Court of Appeal of Samoa
Penaia II v Land and Titles Court [2012] WSCA 6

Case name:  Penaia II v Land and Titles Court

Citation:  [2012] WSCA 6

Decision date:  31 May 2012

Parties: 
mulitalo tialino saena penaia Ii, ututa’aloga lolo, faumuina lauvi paratiso, lua ola peni,  lua tali, all Samoan matais of Saanapu v LAND AND TITLES COURT established under the Constitution & the Land & Titles Act 1981and mulitalo kirifi, ali’imuamua esekia, ali’imuamua taua’i, lua’ilepou tavita & lua’ilepou tiKI and pula meafou, tafafuana’i ioane, taulapu tavalauina, fa’afou maufo’e, vole seke, maria laumata all Samoan matais of Saanapu and afamasaga tovaega, afamasaga palafu, pisila afamasaga, oilau fuimaono all Samoan matais of Saanapu 

Hearing date(s):  29 May 2012

File number(s): CA 07/11

Jurisdiction:  Civil

Place of delivery:  Mulinuu

Judge(s): 
Honourable Justice Baragwanath
Honourable Justice Fisher
Honourable Justice Galbraith

On appeal from: 

Order:

Representation: 
L T Malifa for appellants
D Kerslake and M Lui for first respondent 
Second, Third and Fourth Respondents Unrepresented

Catchwords: 

Words and phrases:
judgment in rem
certiorari mandamus
raison d’être of the Land and Titles Court
Magna Carta

Legislation cited:
Samoan Native Land Act and Titles Commission Order 1924
Lands and Titles Act 1976

Cases cited:
R(Cart) v The Upper Tribunal [2011] UKSC 28

Summary of decision:

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU
C.A. 07/11

BETWEEN:
mulitalo tialino saena penaia Ii, ututa’aloga lolo, faumuina lauvi paratiso, lua ola peni,  lua tali,
Appellants

AND

land & titles court
First Respondent

AND
mulitalo kirifi, ali’imuamua esekia, ali’imuamua taua’i, lua’ilepou tavita & lua’ilepou tiki
Second Respondents

AND:
pula meafou, tafafuana’i ioane, taulapu tavalauina, fa’afou maufo’e, vole seke, maria laumata
Third Respondents

AND:
afamasaga tovaega, afamasaga palafu, pisila afamasaga, oilau fuimaono
Fourth Respondents

Coram:	
Honourable Justice Baragwanath
Honourable Justice Fisher
Honourable Justice Galbraith

Counsel: 	
L T Malifa for appellants
D Kerslake and M Lui for first respondent 
Second, Third and Fourth Respondents Unrepresented

Hearing:	29 May 2012	

Judgment:	31 May 2012

JUDGMENT OF THE COURT
Introduction and result
1.	In 1931 the Land and Titles Court gave judgment on the pule (authority) over lands at Alofi and Tuugamauu and concerning the related Matai title “Mulitalo”.  The title is currently held by the first-named appellant Mulitalo Tialino Saena Penaia II to whom, together with his fellow appellants, we will for convenience refer as “Mulitalo Penaia”.  Mulitalo Penaia applied to the Supreme Court for judicial review of decisions of Trial and Appeals Division decisions of the Land and Titles Court from 1987 to 2009 which purported to alter the effect of the 1931 decision, particularly by adding other names to those entitled to select who is to become the holder of the Mulitalo Matai title.   The Supreme Court (Vaai J) struck out the application.  This appeal is against that strike-out decision.  It was supported by counsel for Mulitalo Penaia and opposed by counsel for the first respondent.
2.	Parliament has limited the extent to which the courts of general jurisdiction, being the Supreme Court and this Court, may adjudicate upon decisions of the Land and Titles Court.  We therefore considered as a threshold issue whether the Supreme Court had authority to entertain the application for review and, as a result, whether we can consider the merits of the appeal.  Having concluded that the application is barred by ouster provisions of the Land and Titles Act 1981, on 29 May 2012 we dismissed the appeal.  These are our reasons. 
The successive decisions 
The 8 September 1931 decision
3.	The issue concerning the pule over lands at Alofi and Tuugamauu and  the related Matai title “Mulitalo” was disputed between petitioners led by Afamasaga Lagolago and respondents led by Mulitalo Uelese.  The Land and Titles Court decided:
(i)	The title Mulitalo had the authority over the lands;
(ii)	The rightful holder of the title Mulitalo was Mulitalo Uelese;
(iii)	When Mulitalo Uelese ceased (by death or otherwise) to hold the title the true heirs of Mulitalo Seiuli would have authority to appoint a person to hold the title Mulitalo.  This is the decision which the present appellants claimed remains binding and should be restored.
The decisions of 10 June 1970, 17 June 1971, 28 May 1979
4.	Subsequent decisions were delivered by the Land and Titles Court on 10 June 1970, 17 June 1971 and 28 May 1979.  None affected the 1931 decision.
The challenged decisions
5.	The decisions challenged by Mulitalo Penaia are those of 1987, 2005 and 2009. 
The decision of 4 December 1987
6.	A further decision of the Land and Titles Court delivered on 4 December 1987 followed proceedings to which Mulitalo Penaia was respondent.  It purported to amend the 1931 decision by adding to those entitled heirs to appoint to the title Mulitalo persons additional to those named in the 1931 decision.
The appellate decision of 9 May 1991
7.	Mulitalo Penaia appealed against the 4 December 1987 decision.  The Appeals Division of the Land and Titles Court held, inconsistently with the 1931 decision, that the pule or authority to decide and select any holder to title Mulitalo is in both the appellants and others.  It added: “The Lower Court has purported to set aside and cancel the decision of LC 755 of 1931 as if it were sitting by way of rehearing or appeal.  The court has no power to do this.  The decision of LC 755 of 1931 still remains a decision of the court.”
The decision of 1 March 2005
8.	Mulitalo Penaia returned again to the Land and Titles Court as petitioner.  In its decision of 1 March 2005 the Court confirmed that the Mulitalo Penaia parties were heirs but rejected their claim to be sole heirs.  They filed an appeal from that decision but successfully sought adjournment of the hearing.  So the appeal has never been heard.
 The decision of 26 March 2009
9.	Mulitalo Penaia again petitioned the Land and Titles Court which on 26 March 2009 made orders:
(i)	That the title Mulitalo be conferred on Mulitalo Tialino Saena Penaia II; 
(ii)	That all heirs to meet to discuss the issues;
(iii)	Postponing hearing of the petition until after determination of the present appeal.
Decision of the Supreme Court
10.	The Supreme Court rejected submissions by Mulitalo Penaia that the challenged decisions of the Land and Titles Court infringed the Constitution and held that it had no authority to hear the application for review, which was therefore dismissed.
The jurisdiction of the courts of general jurisdiction
Legislation
The 1903 and 1924 Commissions
11.	The predecessor of the Land and Titles Court was a Land and Titles Commission originally constituted in 1903 by the Imperial German Governor.  The New Zealand administration performing the British Military Occupation in 1914 continued to administer the laws of the former German Protectorate until 1920 when the Samoa Native Land Act and Titles Commission Order was brought into force.  It was superseded by the Samoan Native Land Act and Titles Commission Order 1924 under which the 1931 decision was made.  To function as the Commission the High Court was specially constituted in accordance with the Order by the Chief Judge of the High Court as chairman and at least two European assessors, who were advised by Samoan Advisors.  The latter had no vote but were entitled to be heard on all questions within the jurisdiction of the Commission.  There was a right of rehearing on application to the Commission within three months of a decision but no right of appeal. Section 13 provided:
Every final decision of the...Commission shall be deemed to be a judgment in rem, and shall bind all Samoans who are interested therein, even though they are not parties to the proceedings.
The 1935 Commission
12.	The 1924 Order was in turn superseded by the Native Land and Titles Protection Ordinance 1934 which came into force on 1 April 1935.  It established a Court of Record again known as the Native Land and Titles Commission with the Chief Judge of the High Court as President and exclusive jurisdiction in all matters relating to Samoan names and titles and in all claims and disputes between Samoans relating to native land and the right to succession to property held under Samoan custom.  It effectively (by s58)  reproduced s13 of the 1924 Order and added:
Finality of decisions
61 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.   
The current Court
13.	The present Land and Titles Court was established by Article 103 of the Constitution which came into effect on 1 January 1962, providing it was to have such constitution and such jurisdiction as might be provided by Act.  The Lands and Titles Act 1976 provides that the President of the Court shall be the Chief Justice or a Judge of the Supreme Court or a person qualified to be Judge of the Supreme Court or a Samoan Judge (being a matai considered by the Judicial Appointments Commission to be qualified for appointment by reason of character, ability, standing and reputation).  The Court sits at first instance and on appeal.
14.	Section 34 continues to confer on the Land and Titles Court all the jurisdiction it exercised before the 1976 Act came into force and adds:
(2) 	In particular the Court shall have exclusive jurisdiction:
(a) In all matters relating to Samoan names and titles;
(b) To make orders or declarations in respect of Samoan names and titles as may be necessary to preserve or define the same,  or the rights or obligations attaching to those names and titles in accordance with the customs and usages of the Samoan race and all laws in force in Samoa with reference to customs and usages;
(c) In all claims and disputes between Samoans relating to customary land, and the right of succession to property held in accordance with the custom and usages of the Samoan race.
•	...
15.	Section 70 is an in rem provision to similar effect to s13 of the 1924 Order and s58 of the 1934 Ordinance, while s61 of that Ordinance is put into modern language by s71:
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.
16.	Both the language and provenance of ss34(2), 70 and 71 point to stringent exclusion of judicial review save to the extent permitted by the Constitution.  So too does the importance of the role of the Land and Titles Court that is recognised in the significance accorded to by the Constitution to the subject-matter of its exclusive jurisdiction, namely Matai title and customary land, each held in accordance with Samoan custom and usage and with the law relating to custom and Articles 100 and 101(2).  Moreover “law” is defined as custom and usage which has acquired the force of law in Samoa (Article 111).
17.	Even without ss 34(2), 70 and 71 there would be powerful reasons for the courts of general jurisdiction to be reluctant to intervene in disputes arising from decisions of the Land and Titles Court.  The first principle of justice is that a court be competent to decide the case.  The raison d’être of the Land and Titles Court is to provide that competence, bringing to disputes concerning Samoan custom and usage the expertise of Judges versed in such matters so they can evaluate what answer is most in keeping with the justice of the case according to Samoan values.  Such expertise can be gained only from a life-time’s exposure to Samoan culture, which in the courts of general jurisdiction may be, and in this Court, as constituted for this appeal, is wholly absent.  The recent decision of the UK Supreme Court in R(Cart) v The Upper Tribunal [2011] UKSC 28, where the courts of general jurisdiction declined save within very narrow limits to exercise judicial of a powerfully competent tribunal chaired by a member of the Court of Appeal, has obvious analogy with the Land and Titles Court whose President has the qualifications we have recounted at [13] above.  But the courts of general jurisdiction in that case did not lack, as do we, the basic linguistic and cultural skills which are possessed by the Court here sought to be reviewed.  
18.	When one adds to the analysis ss34(2), 70 and 71 the case for judicial reticence becomes overwhelming.  We are confirmed in that conclusion by decisions of the Chief Justice to that effect.
19.	It is unnecessary for us to consider whether there might be some exceptional case for which recourse might be sought in the common law.  The present case could not be characterised as entailing such breach of fundamental decencies as to raise such an issue.  So the decision turns on whether Mulitalo Penaia can point to some breach of a Fundamental Right stated in Part II of the Constitution.
Contentions and analysis
“Breach of Article 6”
20.	Mulitalo Penaia advanced two contentions.  One was that the challenged decisions of the Land and Titles Court were unlawful, as breaching ss 34(2), 70 and 71 and their predecessors in the 1934 Ordinance.  Such departure from the 1931 decision therefore unlawfully added other persons to the number of those who under the 1931 decision of the Land and Titles Court could contribute to the decision to select the Mulitalo, thus abating the rights of Mulitalo Penaia, which had previously be exclusive.  That, it was submitted, meant that in breach of Article 6 of the Constitution Mulitalo Penaia had been “deprived of...personal liberty except in accordance with law.” 
21.	But as the Constitutional Adviser, Professor Aikman, advised when he contributed to the 1960 Constitutional Debates, Article 6 concerns protection against wrongful detention of the person.  That is made clear both by the apparent meaning of the text and by the context of the following sub-clauses (2-4).  They deal respectively with court release of a person who is wrongfully detained, informing a person detained of the grounds of arrest, and bringing a detained person promptly before the court.  The broader context is of right to life (Article 5), freedom from inhuman treatment (Article 7), freedom from forced labour (Article 8), right to a fair trial (Article 9), rights under criminal law not to be convicted save of an offence defined by law and not to be retried after conviction or acquittal (Article 10), freedom of religion (Articles 11 and 12), freedom of speech, assembly, association, movement and residence (Article 13) and freedom from discriminatory legislation (Article 15).  The only Article dealing with property rights is 14 which, following the original Magna Carta, prohibits compulsory acquisition save on payment of adequate compensation.
22.	Diminution of the right to select a Matai falls neither within the language nor the policy of Part II.  That argument fails.
“Breach of Article 9(1)”
23.	The alternative contention was that there has been breach of the right to fair trial guaranteed  by Article 9(1):
In the determination of his civil rights and obligations...every person is entitled to a fair and public hearing, within a reasonable time by an independent and impartial tribunal established under the law.
24.	Mulitalo Penaia did not suggest that the challenged hearings had been other than fair and public, within a reasonable time, or that the statutory tribunal had been other that independent and impartial.  The complaint was that the decisions, having departed from the 1931 decision, infringed ss58 and 61 of the 1934 Ordinance and ss34, 70 and 71 of the 1981 Act.
25.	But for us to investigate that question would take the courts of general jurisdiction into the very examination of the Land and Titles Court which Parliament has prohibited.  The only forum in which such questions may be debated is the Land and Titles Court itself, whether at first instance or on appeal.  We offer no opinion on whether Mulitalo Penaia is able to secure relief from the Land and Titles Court on the pending appeal from the 2005 decision.  The consequence of such ouster provisions as ss34, 70 and 71 is that the Land and Titles Court may reach decisions with which the courts of general jurisdiction may disagree.  But that is the price to be paid for the benefits of the regime.
26.	We add that had the appeal not failed because of the limitations upon our jurisdiction Mulitalo Penaia might well have encountered difficulty for other reasons.  In litigation a party is often confronted with inconsistent alternative choices between which an election must be made.  Once made, the party cannot later repent of the decision and go back and select the other course.  Moreover there must not be unreasonable delay in bringing a challenge on judicial review. 
27.	Here the decisions challenged are those of 1987, 2005 and 2009.  As we have noted at [7] above, in response to the 1987 decision Mulitalo Penaia did not adopt the course of challenging it by judicial review as made unlawfully in breach of Article 9 of the Constitution.  Instead the challenge was made by appeal, in which the appellant seeks to win on the merits before the Land and Titles Court rather than by going to the Supreme Court to have the decision set aside as unfair.  The petition which led to the decision of the Land and Titles Court of 1 March 2005 was by Mulitalo Penaia and again sought to win the case on the merits before that Court rather than taking the inconsistent approach of challenging in the Supreme Court the Land and Titles Court’s treatment of the 1931 decision.  The same may be said of the petition which led to the decision of 26 March 2009.  Moreover there was delay of over two decades in finally challenging the 1987 decision in the Supreme Court and a five year delay in challenging the 2005 decision.
28.	Our decision turns however on the lack of authority of the Supreme Court and this Court to interfere with the challenged decisions of the Land and Titles Court in accordance with the policy set by Parliament.
Decision 
29	The appeal is dismissed.  Because this is the first occasion on which the Court has been called upon to determine the application of the ouster provision, the costs payable by the appellants to the first respondent are fixed at $5,000. 

Honourable Justice Baragwanath
Honourable Justice Fisher
Honourable Justice Galbraith