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Lauano v President of the Land and Titles Court [2024] WSSC 97 (11 October 2024)

IN THE SUPREME COURT OF SAMOA
Lauano & Ors v President of the Land and Titles Court & Ors; Amosa & Ors [2024] WSSC 97 (11 October 2024)


Case name:
Lauano & Ors v President of the Land and Titles Court & Ors; Amosa & Ors


Citation:


Decision date:
11 October 2024


Parties:
SALA FILI LAUANO & OTHERS, Matai of Leauva'a for and on behalf of ALII & FAIPULE OF LEAUVA'A (Applicants) v PRESIDENT OF THE LAND AND TITLES COURT, THE LAND AND TITLES FIRST COURT AND LAND AND TITLES HIGH COURT (First Respondent) & MAULOLO TAVITA AMOSA & OTHERS, Matai of Afega for and on behalf of ALII MA FAIPULE OF AFEGA (Second Respondents)


Hearing date(s):
19 September 2024


File number(s):
MISC56/24


Jurisdiction:
Supreme Court – CIVIL


Place of delivery:
Supreme Court of Samoa, Mulinuu


Judge(s):
Chief Justice Perese
Justice Tuatagaloa
Justice Sir William Young


On appeal from:


Order:
The orders of the Court are as follows:

(a) We stay execution of the judgments of the Land and Titles Court in 2018, the Land and Titles High Court of 24 March 2023 and the Land and Titles First Court of 8 March 2024. This is pending the establishment of the Land and Titles Court of Appeal and Review and its determination of Leauva’a’ s appeal.
(b) The second respondents are enjoined from taking any steps to evict those occupying the land in issue in these proceedings (meaning the intermediate land and lots 29 and 30 referred to in [10]); such order to subsist unless or until eviction orders are obtained in the District Court or Supreme Court.
(c) Leave is reserved to the parties to seek modification of the above orders or the making of any further orders.
(d) There is no order for costs.
(e) The proceedings are to be called before the Chief Justice on a date to be arranged for directions as to the disposal of all unresolved issues.


Representation:
Hon. C. Finlayson KC & J. Stowers for the Applicants
D.J. Fong & V. Leilua for the First Respondent
P. Lithgow, P. Chang & T. Toailoa for the Second Respondents
S. Ainuu for the Samoa Law Society (Amicus Curiae)


Catchwords:
Constitutional case – land dispute – occupancy – eviction orders made – ownership – jurisdictional issue.


Words and phrases:
“Land and Titles Court decisions” – “non-establishment of the Land and Titles Court of Appeal and Review”


Legislation cited:
Constitution of the Independent State of Samoa 1960, Part IX;
Constitution Amendment Act 2020, Arts. 4; 4(1); 70; 70(1); 101(1); 102; 104A-104G; 104(1); 104B; 104C; 104C(2); 104C(3); 104C(8);109;
Crimes Act 2013, s. 45;
Land and Titles Act 1981, ss. 34(1)(c); 70; 71; 74; 75; 76-89; 90;
Land and Titles Act 2020, ss., 2; 48(5)(a); 56; 57; 59; 60; 67;
Samoan Land and Titles Protection Ordinance 1934, ss. 57; 61.


Cases cited:
Lauano & Ors v Amosa & Ors [2024] WSSC 37;
Meredith Ainuu Lawyers v Muagututagata Ah Him [2006] WSSC 55;
Penaia II v Land and Titles Court [2012] WSCA 6.


Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU


BETWEEN:


SALA FILI LAUANO & OTHERS, Matai of Leauva'a for and on behalf of ALII & FAIPULE OF LEAUVA'A


Applicants


AND:


PRESIDENT OF THE LAND AND TITLES COURT, THE LAND AND TITLES FIRST COURT AND LAND AND TITLES HIGH COURT


First Respondent


AND:


MAULOLO TAVITA AMOSA & OTHERS, Matai of Afega for and on behalf of ALII MA FAIPULE OF AFEGA


Second Respondents


Coram: Chief Justice Perese

Justice Tuatagaloa

Justice Sir William Young


Counsel: Hon. C. Finlayson KC & J. Stowers for the Applicants
D.J. Fong & V. Leilua for the First Respondent
P. Lithgow, P. Chang & T. Toailoa for the Second Respondents
S. Ainuu for the Samoa Law Society (Amicus Curiae)


Hearing: 19 September 2024
Judgment: 11 October 2024


JUDGMENT OF THE COURT

Overview

  1. This is a dispute between the Alii and Faipule of Leauva’a and Afega. It concerns land currently occupied by people of Leauva’a of which most, and perhaps all, is owned by Afega. Afega is seeking the eviction of the Leauva’a people from this land.
  2. Over the last 70 years, the dispute has been much litigated before the Land and Titles Court. For ease of discussion, we use “Land and Titles Court” as including all the courts set up under the Samoan Land and Titles Protection Ordinance 1934, the Land and Titles Act 1981 (“LTA 1981”) and Part IX of the Constitution of Samoa.
  3. Before us are judicial review proceedings of recent Land and Titles Court judgments.
  4. These proceedings have generated constitutional and jurisdictional arguments revolving around (a) amendments to the Constitution effected by the Constitution Amendment Act 2000 (“CAA 2020”) and (b) the Land and Titles Act 2000 (“LTA 2020”).
  5. We decided to deal first with the constitutional and jurisdictional arguments, leaving the merits of the judicial review complaints to be dealt with later, if necessary. As a result, the core points of dispute between Afega and Leauva’a were not the subject of much argument from counsel. However, to provide a frame for what follows, it is sensible to identify, as best we can, what the areas of dispute appear to be.
  6. As far as we can see, there are three areas of dispute:
  7. The current decisions within the Land and Titles Court system in relation to all areas of dispute have been adverse to Leauva’a. But Leauva’a has an appeal to the Land and Titles Court of Appeal and Review (a Court legally established by the CAA 2020) in which it seeks to challenge these decisions.
  8. While of considerable significance to Afega and Leauva’a, these areas of dispute raise issues of a kind that the Land and Titles Court system, as now provided for in Part IX of the Constitution as inserted by the CAA 2020, should be well-placed to resolve. What has added complexity to the case are two factors:

The origin of the dispute

  1. The 1905 eruption of Mt Matavanu on Savaii destroyed the village of Lealatele. In its aftermath, the people of Lealatele, Samalaeulu relocated to Upolu. They settled on land to the west of Apia at what is now known as Leauva’a. Associated with this, some 723 acres of land was acquired from Afega by the German Administration for Leauva’a along with a further 79 acres from Levi, Sale’imoa, a neighbouring village. This was in 1912. In 1938, Leauva’a obtained by court grant a further 128 acres at Aleisa, south of the land acquired in 1912 and not contiguous with it. This is the land to which we refer as lots 29 and 30.
  2. In the course of the proceedings before us, the land acquired in 1912 was referred to generally as “the 723 acres” (despite amounting to 802 acres) and the land at Aleisa as lots 29 and 30. It is common ground that the land between the 723 acres and lots 29 and 30 is Afega’s. We will refer to this as the “intermediate land”.
  3. Since the early 1950s, there has been litigation between Afega and Leauva’a relating to the occupation and use by Leauva’a people of the intermediate land and, at least more recently (and perhaps earlier as well), lots 29 and 30. These disputes have generally been resolved by the Land and Titles Court in favour of Afega but up until the last decade, the court decisions appear to have been followed by periods during which Afega has either permitted or at least tolerated Leauva’a’s occupation and use of the land.

The Land and Titles Court system

  1. A Native Land and Titles Commission was established pursuant to the Native Land and Titles Protection Ordinance 1934 (later re-named the Samoan Land and Titles Protection Ordinance). This was a court of record consisting of a President, being the Chief Judge of the then High Court, Assessors and Samoan Commissioners. It had exclusive jurisdiction over Samoan names, titles, and native lands. Section 57 of the ordinance declared:

As well, s 61 provided:

Neither the Supreme Court of New Zealand, nor the High Court shall exercise control over the Native Land and Titles Commission (whether in respect of want of jurisdiction or otherwise) by way of appeal, certiorari, mandamus, prohibition or otherwise howsoever.
  1. The Land and Titles Commission was renamed the Land and Titles Court in 1937 and it was this institution that was referred to in article 104 of the Constitution in this way:
  2. The Samoan Land and Titles Protection Ordinance 1934 was replaced by the Land and Tiles Act 1981. Section 34(1)(c) of the LTA 1981 confirmed that the Court had “exclusive jurisdiction”:

Sections 70 and 71 provided:

70. Effect of final decision –
Subject to an appeal under Part 9, every final decision of the Court on a petition is deemed to be judgment in rem and shall bind all Samoans who are affected by it, whether parties to the proceedings or not.
71. Decisions and orders not reviewable by other Courts –
Subject to this Act, no decision or order of the Court shall be reviewed or questioned in any other Court by way of appeal, prerogative writ or otherwise howsoever.
  1. As to enforcement, ss 74 and 75 provided:
  2. There was a right of appeal (but subject to leave) to an appellate division of the Land and Titles Court. This was provided for by ss 76 – 89. Section 90 declared that the decision of the appellate division was “final”.
  3. The CAA and LTA 2020 came into effect in early 2021.
  4. The CAA 2020, amongst other things, amended article 4 and inserted new or additional provisions as arts 70, 104 and 104A-104G of the Constitution.
  5. Article 4 was amended to provide:

The amendment inserted into art 4(1) the words we have emphasised.

  1. The new art 70(1) as inserted by the CAA 2020 is in these terms:
  2. Part 1X of the Constitution consists of arts 100 – 104G.
  3. Article 104(1) of the Constitution as inserted by the CAA 2020 provides:
  4. In relation to the Land and Titles High Court, s 104B relevantly provides:
  5. Article 104C deals with the Land and Titles Court of Appeal:
  6. These constitutional provisions must be read with the corresponding provisions in the LTA 2020.
  7. Section 2 of the LTA 2020 defines “Court” as meaning:
  8. Consistently with the definition, the LTA 2020 provides separately for proceedings in the Land and Titles First Court, the Land and Titles High Court and the Land and Titles Court of Appeal and Review. Other provisions of note are sections 56, 57 and 67
  9. As to enforcement, ss 59 and 60 provide:

The Land and Titles Court of Appeal and Review has not been set up

  1. It will be recalled that under art 104C(2) of the Constitution, the Land and Titles Court of Appeal and Review is to consist of:
  2. The reason why the Land and Titles Court of Appeal and Review is not operating is that a “retired Samoan Judge of the Supreme Court or a retired President” is not currently available for appointment, with the result that it is not possible to appoint a Chairperson. The Government’s understanding seems to be that it is not legally possible to constitute the Court by appointing three members under (b), (c) and (d) and leaving the appointment of a Chairperson until someone who is both qualified and willing to accept appointment becomes available.
  3. There is scope for doubt whether this understanding is correct. Article 104C(3) provides that any three members of the Lands and Titles Court of Appeal and Review can exercise the powers of the Court. It might be thought to be reasonably arguable that the Court can lawfully be constituted with three judges pending the availability of someone who can be appointed as Chairperson. Although caution about setting up the Court on a basis that might later be challenged is understandable, the Government, if it chose to act, could draw reasonable comfort from the doctrine of necessity; this given how unsatisfactory the current situation is – with what we were told were 61 cases awaiting hearing in the Court. We will revert to this point later.
  4. Another option may also be open. We understand that amendments to the provisions introduced by the CAA 2020 are likely to be considered by the Legislative Assembly towards the end of this year. While those amendments may be controversial, not so controversial would be a simple amendment removing what it is seen (rightly or wrongly) as the roadblock preventing the setting up of the Land and Titles Court of Appeal and Review

The decisions of the Land and Titles Court

  1. The most significant aspect of the dispute for present purposes concerns ownership of Lots 29 and 30. On our site inspection it was clear to see that the land bordered land owned by the Catholic Church and stretched to the boundary of a line recognised as the boundary of the 723 acres. But lots 29 and 30 do not cover all of the area between the Catholic land and the 723 acres.
  2. The people of Leauva’a rely on Certificates of Customary Land that claim these lots are customary lands owned by Leauva’a and are capable of being leased. We do not know how these Certificates came into existence, other than that this apparently resulted from a court grant. The people of Afega reject the Leauvaa position arguing that they own the land described as Lots 29 and 30, as well as the intermediate area of land immediately behind the 723 acres.
  3. The decisions of the Land and Titles Court that are primarily relevant to this aspect of the underlying are those decided in or after 2013. It is, however, appropriate to refer briefly to the earlier judgments:
  4. The decisions of the Land and Titles Court just discussed do not explicitly address ownership of lots 29 and 30. That said, we accept that close analysis of the decisions may show that one or more of them can be taken to have dealt by implication with ownership of these lots. However, given the lack of clearly directed discussions on the “ownership” rights arising under the Certificates, we are not sure that issues of natural justice were adequately addressed.
  5. In 2013, the Land and Titles Court rejected a petition by families of Leauva’a and Tuana’i which challenged ownership of the land behind the 723 acres. In its decision, it ordered all Leauva’a people who were using or occupying the land to leave by 31 December 2013. There was no explicit reference to lots 29 and 30 or to the title to that land held by Leauva’a.
  6. In a decision delivered on 15 September 2017, the appellate division of the Land and Titles Court dismissed an appeal from the 2013 decision save that it set aside the eviction order. Its reason for doing so was that such an order had not been sought at first instance. This judgment concerned land at Vaialia, Sigamea and Leualesi claimed by Leauvaa and Tuana’i to be theirs and not Afega’s. It notes:
  7. In December 2018, the Land and Titles Court ordered the eviction of 18 Leauva’a people from the land they occupied outside of the 723 acres. In doing so, it noted an argument presented to it along the line that the 2017 decision operated as a res judicata precluding a claim for eviction. The Land and Titles Court rejected that argument, noting that the appellate court had, in its 2017 decision, set-aside the eviction order on a process ground, namely that eviction had not been sought in Afega’s petition. The judgment does not specifically address Leauva’a’s title to lots 29 and 30 but given what happened on appeal (which we are about to discuss) it is likely that it did so at least by implication.
  8. An appeal against that decision was dealt with by the newly constituted Land and Titles High Court. The judgment of that Court was delivered on 24 March 2023. It upheld the 2018 decision. The reasons given include a rejection of evidence of a court grant, which we take to be the 1938 grant of lots 29 and 30 to Leauva’a. The Court considered that this evidence was not new. From this we infer that it was of the view that the judgment of 2018 and presumably the earlier judgments encompassed lots 29 and 30.
  9. Leauva’a appealed to the Land and Titles Court of Appeal and Review.[1] Its application for a stay of the judgment of 24 March 2023, pending the hearing of its appeal by the Land and Titles Court of Appeal and Review, was dismissed by the President of the Land and Titles Court in a judgment delivered on 22 December 2023. The President was of the view that a stay of the judgment of the Land and Titles High Court could only be granted by the Chairperson of the Land and Titles Court of Appeal and Review under s 48(5)(a) of the LTA 2020. However, the President also referred to what he saw as only recent attempts by Leauva’a to rely on the 1938 grants in relation to lots 29 and 30 – attempts, which he considered to be precluded by the prior judgments of the Land and Titles Court.
  10. In a judgment delivered on 8 March 2024, the Land and Titles Court delivered a majority judgment directing the eviction of the Leauva’a people occupying Afega’s land (which in the opinion of the Court included lots 29 and 30). One Judge dissented in relation to those who were residing on lots 29 and 30.[2] The basis of the dissent is set out in paras 10, and 12 – 14 of the dissenting decision. The Judge focussed on whether all or some of the 18 families sought to be removed resided on lots 29 and 30. He says that some of them do and because the MNRE records show these lands are Leauva’a’s customary lands he dissented from making the order for eviction.
  11. What we have is a clash of interests. Afega argues that it owns all the land behind the 723 acres (including lots 29 and 30) up to the Catholic land. Leauva’a on the other hand point to their ownership of lots 29 and 30 pursuant to the MNRE records and the Court Grant. This issue is live in the appeal to the Land and Titles Court of Appeal and Review. But, because that Court has not been constituted, it is not presently able to be resolved.

Attempts to enforce the Land and Titles Court decisions

  1. Despite not having sought enforcement orders in the District Court or Supreme Court under s 59 of the LTA 2020, Afega attempted to evict Leauva’a people from the land in dispute.

The Supreme Court intervenes

  1. In response to the eviction attempts, Leauva’a sought an interim injunction in the Supreme Court. This was in the context of anticipated judicial review proceedings to challenge the 2018 and subsequent decisions of the Land and Titles Court. These proceedings were filed a few days later.
  2. The application for an interim relief was heard by the Chief Justice on 4 April 2024. At the conclusion of that hearing he granted an interim injunction precluding eviction and, in a judgment delivered on 9 April 2024, he continued that interim injunction.[3] The Chief Justice concluded that, despite the amended art 4(1) of the Constitution and the LTA 2020, there was an arguable case that the Supreme Court had jurisdiction to grant relief by way of judicial review. His reasons for so concluding were relevantly:

He also concluded that the balance of convenience and the overall interests of justice lay on the side of granting an interim injunction.

What happened next

  1. Afega adopted the position that the Supreme Court had no jurisdiction to interfere with the judgments in their favour in the Land and Titles Court and that they could, accordingly, ignore the orders made by the Chief Justice. Some Afega people did not comply with those orders and continued to attempt to evict the Leauva’a people from the land in dispute. This resulted in contempt of court proceedings. The result was compliance with the orders made by the Chief Justice.

The issues for us

  1. The case raises the issue whether the exclusion of the jurisdiction of this Court in relation to judgments of the Land and Titles apparently effected by the CAA 2020 is invalid. Also, in issue is whether in the particular circumstances of this case (which include the non-establishment of the Land and Titles Court of Appeal and Review), this Court may nonetheless intervene.
  2. We consider that we can resolve the case on a basis that, at least in the meantime, does not require determination of the first of issues just identified. This is because we are satisfied that the non-establishment of the Land and Titles Court of Appeal and Review creates a gap in the legislative (and constitutional) scheme which this Court may and should address. It is, however, nonetheless appropriate to discuss briefly the first issue.

Is the exclusion of the jurisdiction of this Court in relation to judgments of the Land and Titles apparently effected by the CAA 2020 invalid?

Privative clauses

  1. Legislatures frequently enact provisions that purport to prohibit courts of general jurisdiction (such as this Court) reviewing decisions of particular decision-makers. These are often called privative clauses. Courts of general jurisdiction tend to look with scepticism at arguments based on privative clauses. The reason for this is straight-forward. The powers of such decision-makers are always limited by legislation or the common law, by way of examples, as to the subject matter of their jurisdiction, the processes they must follow or the criteria they have to apply. There is a tension between the usually carefully drafted limitations on the powers of decisions-makers and the idea that such decision-makers are nonetheless exempt from scrutiny if they go outside those limitations.
  2. Sections 70 and 71 of the LTA 1981 were orthodox privative clauses as were the provisions of the Samoan Land and Titles Protection Ordinance (ss 57 and 61) from which they were derived. Up until the CAA 2020 came into effect, the practice of the Samoan courts was to respect the spirit of such provisions but not necessarily to apply them literally. This is apparent from Penaia II to which we have already referred.

The validity and rule of law implications of the limitations of this Court’s jurisdiction apparently effected by the CAA 2020

  1. The provisions of the CAA 2020 in issue in this case are not orthodox private clauses. This is because they can be seen as an attempt to create a system of justice in relation to customary land and titles that operates in parallel with the Supreme Court and Court of Appeal. This raises rule of law issues that are both constitutional and practical.
  2. Article 109 of the Constitution provides:
  3. Article 102 relates to the alienation of customary land. So, the proviso was not engaged by the CAA 2020. Its common ground that the CAA 2020 was enacted in a way that met the requirements of art 101(1). So, there is no basis for a validity challenge based on process grounds.
  4. In his argument for Leauva’a, Mr Finlayson KC took us to a substantial body of authority which support the view that powers of constitutional amendment like those provided for in art 109 do not permit amendments that alter the basic structure of a constitution and that, for these purposes, the basic structure of a constitution can extend to the adjudicative functions of courts of general jurisdiction.[5]
  5. If we had to determine whether Mr Finlayson’s argument is right, it would be necessary to take into account not only the judgments he relied on but also some countervailing factors, including some that are specific to Samoa, including:
  6. As will be apparent, the constitutional argument raised by Mr Finlayson raises profound issues. This Court would not shirk resolving those issues if this was necessary to determine the proceedings before us. But because there is a more straight-forward and less constitutionally challenging route to what we see as a just solution, we propose to leave resolution of these issues for an occasion on which it is required.
  7. Before we depart from this subject, it is appropriate to note that, irrespective of the legal merits of Mr Finlayson’s argument, there are practical and tangible ways in which the CAA 2020 has already damaged the rule of law. No matter how skilfully a legislature might define what are intended to be the exclusive roles of parallel court systems, it is inevitable that some situations will arise where there may be conflicting court orders. This is illustrated by what has happened in this case, with the Land and Titles Court directing eviction but this Court preventing such eviction taking place. That there should be conflicting court orders is highly unsatisfactory.

The non-establishment of the Land and Titles Court of Appeal and Review creates a gap in the legislative (and constitutional) scheme which this Court may and should address

Setting the scene

  1. The constitutional limitation on the jurisdiction of the Supreme Court in art 4 of the Constitution is confined to “judicial review matters arising from the proceedings in Part IX Land and Titles Courts” and applies only in relation to enforcement of fundamental rights conferred by Part II of the Constitution.
  2. What for present purposes, may be the more significant of the constitutional provisions inserted by the CAA 2020 is art 70(1). Its apparent effect is that the operation of the Land and Titles Court and the law relating to customary land and titles lie outside the jurisdiction of the Supreme Court. This provision therefore goes a considerable way towards creating parallel court systems, with law as to land and titles and the operation of the Land and Titles Court lying outside of the purview of this Court. The reality, however, is that two court systems within the same jurisdiction can never operate completely in parallel. And, at least when it comes to enforcement of Land and Titles Court orders, the concept of completely parallel court systems breaks down.
  3. The Land and Titles Court does not have the power to enforce its own decisions. This was the conclusion reached by Sapolu CJ in relation to the LTA 1981 in Meredith Ainuu Lawyers v Muagututagata Ah Him.[6] His judgment was premised of provisions of the LTA 1981 that have been carried through to the LTA 2020. We see it as still good law.
  4. Relevant at this point is s 45 of the Crimes Act 2013. It provides:

What this means is that declarations of ownership and possession made by the Land and Titles Court in favour of Afega did not authorise Afega’s attempts to take possession by force of the disputed land. Eviction of the Leauva’a people can only lawfully be achieved pursuant to orders made in either the District Court or Supreme Court under s 59 of the LTA 2020.

  1. At this point it is right to acknowledge that, from the point of view of Afega, it was the obligation of Leauva’a to comply with the most recent Land and Titles Court decisions and that in not doing so, it was in breach of s 60 of the LTA 2020. So, at this point, it is appropriate, to discuss briefly what constitutes a “decision or order” of the Land and Titles Court for the purposes of ss 59 and 60.
  2. When eviction orders are sought under s 59 or there is a prosecution under s 60, the District Court and Supreme Court must necessarily engage with the law as to customary land and the operation of the Land and Titles Court. In the ordinary course of events, such engagement will be limited. Section 59 is expressed in mandatory terms and it is not for the District Court or Supreme Court to engage with the merits of the Land and Titles Court judgment of which enforcement is sought. And similar considerations apply to a prosecution under s 60. But situations may arise where there is a genuine question whether a decision or order of the Land and Titles Court is one that, within the scheme and purposes of the constitutional and legislative scheme as a whole, must be enforced. Such a question must be addressed by the District Court or Supreme Court. It is at this point that the parallel court systems envisaged by the CAA 2020 come into contact with each other. We revert to this shortly.

Constitutional limitations on the jurisdiction of the Supreme Court presuppose an operational Land and Titles Court of Appeal and Review

  1. The amendments to the Constitution effected by the CAA 2020 are best seen as a package. With the non-establishment of the Land and Titles Court of Appeal and Review, the checks and balances that were the quid pro quo for limiting the jurisdiction of the Supreme Court are not in place. Taking the Supreme Court out of play but without the replacement envisaged by the Constitution being in place would lie outside the constitutional purposes of the amendments effected by the CAA 2020. Against that background, we construe the limitations imposed by the CAA 2020 on the jurisdiction of this Court as subject to the full implementation of the constitutional changes and therefore not fully in effect until the Land and Tittles Court of Appeal and Review is operational. There being no Land and Titles Court of Appeal and Review to protect the legal rights of those involved in disputes in the Land and Titles Court in the manner envisaged by the CAA 2020, this Court must do so itself, if such action is necessary to protect those rights.
  2. To be more specific, Leauva’a have a right of appeal to the Land and Titles Court of Appeal and Review. As part of that right, they have the right to seek from the Chairperson of that Court interlocutory relief by way of a stay of the 2023 judgment of the Land and Titles High Court. Implicit in those rights is the further right not to face eviction action without being able to go to the Land and Titles Court of Appeal and Review. All of these rights have been denied by the non-establishment of the Land and Titles Court of Appeal and Review. If those rights are to be respected, this Court must intervene – which we propose to do.
  3. Such intervention should be carefully tailored to ensure the maximum consistency with the scheme of the amendments effected by the CAA 2020. In this context, a stay of the judgments of the Land and Titles Court in 2018, the Land and Titles High Court of 24 March 2023 and the Land and Titles First Court of 8 March 2024 represents an outcome to this litigation that, as compared to other possible outcomes, is the most congruent with the scheme of the 2020 constitutional amendments. Any outcome that falls short of that would not be consistent with the rights of Leauva’a that we have set out in [66]. But any attempt on our part to analyse the rights and wrongs of the underlying dispute would be contrary to the scheme of the 2020 constitutional amendment under which these rights and wrongs are to be determined by the Land and Titles Court of Appeal and Review, once it is constituted.

An alternative approach

  1. There is an alternative route to what in substance is the same result, but which does not involve suspending the operation of the limitations of this Court’s jurisdiction pending the setting up of the Land and Titles Court of Appeal or indeed the formal staying of the judgments of the Land and Titles Court in 2018, the Land and Titles High Court of 24 March 2023 and the Land and Titles First Court of 8 March 2024.
  2. As we have noted, when enforcement of a decision or order of the Land and Titles Court is sought in the District Court or Supreme Court, the Judge dealing with the application may be required to address whether the Land and Titles Court decision is one which is required to be enforced.
  3. Article 104C(8) declares decisions of the Land and Titles Court of Appeal and Review to be final. There is no similar provision in respect of the Land and Titles First Court or the Land and Titles High Court. The primary relevance of finality in this context is that it means that there is no right of appeal. Because decisions of the Land and Titles First Court and Land and Titles High Court are subject to appeal, they are not, in this sense, final. However, as we now explain, when it comes to enforcement of Land and Titles Court decisions, we are inclined to think that finality (or its absence) has additional significance.
  4. There is presently an appeal to the Land and Titles Court of Appeal and Review that is undetermined and no Chairperson of that Court to whom an application for a stay can be made, for a stay. Enforcement of the judgments of the of the Land and Titles Court in 2018, the Land and Titles High Court of 24 March 2023 and the Land and Titles First Court of 8 March 2024 despite the denial of the practical exercise by Leauva’a of its rights to appeal and seek a stay would be inconsistent with scheme and purpose of the CAA 2020 and LTA 2020. It would therefore be inconsistent with that scheme and purpose to hold that those judgments are decisions or orders that must be enforced. .
  5. It follows that neither the District Court nor the Supreme Court should grant enforcement orders in relation of the judgments of the Land and Titles Court in 2018, the Land and Titles High Court of 24 March 2023 and the Land and Titles First Court of 8 March 2024. This is for two reasons:
  6. The same reasons apply to the operation of s 60. In other words, the judgments of the of the Land and Titles Court in 2018, the Land and Titles High Court of 24 March 2023 and the Land and Titles First Court of 8 March 2024 are not “decisions or orders” for the purposes of s 60.

Where we get to

  1. In the course of argument, the possibility of a stay along the lines proposed in [67] was put to counsel for Leauva’a and Afega and they were given the opportunity to comment. So, although a stay was not amongst the relief sought in the pleadings and, as well, represents a more conclusory outcome to the proceedings than was contemplated when we decided to deal with the constitutional and jurisdictional issues first, we think, at least provisionally, that there is no breach of natural justice by dealing the matter on that basis. But to avoid the possibility that proceeding on this unpleaded basis may have inadvertently resulted in injustice, we reserve leave to the parties to apply to modify the orders made and/or seek additional orders.
  2. Attempts to evict Leauva’a people from the disputed land would breach s 45 of the Crimes Act and can only be effected pursuant to enforcement orders in the District Court or this Court. The effect of this judgment is that such enforcement orders will not be made. As well such eviction would breach rights which Leauva’a claims, which have not yet been finally disposed of in the Land and Titles Court system and which we must accept as being arguable. In place of the existing interim injunction, we grant a final injunction in the form set out below.
  3. We make no order for costs. We see this as best reflecting the reality that the fundamental problem here is not the fault of either side but is rather a consequence of the Land and Titles Court of Appeal and Review not being set up.
  4. This judgment does not resolve all issues that have been pleaded. To this end, the proceedings are to be called before the Chief Justice on a date to be arranged for such directions as to the complete disposal of the proceedings as may be appropriate.

Additional comments

  1. Our judgment is very much of a holding nature, preserving the current situation until there can be an orderly resolution of the dispute according to law. As a corollary of that, we think it would not be appropriate, pending that resolution, for Leauva’a to take any steps to further develop the land in dispute beyond the regeneration of their crops that were destroyed by the earlier eviction attempts. Any issues as to this can be resolved by application under the leave to apply that is reserved in the formal orders of the Court.
  2. We recognise that this judgment may have implications in relation to the many other cases that are awaiting a hearing in the Land and Titles Court of Appeal and Review. We see no point in trying to resolve those implications at this time. However, the obvious potential further complex and perhaps controversial litigation emphasises the importance of that Court being set up as soon as possible.

The orders

  1. The orders of the Court are as follows:

CHIEF JUSTICE PERESE
JUSTICE TUATAGALOA
JUSTICE YOUNG


[1] We note in passing a contention by Afega that the appeal was out of time. This contention was based on arguments that revolved around a reference in the appeal document to the 2018 judgment of the Land and Titles Court. The appeal, in substance, is addressed to the Land and Titles High Court judgment of 24 March 2023 and we did understand that it was suggested that in this respect it was out of time, In any event any time issues can be dealt with the Land and Titles Court of Appeal and Review, if necessary, by resort to its revisional jurisdiction.

[2] The dissent was also in relation to anyone residing on freehold land belonging to the Catholic Church, but the arguments addressed to us did not suggest that there was anyone in that category.
[3] Lauano & Ors v Amosa & Ors [2024] WSSC 37.
[4] Penaia II v Land and Titles Court [2012] WSCA 6.

[5] The cases he cited included the judgments of the Supreme Court of Pakistan in Mahmood Khan Achakzai v Federation of Pakistan PLD 1997 SC 426 and of the Supreme Court of India in Chandra Kumar v Union of India AIR 1997 SC 1125.
[6] Meredith Ainuu Lawyers v Muagututagata Ah Him [2006] WSSC 55

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