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Alailima v Esera [2008] WSCA 6; CA 11 of 2007 (19 September 2008)

IN THE COURT OF APPEAL OF SAMOA
HELD AT APIA

CA11/07

BETWEEN:

LEIATAUA AMITUANAI VAIAO ALAILIMA
of Vaivase and Salani, Farmer.
Appellant

AND:

FUIMAONO RIMONI ESERA
of Alafua and Salani, Farmer.
Respondent

Coram: The Honourable Justice Baragwanath
The Honourable Justice Slicer
The Honourable Justice Fisher

Hearing: 17 September 2008

Counsel: R Drake for Appellant
T R S Toailoa for Respondent
R Wendt for Attorney General

Judgment: 19 September 2008

JUDGMENT OF THE COURT

Introduction

1. As between the appellant and the respondent this appeal concerns the validity and construction of a licence or permission by agreement for the use of land and its claimed abandonment by an occupant. Indirectly it touches the status of that land and the right of the village to determine both use and occupation. The appellant claims a life interest or tenancy whilst the respondent claims rights of occupancy through abandonment and entitlement given by a lawful entity. Since the land is public land no issue of customary land holding is raised by these issues. But it is now common ground that because no effective decision concerning rights in relation to public land can be made without service of the Attorney General as a party. Since that did not occurred in the Supreme Court there must be an order under rule 25 of the Court of Appeal Rules directing having trial.
   

Background Facts

2. In 1928 the then Samoan administration made a limited grant or licence of 18500 acres to the people of the District of Falealili. It did so on the ‘guise’ of a gift subject to enforceable conditions stating its purpose to permit people of the District to:
   

"... have the full use of the lands free of any charge and the Alii and Faipule are directed to allocate these areas wisely and well to Matai and Taulelea, so that each Samoan in that district has an acre of land to cultivate for himself."

The allocation was subject to conditions recorded in 1931 namely:

1. The control of the land and the decision of all questions connected with it remains with the Administrator.
   
2. Subject to the conditions herein contained the use of the land is given to the people of the Falealili District.
   
3. The district is to appoint a committee to advise the Administrator as to the disposal of the land and to assist him in his control.
   
4. The committee will advise what land is required by each village from time to time. Such land may be allotted to villages, and defined by compass survey when convenient and plans prepared of land allotted accordingly.
   
5. Land required for roads, educations, public health, recreation ... or for any other public purpose, are reserved by the Administrator and may be taken out of the land subject to this gift at any time, and whether before or after allotment. The Committee will advise as to such reserves being required whenever necessary.
   
6. In the case of any dispute or question of any kind arising as to the land or its use the Administrator may refer such dispute either to the High Court or the Land and Titles Commission at his discretion.
   

3. The Administration did not divest itself of ownership of land which remained what s.101 of the Constitution now calls "public land". In 1955 the village council of Salani purported to grant the appellant permission to occupy and cultivate 1000 acres of the 1928 allocation for a period of 5 years. The permission signed by matai of the village was in the terms:

"According to the custom of the Samoan people we, the Council of matai of the village of Salani, hereby grant to our native son, Vaiao J. Alailima, a portion of our village land under the following conditions:

1. For a period of five years our son shall have sole right to clear and develop one thousand acres of land lying immediately- north of a line running from the junction of the Fagatoloa River and the dry creek (Sauva’a) due west as far as Tasa Creek. At the end of this period land not developed shall revert to the Council of Matai.
   
2. Our son shall have exclusive right to the produce of this land for the period of his lifetime.
   
3. In event of the death of our son, his designated heirs shall have first preference to this land so long as it is kept in active use.
   

4. In June 1956 the Administration through its High Commissioner, upon the recommendation of the Falealili Land Committee offered to the Appellant a lease over 250 acres of the 1955 allocation to him for a period of 20 years to commence as and from 1 January 1956 with the first five years to be rent free. The appellant did not accept the terms of the lease.

5. By 1960 the appellant had cleared 250 acres of the area later being identified as parcels 51 and 52 on Plan 4225 L comprising 128 acres 3 roads 18.4 perches and 121 acres O roads and 11.4 perches respectively. Parcel 52 only is the subject of this appeal. By 1957 evidence showed that the appellant had developed the land productively growing and taro, banana, vegetables and cocoa. The remaining land marketing remained undeveloped. On 12 October 1977 the appellant attempted to register his holding of 250 acres. Nothing seems to have come of this. On 29 November 1977 the Secretary of the Department of Lands and Survey and Land Registration Office replied to the request of 12 October advising in part

" ... I also wish to advise you that the sub-committee of the Land Board endorsed the confirmation by the present Falealili Land Committee of this 250 acres allotted to you by the Falealili Land Committee back in 1956.

Arrangement has now been made with the Senior Surveyor of the Lands and Survey Department to survey this area of land. In the meantime, negotiations had been carried out with the Attorney General’s office regarding renewal of your lease and the rentals that should be paid by you. I will write to you again about this.

6. In 1984/5, the precise date is uncertain, the respondent approached the appellant requesting permission to gain, as a right of way over Parcel 52, access to his own land adjoining the southern boundary. The appellant acceded and assuming his own land to be held through customary title granted an easement in the terms:
   

" Whereas the grantor has the pule over or otherwise entitled to the exclusive occupation of that customary land situated on the District of Falealili being part of the grantor’s plantation called ‘lafulema’ (hereinafter called the servient tenement ..."

7. At about the same time the son of the appellant, who has managed the plantation left for American Samoa and did not return, and its cultivation and maintenance ceased. It soon returned to its natural state. The appellant no longer, in the words of the 1955 permission ‘cleared developed or produced from the land’. The learned primary judge found that he had ‘abandoned’ the allotment.

Discussion

8. Since some of the issues raised concerned the public interest, this Court gave notice to the Attorney General of the appeal. The Attorney appeared through counsel as amicus curiae. The position adopted by the State affects the interests of both parties. The State of Samoa claims the right to deal with the land through its statutory entity the Government Land Board. It proposes to set aside a substantial portion of the 18500 acres for the purposes of the villages of Falealili which includes Salani. It has, through its statutory agency, dealt with portion of land by lease, registered Vol 6 Folio 151, to Samoa Tel Number 2313L. But it regards Parcel 52 which is the subject of this appeal as ‘government land’ and proposes to deal with it separately from any allocation to the village of the district. This proposal raises the fundamental issue of the provenance of the initial ‘grant’ of the 18500 acres.

9. The learned judge of first instance adverted to this possibility in his reasons for judgment at pp 14 – 15. The parties recognise the import of the wide issue and this court has been advised that a meeting of the respective villages will shortly be held to decide their response to the government proposal. It is for this reason that this case ought be remitted to the primary court. The matter here has been subsumed within a wider issue.
   
10. The parties will identify those relevant issues on remission and the matter dealt with by joinder of the Attorney General and appropriate further pleadings as directed by the Supreme Court. It is the responsibility of the parties, subject to the direction of that Court, to identify the issues. It is for this reason that the matter is remitted to the Supreme Court, without further direction from this court.
    

Honourable Justice Baragwanath
Honourable Justice Slicer
Honourable Justice Fisher