Berlin 1889.
Cases cited:	Alii and Faipule of Laulii v Trustees of the Estate of Jacob Helg [2011] WSSC 48; Alii and Faipule of Satapuala v Attorney General [2008] WSSC 88 (24 October 2008); Alii and Faipule of Siumu District v Attorney General of Samoa [2010] WSCA 5 (24 September 2010); O.F. Nelson Properties Ltd v Feti [2008] WSSC 19; Harris v Knight [1890] UKLawRpPro 15; [1890] 15 PD 170 (CA); Siaaga v O.F. Nelson Properties Ltd [2008] WSCA 15; Tamaki v Maori Women’s Welfare League Inc [2011] NZHC 688; [2011] NZAR 605; Tamale v Attorney General CA 2/95B, 18 August 1995; Tu’isila v Attorney General [2023] WSSC 23 (3 May 2023).
Summary of decision:

THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

TU’ISILA MALUAFITI FAGASOAIA, of Mutiatele, Aleipata and Auckland,
New Zealand.

Applicant

AND:

ATTORNEY GENERAL, for and on behalf of the 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

Counsels: R E Harrison KC & A Idoine for the Applicant

DJ Fong & V Leilua for First Respondent

L Sio-Ofoia for Second Respondent

Hearing: 23^rd, 24^th, 25^th October 2023

Judgment: 20^th September 2024

JUDGMENT OF JUSTICE TUATAGALOA

1. I apologise for the delay in issuing this decision. This was not an easy decision to write for the claim by the Applicant dates back to the 1880s and is “of abundant historical content and context”^[1] that the Court needed to carefully consider.
2. This Court has in previous cases regarding land transactions during the period Samoa was under the German and New Zealand administrations considered and analysed documentary evidence as to the validity of land transactions to confirm the status of the lands in issue.^[2]
3. This Court ought to not lightly depart from the principles consistently applied by the Supreme and the Court of Appeal on the questions of custom and history, law and their impact on property and political rights prior to the enactment of the Samoa Constitution Order 1920.^[3] In other words, the Court will not lightly contribute to what has already been determined.

The Parties

4. The Applicant holds the paramount matai title ‘Tu’isila’ of Mutiatele, Aleipata.
5. The First Respondent, the Attorney General, is sued for and on behalf of the Government of Samoa who is the registered owner of the Namu’a Island (“Namu’a”) as ‘public land’.
6. The Second Respondent, the Public Trustee, is the Executor of the estate of Salaevalu Tu’isila Ulberg who holds a valid lease of 20 years from 01 July 2015 to 30 June 2035 with the right of renewal for a subsequent period of 20 years.

Pleadings

(a) The Applicant – Tu’isila Maluafiti Fagasoia

7. The Applicant claims there was no legally valid step that removed Namu’a out of the native title that it was originally under, held by the then Tu’isila from time to time; and there was no valid transaction or valid step taken resulting with Namu’a in the hands of the German State. The Applicant therefore pleads the following transactions to be unlawful and invalid:
   • (i) The alienation of Namu’a Island to Peter Laban;
   • (ii) The subsequent alienation of Namu’a Island by William Laban to the DHGP;
   • (iii) The vesting of the ownership of Namu’a Island in the First Respondent is unlawful based on a chain of title that was wrongful/invalid and in breach of the Constitution of the Independent State of Samoa; and
   • (iv) The lease granted by the Government over Namu’a Island is invalid.
8. The Applicant seeks the following declaratory orders:
   • (i) A declaration that any purported alienation of Namu’a whether by way of purchase, mortgage, forfeiture or otherwise howsoever to in favour of either Peter Laban or William Laban was unlawful, invalid and of no effect;
   • (ii) A declaration that any purported alienation of Namu’a whether by way of purchase, mortgage, forfeiture or otherwise howsoever to or in favour of “DHGP.” was unlawful, invalid and of no effect;
   • (iii) Damages or compensation for the wrongful exercise by the First Respondent of ownership rights (in particular, the wrongful leasing of Namu’a) including, but not limited to, restitution of all rental payments received by or to the benefit of the First Respondent.

(b) The First Respondent – Government of Samoa

9. The First Respondent says that any ‘native’ title or claim to Namu’a by the Tu’isila title has been well and truly extinguished by various judgments of the Mixed Court, the Land Commission, and the Supreme Court in 1895. It therefore, opposes the application and seeks to dismiss the said application in its entirety on the following grounds:
   • (i) The Applicant has no standing for the relief claimed and that Namu’a is native land or customary land held pursuant to Article 123(2) is unfounded and baseless as there was no classification of land back then. The Applicant claims that ownership of Namu’a remained with the Tu’isila title as the loan owing was fully repaid and would now be classified and known as customary land.
   • (ii) Indefeasibility of title: Prior to 2008 Samoa’s system of conveying title to freehold land was by registration of deeds pursuant to s.16 of Land Registration Act 1992-1993 whereby no instrument is to affect the legal title until and unless registered under the Act. In that respect, it resembled the Torrens system. However, registration did not confer indefeasibility. The Torrens system operates on the principle of “title by registration.” This means that registered ownership is granted high indefeasibility and there is no need to prove a chain of title. The applicant says that customary land is not transferable by deed of conveyances, therefore indefeasibility does not apply.
   • (iii) Relief sought is statute barred under Limitation Act 1975; The Applicant claims the Limitation Act 1975 does not apply for Namu’a has at all material times had, and continues to have, the status of native land, and at present customary land as it is now known (section 4).
   • (iv) Inordinate delay in bringing these proceedings;
   • (v) The Government of Samoa is the wrong party to this proceeding;
   • (vi) Namu’a was Crown land under the New Zealand Administration before becoming public land under the Government of Samoa;
   • (vii) There is no breach of Article 14 asserted by the Applicant; and
   • (viii) The principle of omnia praesumuntur rite esse acta^[4] applies.
10. The First Respondent seeks the following orders:
    • (a) To dismiss these proceedings;
    • (b) Costs; and
    • (c) Any further relief as deemed appropriate by this Honourable Court.

(c) The Second Respondent – The Public Trustee (Estate of Salaevalu Tu’isila Ulberg)

11. When these proceedings were originally filed in 2019, Salaevalu Tu’isila Ulberg was alive and had objected to the claim. Ms Ulberg has since passed away but prior to passing away had deposed an affidavit dated 1 March 2019 saying that her father held the Tu’isila title, therefore supporting the contention by the Applicant that Namu’a belongs to the title Tu’isila. The Public Trustee represents her estate in the present proceedings as the lease on Namu’a from 1 July 2015 to 30 June 2035 is still valid with an option of renewal for a subsequent period of 20 years. The Public Trustee’s stance, however, differs from that taken by Ms Ulberg.
12. The Second Respondent is of the view that the Government of Samoa is the registered owner of Namu’a as public land; therefore, the lease granted by the Government of Samoa to Salaevalu Tu’isila Ulberg was lawful and valid.
13. The Second Respondent seeks the following orders:
    • (a) Dismissal of the claim by the Applicant in its entirety;
    • (b) Costs of and incidental to these proceedings, inclusive of legal costs; and
    • (c) Any other and such further orders as the Court deems just.

Relevant Rules of Evidence

14. The Court has previously dealt with similar issues of hearsay evidence.^[5]
15. The question of title and ownership of Namu’a dates to events that occurred from 1873 to 1895, many, many years ago. The documentary evidence referred to would be hearsay and prima facie inadmissible as none of the people who participated in those events from 1873 to 1895 are alive today. Counsels agreed to admit by consent all the documentary evidence relating to those events with the Court to decide what weight, if any, to give to each piece of evidence. ^[6]
16. Some of the documentary material relating to and relevant to the history of ownership of Namu’a cannot be produced to the Court. Presumably, those documents are lost and cannot be found. However, those documents can be gathered from the references to them in the documents produced in evidence.
17. I consider the evidence with those principles in mind.

History of Land Transactions

18. Namu’a is a small island off the southeast coast of Upolu Island adjacent to the District of Aleipata, opposite the village of Mutiatele. The Applicant claims that Namu’a was held, owned and occupied by the holder of the Tu’isila title of Mutiatele, Aleipata. The Applicant based his claim on the original and only transactions that took place regarding Namu’a by the title holder at the time, Tu’isila Matagi. There is no other documentary material before the Court that suggests a claim over Namu’a prior to and during 1880s by any other Samoan except the Tu’isila family.
19. The land transactions regarding Namu’a has its origin in a loan arrangement in or around 1880 as follows:
    • 24 November 1873: Tu’isila Matagi leased Namu’a island to a German national, Peter Laban (and two others) for the term of five years at $50 per year payable every six months in advance; which payment of the first six months entitled Peter Laban (and two others) to have possession of Namu’a.^[7]
    • In or around 1880: Tu’isila Matagi loaned $75 from a German national, Peter Laban.^[8]
    • 9 October 1882: Judgment of the Mixed Court (Samoan/German) requiring the Tu’isila family to repay the balance of the loan owing to Peter Laban by 8 November 1882; failure to do would vest ownership of Namu’a to Peter Laban.^[9]
    • In or about 1892: Claim 134 was lodged by Peter Laban with the Land Commission asserting that he occupied the land originally as a lessee in October 1882 and then after 6 months as a mortgagee by virtue of a judgment by the Mixed Court on 9 October 1882.^[10]
    • 18 October 1894: Land Commission issued report on Claim 134 to the Supreme Court determining that Peter Laban held title to Namu’a by virtue of judgment of the Mixed Court.^[11]
    • 2 October 1895: The Supreme Court issued Court Grant 167 declaring Peter Laban’s son William Laban as owner of Namu’a.^[12]
    • 19 November 1921: William Laban mortgaged Namu’a to German company DHGP for 12,000 deutschmarks.^[13]
    • Treaty of Versailles 1919, Part IV Article 119 – Germany “renounced all her rights and titles over her overseas possession” to the Allied Powers. Land under German Government vests in His Majesty the King of England.
    • 19 November 1921 - Namu’a registered as Crown land pursuant to Clause 378 of the Samoa Constitutional Order 1921 in the Land Register as Volume 5, Folio 103.^[14]
    • 1962 - Pursuant to the Constitution, Article 123 all land under Her Majesty the Queen vests in the Government of Samoa and registered accordingly in Volume 5, Folio 103.
    • 20 August 2012 - Namu’a registered under the Government of Samoa in Volume 56, Folio 44.
20. The following facts may be taken as indisputable and are accepted by the Court:
    • Prior to 1880, Namu’a was owned by the Tu’isila title of Mutiatele;
    • In 1873 Tu’isila Matagi leased Namu’a to Peter Laban and two others. It is not pleaded but there is documentary evidence of such lease^[15] and referred to in Land Claim 134;
    • Tu’isila Matagi loaned $75 from a German national named Peter Laban;

• Namu’a was offered as security for the loan;^[16]
• Peter Laban was granted ownership of Namu’a by the Supreme Court in 1895 by Court Grant 167;
• Peter Laban died and his son, William Laban continued to reside on Namu’a;
• William Laban mortgaged Namu’a with DHPG company;
• Namu’a together with all properties under the German Empire were transferred and vested under the King of England then to the New Zealand Government and to the Samoan Government in 1962 to date;
• Namu’a went through the following process: Mixed Court (9 October 1882), Claim 134 lodged (1892) Land Commission issued Report (18 October 1894), Supreme Court issued Court Grant 167 (2 October 1895).

21. It is established that land only became classified under the Samoa Constitution Order 1920 as European land, Government land and Native land;^[17] and now classified as freehold land, public land, and customary land under the Constitution.^[18] The classification of lands brought with it restrictions and rules on the alienation of land as they are classified.

The issues

22. The main issue in these proceedings is ownership of Namu’a and the extinguishment of its native title. The Applicant claims that ownership of Namu’a by the Tu’isila title was never extinguished and relies on the following:
    • (i) The loan owing to Peter Laban was fully paid on 17 October 1882;
    • (ii) That Tu’isila Matagi had no lawful authority to or power to mortgage Namu’a; and
    • (iii) The purported grant of security or mortgage did not confer on Peter Laban either a right of ownership of Namu’a having the legal status of a mortgagee in possession.

Therefore, all subsequent transactions involving Namu’a were unlawful and invalid.

23. Central to the success of the claim by the Applicant is whether the loan was fully paid. I must first address the issue of the authority of Tu’isila Matagi who made the loan and used Namu’a as security.
24. To address these issues the Court will look at the process involved which included the Mixed Court (1882), the Land Commission (1892-1894) and the Supreme Court (1895).
25. The other issue raised by the Court is whether the present Supreme Court has jurisdiction to declare invalid and unlawful a decision of the Supreme Court in 1895 fully aware that the two remedies of right of appeal or judicial review are not available to the Applicant.
26. I now turn to consider those issues:

Did Tu’isila Matagi have lawful authority to or power to mortgage or use Namu’a as security for the loan?

27. The questions of custom and history, law and their impact on property and political rights have been considered by the Samoan courts in the following cases: O.F. Nelson Properties Ltd v Feti [2008] WSSC 19; Siaaga v O.F Nelson Properties Ltd [2008] WSCA 15; Alii and Faipule of Satapuala v Attorney General [2008] WSSC 88; Alii and Faipule of Siumu v Attorney General [2010] WSCA 5 and Alii and Faipule of Laulii v Ash and Brighouse [2011] WSSC 48; [2012] WSCA 13.
28. It is established and accepted that prior to 1920^[19] ‘lands’ was just land owned by the Samoan people. There were no rules or laws that land in Samoa could not be alienated to aliens or foreigners or at least prior to the Treaty of Berlin 1889 (“Berlin Act”).^[20] There was also no evidence of any custom that land in Samoa could not be alienated to aliens or foreigners. The Samoans were free to alienate land they owned whichever and however they wished.^[21] (my emphasis)
29. The Applicant has not provided enough evidence to prove that the custom at the time was that the Sa’o (paramount chief) of the family could not or did not have lawful authority to alienate land prior to 1920. I (like Nelson J in Alii and Faipule of Siumu at [12]) agree with former Chief Justice Patu in O.F. Nelson Properties Ltd v Feti where he said on the issue of the authority of the holder of matai title to alienate land by lease or licence in 1872 as in this case, “... has exclusive pule and authority over lands pertaining to his or her title”. This is especially true where the matai title held is a paramount title such as the Tu’isila title.
30. The Court of Appeal in Alii and Faipule of Laulii v Ash and Brighouse [2012] WSCA 13 although there is much debate on the question of whether the matai had authority to sell, the Supreme Court by way of Court Grant would on record confirm alienation of land; at [22]:
    • “That such confirmations conclusively determine title for all subsequent purposes was established by this Court in Siaaga v O.F Nelson Properties Ltd [2008] WSCA 15; Alii and Faipule of Siumu v Attorney General [2010] WSCA 5 and Samoa Party v Attorney General [2010] WSCA 4. In the face of those authorities, it is not easy to understand how the appeal could have succeeded whether or not the appellants had been able to show that the selling matai lacked the authority to sell.”
31. Tu’isila Matagi prior to 1920 had authority regardless if under his title Tu’isila or not to deal with Namu’a however way he wanted.

Was the loan owing to Peter Laban fully paid?

32. It is not disputed that Tu’isila Matagi in or around 1880 loaned $75 from Peter Laban. The Applicant claims that the loan was fully repaid referring to a notation on the Mixed Court decision of 1882. According to the Applicant, the Mixed Court decision was obliged to and is therefore, spent.
33. It was obvious that the loan was still not paid after two years because it was part of the complaint by Peter Laban. The German Consul General, Zembsch wrote to King Malietoa on 29 September 1882^[22] requesting for King Malietoa to order Tu’isila Matagi’s brother Ikoke for Tu’isila Matagi had since passed away to come to Apia for the matter to be dealt with.

The Mixed Court

34. There was in existence during the German administration of Samoa in the 1880s (prior to the Treaty of Berlin 1889) a Mixed Court jointly presided by the German Imperial General Consul and two Samoans over disputes relating to land, property, and other matters where cultural differences played a significant role between Samoans and Germans.[23] The authority of the Mixed Court is said to be based on customary and traditions then, but with no doubt influenced by German law.
    • “They were considered an integral part of their respective host polities, domestic legal order and mostly reached their decisions based on local, albeit often special and Westernized, laws.”^[24]
35. The first Government of Samoa was recognised under the kingship of Malietoa in 1881.^[25] The composition of the Mixed Court in 1882 was made up of the German Consul, Zembsch and two Samoans, Masua and Tuiatafu endorsed by King Malietoa. It cannot therefore be said that the Mixed Court was without validity.
36. The idea of ‘mortgage’ and ‘security’ are no doubt the influence of German law. This was certainly reflected in the Mixed Court decision for it recognised that Namu’a was offered by Tu’isila Matagi to Peter Laban as security for $75 loaned.
    • “Today this 9^th day of October 1882 the complaint was heard of Peter Laban from Namu’a, Aleipata against Etoke^[26] and the family of the late Chief Tu’isila Matagi from Mutiatele, Aleipata about the proprietorship of the small island of Namu’a which had been pledged or mortgaged by Tu’isila Matagi to Peter Laban for the sum of $75.00.”
    • (my emphasis)
37. At the Mixed Court hearing on 9^th October 1882 Tu’isila Matagi (as noted on judgment) has since passed away but his brother Ikoke (spelt ‘Etoke’) was present. The Mixed Court decided as follows :^[27]
    • (i) That Tu’isila family will pay the balance $42 to make up the $100 to be paid by the 18th of October 1882 direct to (into the hands) of the German Consul General, and $30 is to be paid to Peter Laban by 8 November 1882 towards the development of Namu’a
    • (ii) The Tu’isila family will provide written agreement that no one person shall hinder/interfere with the possession of the land called ‘Vanuvanu’ by Peter Laban.
    • (iii) Should they not pay the sums as mentioned in paragraph 1 by the due date, then the land of Namu’a shall pass to Peter Laban.
    • (iv) Peter Laban wishes to leave Atua and will no longer live there; he will give back Namu’a if his debt is repaid in full to him. The high chiefs Tafua and Fuataga have offered to investigate their people of Aleipata if anyone owes anything to Peter Laban. Chief Tuiatafu has offered to ask his people in Tuamasaga for anything owing to Peter Laban.
    • (v) Peter Laban lives on Namu’a and will not rest until all outstanding debt due to him is repaid.
    • (vi) If Peter Laban departs Namu’a, he should be given sufficient days to pack up his belongings, as he has several things such as pigs and a variety of goods useful to him.

The people of Mutiatele have accepted that they should help Peter with the sale of his goods if Peter requires it.

38. The Mixed Court decision was both in English and Samoan. Alongside paragraph (1) of the English version of the judgment were handwritten notes of such monies having paid by 17^th October 1882.^[28] These notes were (presumably) signed by Zembsch, the German Imperial Counsel for it has his name to it. The Applicant claims that these ’notations' on the Mixed Court decision becomes part of the official judgment and is proof that the monies owing by the Tu’isila family have been fully paid. The First Respondent disagrees and says that the notes alone are not conclusive evidence that the money was paid. The Second Respondent says that the handwritten notes look to be in the same handwriting as the English version of the decision with Zembsch’s name to it but the letters of 1883/1884 by Zembsch thus questions whether such monies were ever paid.
39. Other than the handwritten notations of payment on the Mixed Court decision, no other documentary material refers to or confirms that such payment had been received. The German Imperial Consul, Zembsch in his letters following in 1883/1884 did not at all refer or acknowledge that the Tu’isila family had fully paid their debt.
40. The authenticity of the notations is questionable and so is payment claimed by the Applicant to have been made for the following reasons:
    • (i) Firstly, according to paragraph (1) of the Mixed Court decision, the Tu’isila family was to pay $42 to Zembsch and $30 was to be paid to Peter Laban. However, the notations have both amounts paid to Zembsch. There is no documentary evidence to suggest that Peter Laban received the amount of $30 from the Tu’isila family or from Zembsch if such amounts were paid to Zembsch nor any documentary material of any acknowledgement by Peter Laban of such debt being paid by the Tu’isila family.

(ii) Secondly, in fact, the letters following the Mixed Court decision do raise doubt on the Tu’isila family having made full payment. In 1883/1884 Zembsch wrote to King Malietoa seeking his assistance with Peter Laban’s complaints.^[29] The letter dated 18^th April 1883 (unsigned) refers to two complaints by Peter Laban that he still has not been able to take possession of Vanuvanu nor debts owing to him by Samoans have been paid. The letters following of 8^th December 1883^[30] and 21^st February 1884^[31] have Peter Laban still complaining of him still not having possession of Vanuvanu but instead of monies owing by the Samoans now also asking for the Tu’isila family to repay their debt.
(iii) Thirdly, Zembsch does not in any of his letters referred to by the Applicant acknowledge receiving any payment by the Tu’isila family. No other documentary material before the Court refers or acknowledges that such payments were made.
(iv) Fourthly, the Court was not afforded the benefit of expert evidence on the handwritten notation to assist in making a definitive decision as to whether the ‘notations’ were indeed Zembsch handwriting. The evidence of a handwriting expert is crucial for the following reasons - (a) The Applicant’s claim rests or depends on the payment of the loan which the only evidence that such loan was paid relied upon by the Applicant is the ‘notations’ on the Mixed Court decision and (b) The ‘notations’ dates to 1882.
(v) Fifthly, the Mixed Court decision is in both English and Samoan but the ‘notations’ appear only on the English version.

41. There is not enough or sufficient evidence to establish that it was more likely than not that the Tu’isila family fully repaid the loan. The ‘notations’ on the Mixed Court decision cannot be taken to be conclusive evidence that monies owed by the Tu’isila family were paid.
42. The Mixed Court in paragraph (3) of its decision states that if the Tu’isila family does not pay the money as in paragraph (1), ownership of Namu’a shall pass to Peter Laban. The Mixed Court did not vest ownership of Namu’a to Peter Laban but the Supreme Court by Court Grant 167 in 1895.
43. Given the view I have reached the claim by the Applicant fails.
44. However, I wish to briefly address the legal process involved resulting in the extinguishment of any native title as claimed by the Applicant.

(a) The Applicant claims that the land claim lodged by Peter Laban over Namu’a in 1894 with the Land Commission (No.134)[32]is not because of money owing by the Tu’isila family but debts owing by (other) Samoans for merchandise and copra.

45. Firstly, The Mixed Court decision was not just about payment of money owed by the Tu’isila family but includes all outstanding debts owing to him by Samoans as in paragraphs (4) and (5) which accordingly, Peter Laban continues to live on Namu’a until all such monies are paid. These monies were never paid for Peter Laban lodged Claim 134 with the Land Commission in 1892.

45.1 In the Mixed Court decision Fuataga who is the chief of Lalomanu and Tafua who is the chief of Saleaumua, both of Aleipata and another chief named Tuiatafu of Tuamasaga offered to find out if any of their people owed money to Peter Laban. According to the list the people who owed money to Peter Laban were from the District of Aleipata (including Mutiatele) where the title Tu’isila is from. One of the names on the list is spelt ‘Ikote’ from Mutiatele.^[33]
45.2 The documentary material has different spellings of the name Ikoke as ‘Etoke’ (in the Mixed Court decision) and ‘Ikote.’ There is no other person referred to in the documentary materials with a similar name other than Tu’isila Matagi’s brother Ikoke who is from Mutiatele and who also held the Tu’isila title.

46. The Berlin Act not only established two legal regimes – the Supreme Court (Article III) and the Land Commission (Article IV), but also provided a mechanism whereby claims could be investigated and settled whether by compromise between the parties or by determination by the Land Commission and ultimately by the Supreme Court.

The Land Commission

47. It follows that Peter Laban in or about 1892 lodged a claim (Claim 134) over Namu’a with the Land Commission; by section 4 (of Article IV) the Land Commission was to investigate all claims to land by foreigners in Samoa and report to the Supreme Court whether the alleged title should be recognised and registered or rejected.
48. There is documentary evidence that there was a hearing of Claim 134 before the Land Commission, but Tu’isila Ikoke did not attend. According to Article IV, section 6 - “Undisputed claims, and such as shall be decided valid by the unanimous voice of the Commission shall be confirmed by the Court in proper form in writing and be entered of record”. On 18 October 1894 the Land Commission issued its Report to the Samoa Supreme Court where it confirms that Peter Laban is a lawful mortgagee under the terms of the Mixed Court decision for advances he made to the amount of $300, and that the claim is not disputed as one of mortgage under the terms of the said decision. The Land Commission, “by unanimous voice held the claim to be valid, that it be recognised and registered.”^[34]
49. Although not pleaded, there is documentary evidence that Tu’isila Matagi leased Namu’a to Peter Laban (and two others) on 24 November 1873 for the term of five (5) years at $50 per year payable every six months in advance; which payment of the first six months entitled Peter Laban (and two others) to have possession of Namu’a.^[35] Peter Laban was therefore in possession of Namu’a ‘originally as lessee.’
50. The lease would have expired on 25 November 1878, and in or around 1880 Tu’isila Matagi loaned $75 from Peter Laban. The documentary material before the Court has that Peter Laban never left Namu’a and had continued to live on and cultivate Namu’a from 1873-1882 (Mixed Court) and thereafter to 1895.
51. Pursuant to Article IV section 9 provides where there is undisputed possession and continuous cultivation of lands by aliens for 10 years or more shall constitute a valid title by prescription to the lands so cultivated and an order for the registration of the title thereto.
52. Tu’isila Ikoke lodged his objection to the claim by Peter Laban a little over two years after the claim was filed on 17^th October 1894. The objection would be considered out of time under Article IV, section 3, which can only be extended by the Chief Justice. There is no documentary evidence of any extension granted by then, Chief Justice Ide.

(b) The Applicant claims that the Supreme Court exceeded its jurisdiction.
The Supreme Court

53. Article III, section 9 of the Berlin Act, confers upon the Samoa Supreme Court exclusive jurisdiction to all civil suits concerning real property (land) situated in Samoa and all rights affecting the same (section 9(1)) and of any kind between the natives and foreigners or between foreigners (section 9(2)).
54. The Applicant does not dispute the legality, and the authority of the Samoa Supreme Court established under the Berlin Act but claims that the Supreme Court has exceeded its jurisdiction because Peter Laban’s Claim 134 was never about ownership but about debts owing to him by Samoans. In other words, the Court has jurisdiction but had acted ultra vires or illegally.
55. Firstly, I have difficulty with this argument because this means that it is brought into the realm of judicial review which in my view is not available to the Applicant. The Applicant’s relatives, Tu’isila Ikoke and Uo in the 1890’s had exhausted that avenue for they challenged the claim by Peter Laban and were unsuccessful.^[36] Secondly, the Supreme Court cannot judicially review its own decisions.
56. Secondly, Peter Laban in his Claim 134 clearly identified Namu’a to be the land he is claiming ownership and for consideration of his claim are the advances of $300 owing to him by the Samoan people which included people of Mutiatele and someone by the name of ‘Ikote’ (see paragraph [45.2]). It therefore cannot be said that the Samoa Supreme Court in 1895 exceeded jurisdiction.
57. Furthermore, the Supreme Court is not bound by any decision of the Mixed Court but is free to make its own decision within its jurisdiction.^[37] What was before the Supreme Court was the Land Commission Report on Claim 134 by Peter Laban which the Chief Justice can accept or reject. Chief Justice Ide acknowledged the Land Commission Report and confirmed the claim pursuant to Article IV section 10 resulting in the issuance of Court Grant 167 vesting ownership of Namu’a to Peter Laban on 2 October 1895.^[38] Such decision is final (section 2) and conclusive upon all residents of Samoa (section 4).
58. The Supreme Court having issued a Court Grant is a matter of record confirming vesting of ownership of land:

“That such confirmations conclusively determine title for all subsequent purposes was established by the Court in Sia’aga v OF Nelson Properties Ltd [2008]; Alii and Faipule of Siumu District v Attorney General [2010] and Samoa Party v Attorney General [2010].”^[39]

59. The vesting of ownership of Namu’a to Peter Laban was by due process and any native title to land is extinguished.
60. I turn now to consider the applicable limitation period.

The applicable limitation period

61. The Applicant claims that Namu‘a has never lost its status as customary land and in terms of section 4, the Limitation Act 1975 does not apply. As is clear from what has been said in this judgment, such a claim by the Applicant was extinguished when ownership of Namu’a was vested to Peter Laban. Currently, the status of Namu’a is public land registered under the Government of Samoa.
62. The Limitation Act does not apply as it did not exist at the time of the transactions regarding Namu’a from 1873-1925. There is no evidence of what the limitation period is (if any) during the German administration and counsels did not refer to any, but the laws of England would be applicable during the time of the New Zealand administration in Samoa.[40]
63. This Court takes the lead from Alii and Faipule of Satapuala v Attorney General [2008][41] as to the possible limitation period applicable at the time where it says:
    • “[75] It has not been possible to find out for certain, in the time I have to prepare this judgment, what was the law in force in New Zealand in 1921 regarding limitation of suits and actions. However, there is reference in the First schedule of the Limitation Act 1950 (NZ) to the Limitation Act 1623 (UK) which was one of the United Kingdom enactments that used to apply to New Zealand but was repealed by the 1950 Act. I have not been able to find a copy of the Limitation Act 1623 (UK). (my emphasis)
    • [76] The Limitation Act 1950 (NZ) must have applied to Samoa by virtue of s.359 of the Samoa Act 1921. This must have been up to Independence Day as there is nothing to show that the 1950 Act ceased to apply to Samoa prior to Independence Day.
    • [77] By virtue of Article III of the Constitution which defines the terms “existing law” and “law” and Article 114 which provides for the continuation of the “existing law” on and after Independence Day, the Limitation Act 1950 (NZ) must have continued to apply to Samoa on and after Independence Day. In fact, under s.6 of the Reprint of Statutes Act 1972, the Limitation Act 1950 is specified as one of the remaining New Zealand statutes which continued to form part of the law of Samoa up to that time. It was not until our own Limitation Act 1975 was enacted that the application of the Limitation Act 1950 (NZ) to Samoa was repealed.”
64. In writing this decision I managed to obtain a copy of the Limitation Act 1623 (UK)^[42] which provides for a limitation period of 20 years. So, if 1914 (when New Zealand took over Samoa on behalf of the United Kingdom) expires in 1934, this means that any limitation period would have expired under the UK Act. According to s.34 of the Limitation Act 1950 (NZ), if any action was barred before the commencement of the Limitation Act 1950 ‘by any enactment repealed or amended by this Act or ceasing to have effect by virtue of this Act’ such action cannot be brought again save where there is acknowledgement or part payment made.
65. Section 31 of the Limitation Act 1975 (Samoa) is identical to s.34 of the Limitation Act 1950 (NZ). It follows then that if an action was already barred under its predecessor the Limitation Act 1950 (NZ), then such an action cannot be brought again save where there is acknowledgement or part payment.
66. The status of Namu’a is not customary but public land registered under the Government of Samoa. The Limitation Act 1975 would therefore apply and pursuant to section 6(3), the limitation period for bringing an action to recover land is 12 years from the date the right accrued. Given the very lengthy lapse of time, any claim will be out of time and is statute barred.
67. Prior to the Land Titles Registration Act 2008, Samoa’s system of conveying title to land (freehold) was by registration of deeds pursuant to s.16 of Land Registration Act 1992-1993 whereby no instrument is to affect the legal title until and unless registered under the Act. In that respect, it resembled the Torrens system which operates on the principle of “title by registration”. This means that registered ownership is granted high indefeasibility and there is no need to prove a chain of title. Namu’a has since been registered under the Government of Samoa.
68. Given the views and conclusions reached by the Court, there is therefore no need to address the issue of whether the vesting of ownership of Namu’a with the Government of Samoa by law was lawful. The chain of title vesting ownership of Namu’a to Peter Laban is in the view of the Court lawful and valid. I fail to see how further addressing this issue would benefit the Applicant.

Conclusion

69. To conclude, Nelson J rightly summarised the present case as follows:^[43]
    • “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.”
70. The Supreme Court by vesting ownership of Namu’a to Peter Laban in 1895 would, in terms of the Samoa Constitutional Order 1920, have transferred Namu’a out, of native or customary title. In other words, it extinguished any native title claim to Namu’a.
71. Any claim by the Tu’isila family to Namu’a is statute barred. The registered legal status of Namu’a was secured by due process over 100 years ago and in the words of the Court of Appeal in the case of Sia’aga is “now unchallengeable”.
72. The principle of omnia praesumuntur rite esse acta therefore applies that ‘all things are presumed to have been done right’.^[44]
73. The claim by the Applicant is dismissed.
74. The Applicant to pay the costs for each Respondent in the sum to be agreed or assessed by the Court. The First and Second Respondents file costs within twenty-one (21) days from the date of this judgment.

JUSTICE TUATAGALOA

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^[1] Tu’isila v Attorney General [2023] WSSC 23 (3 May 2023)
^[2] see O.F.Nelson Properties Ltd v Feti [2008] WSSC 19; Siaaga v O.F. Nelson Properties Ltd [2008] WSCA 15; Alii and Faipule of Satapuala v Attorney General [2008] WSSC 88 (24 October 2008); Alii and Faipule of Siumu District v Attorney General of Samoa [2010] WSCA 5 (24 September 2010); Alii and Faipule of Laulii v Trustees of the Estate of Jacob Helg [2011] WSSC 48; Tamale v Attorney General CA 2/95B, 18 August 1995.
^[3] Alii and Faipule of Siumu District v Attorney General of Samoa [2010] WSCA 5 (24 September 2010)
^[4] Harris v Knight [1890] UKLawRpPro 15; [1890] 15 PD 170 (CA), see also Tamaki v Maori Women’s Welfare League Inc [2011] NZHC 688; [2011] NZAR 605 at [72]
^[5]Evidence Act 2016, s.10 (1) - Such evidence is admissible where the maker of a statement is unavailable as a witness and provided the surrounding circumstances provide reasonable assurance that the evidence is reliable.
^[6] The evidence was by affidavit with both counsels referring to a lot of old documents. These old documents were obtained from the National Archives in Wellington, New Zealand with some from the Samoa Land Registry in the Ministry of Natural Resources and Environment. They would then be public records or documents pursuant to section 106 of the Evidence Act 2016.
^[7] Applicant’s Bundle of Documents Volume 1 of 2 - Tab 1, BD:1
^[8] Mixed Court decision 29^th September 1882 in Applicant’s Bundle of Document, Vol.1 of 2, tab 5 (Samoan version), tab 6 BD22 (English translation) referred to also in the Affidavit of Tuisila Maluafiti (applicant) dated 5^th April 2018, attachments 7,8,9.; also referred to in Affidavit of Filisita Heather (for First Respondent), dated 18^th July 2018, annexure “B”.
^[9] Volume 1 of 2 – Tab 6 BD20 -22, Tab7 BD23-24
^[10] Affidavit of Filisita Heather, dated 18^th July 2018 – Annexure “C”. Furthermore, the Claim could not have lodge in 1884 because Land commission only existed from 1889/1890 under Treaty of Berlin.
^[11] Affidavit of Filisita Heather, dated 18^th July 2018 – Annexure “D”
^[12] Applicant’s Bundle of Documents, Volume 1 of 2: Tab 29 BD106 -110 including typed version
^[13] According to the Land Register, Volume 5, Folio 103
^[14] see: Affidavit of Filisita Heather dated 18 July 2018, Attachment ‘F ‘
^[15] Applicants Bundle of Documents, Volume 1 of 2, Tab1
^[16] Affidavit of Tuisila Maluafiti (Applicant), dated 5^th April 2018, at paragraphs [10] & [11]
^[17] O.F.Nelson Properties Ltd v Feti [2008] WSSC 19; Sia’aga v O.F.Nelson Properties Ltd [ 2008] WSCA 14; CA04 of 2008 (19 September 2008); Alii and Faipule of Siumu v Attorney General [2010] WSSC 9; WSCA 5; Alii and Faipule of Satapuala District v Samoa Trust Estates Corporation [2012] WSSC 24 (17 April 2012), Ifi v Attorney General [2021]WSCA 9(10 December 2021); [2020] WSSC 23 (14 February 2023).
^[18] Constitution, Article 101
^[19] It was not until the Samoa Constitution Order 1920 enacted by the New Zealand Government that land in Samoa was then classified
^[20] The Berlin Act provided that all future alienations of lands in Samoa to the citizens or subjects of foreign countries were prohibited apart from certain leases (Article 4, s1)
^[21] see Siaaga v O.F. Nelson Properties Ltd [2008] WSCA 15
^[22] Applicants Bundle of Documents, Volume one of two, Tab 4, BD11 -12; Letter by Zembsch to King Malietoa referred to as Annexure “A” in Affidavit of Filisita Heather (for the First Respondent), dated 18 July 2018.
^[23] Published online by Cambridge University Press, 05 May 2013 “The Cambridge Companion to Comparative Law”, Chapter 17 – Mixed Legal systems; pp.368-383
^[24] Oxford Public Law International: Mixed Courts of the Colonial Era; opil.ouplaw.com
^[25] O.F.Nelson Properties Ltd v Feti [2008] WSSC 19; Sia’aga v O.F.Nelson Properties Ltd [ 2008] WSCA 14; CA04 of 2008 (19 September 2008);
^[26] There are various spellings to this name Etoke, Ikoke, Itoke but the same person is referred to as the brother of Tu’isila Matagi. The right spelling is “Ikoke”.
^[27] Applicant’s Bundle of Document, Vol.1 of 2, tab 5, BD16-18 (English version), tab 6 BD20-22 (English version) referred to also in the Affidavit of Tuisila Maluafiti (applicant) dated 5^th April 2018, attachments 7,8,9.; also referred to in Affidavit of Filisita Heather (for First Respondent), dated 18^th July 2018, annexure “B”.
^[28] The notations referred to appear on the English version of the Mixed Court decision, dated 9^th October 1882
^[29] Applicant’s Bundle of Documents Volume one of two, Tab 8 – Tab 12;
^[30] Applicant’s Bundle of Document, Volume 1 of 2, Tab 10 BD33-35
^[31] Tab 11 BD36-37
^[32] Applicant Bundle of Documents, Volume 1 of 2, Tab 15, BD55-57
^[33] Affidavit of Tu’isila Maluafiti (Applicant) dated 5^th April 2018 at pages 32-34
^[34] Applicant’s Bundle of Documents, Volume one of two, Tab23 BD:86
^[35] Applicant’s Bundle of Documents Volume 1 of 2 - Tab 1, BD:1
^[36] The decision was appealed by Tuisila Ikoke and Uo to the Supreme Court on 22 June 1895 – Tab24 BD 88 –89, Tab 25 BD 90-91; they even filed for a re-hearing on 24 July 1895 – Tab 27 BD 98-99

^[37] The Treaty of Berlin 1889 did not recognize the Mixed Court or their existence. The only other court referred to in the Treaty of Berlin is the Municipal Magistrate Court with criminal jurisdiction (Article V, s4).

^[38] Applicant’s Bundle of Documents, Volume one of two, Tab 28 BD103 - Notice in the Samoa Weekly Herald dated 14^th September 1895 (1895-09-14) reporting that the claimant’s (Peter Laban) original title was defective being at most a mortgage but by reason of transactions that occurred in 1882 and the claimant supposed that he had good title and made valuable improvements upon the property such that the Court thought that it would be inequitable now to deprive him of the island. The claim is confirmed upon payment of $400 and costs by the claimant. Accordingly, this was paid immediately but Tu‘isila Ikoke refused to accept it (Tab 31 BD 112). Letter dated 13^th November 1895 (Tab33 TU.002.018) by CJ Ide to the German Consuls General informing of the above decision.

^[39] Alii and Faipule of Laulii v Ash and Brighouse [2012] WSCA 13 at [22].^[40] According to Article 10, section 3 of the Treaty of Berlin it is the common law and equity as administered by the courts of England ‘may be so far as applicable, the practice and procedure of the Court’ that is, to apply.

^[41] Alii and Faipule of Satapuala v Attorney-General [2008] WSSC 88 where the village of Satapuala claimed that 6,000 acres of land were taken without their knowledge by the German Administration in 1894 prior to 1920.
^[42] https://justis.vlex.com/vid/limitation-act-1623-80833369.
^[43] Tu’isila v Attorney General [2021] WSSC 23 (3 May 2023) at [30]
^[44] Harris v Knight [1890] UKLawRpPro 15; [1890] 15 PD 170 (CA),