IN THE COURT OF APPEAL OF SAMOA
Lands and Titles Court & Anor and Taimalelagi Naotala & Ors v Moananu Fanolua [2020] WSCA 6

Case name: 	Lands and Titles Court & Anor and Taimalelagi Naotala & Ors v Moananu Fanolua	
		
Citation: 	[2020] WSCA 6	
		
Decision date: 	2 September 2020	
		
Parties: 	LAND AND TITLES COURT and APPELLANT DIVISION OF THE LAND AND TITLES COURT (First Appellants) AND TAIMALELAGI NAOTALA, TUPUIVAO NAOUPU. SINAPIOA JOYCE AND TAIMALELAGI TIATIA (Second Appellants) v MOANANU FANOLUA (Respondent)	
		
Hearing date(s): 	6 August 2020	
		
File number(s): 	CA 39/19 and CA 1/20	
		
Jurisdiction: 	CIVIL	
		
Place of delivery: 	Court of Appeal of Samoa, Mulinuu	
		
Judge(s): 	Honourable Chief Justice Perese
Honourable Justice Fisher		
Honourable Justice Harrison	
		
On appeal from:	Supreme Court of Samoa, Mulinuu	
		
Order:	The appeals by both the first and the second appellants are dismissed. 
The first appellants must pay the respondent costs in the sum of $5,000. 
We accept that the second appellants were reacting to a lead shown by the first appellants. There will be no order for costs against the second appellants.	
		
Representation: 	S Ainuu and T Peniamina for first appellants
T Fagaloa for second appellants
T Leavai for first respondent	
		
Catchwords: 	Originally a Land and Titles Court matter – customary land – land dispute	
		
Words and phrases:		
		
Legislation cited:	Compare High Court Rules 2016 (NZ) r 11.8A;
Constitution of the Independent State of Samoa, Article 9;
Supreme Court (Civil Procedure) Rules 1980, Rule 70.	
		
Cases cited:	AQM Ltd v Westfield Holdings Ltd [2009] WSSC 17; 
CED Distributors (1988) Ltd v Computer Logic Ltd (in receivership)(1991) 4 PRNZ 35, 41 (CA);
Couch v Attorney-General [2008] NZSC 45;
Enosa v Samoa Observer Company Limited [2005] WSSC 6; 
Gartside v Sheffield Young & Ellis [1983] NZLR 37 (CA); 
Lavea v Kerslake [2015] WSCA 3;
Lautogia v Appellate Division of Land and Titles Court [2016] WSCA 13;
Penaia II v Land and Titles Court [2012] WSCA 6;
Practice Note [1968] NZLR 608;
Southern Ocean Trawlers Ltd v Director General of Agriculture and Fisheries [1993] 2 NZLR 53, 62 (CA).	
		
Summary of decision:		

CA 39/19 and CA 1/20

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

BETWEEN:

LAND AND TITLES COURT and APPELLANT DIVISION OF THE LAND AND TITLES COURT

First Appellants

AND:

TAIMALELAGl NAOTALA, TUPUIVAO NAOUPU, SINAPIOA JOYCE AND TAIMALELAGl TIATIA

Second Appellants

AND:

MOANANU FANOLUA

Respondent

Court:		Honourable Chief Justice Perese
		Honourable Justice Fisher		
		Honourable Justice Harrison

Hearing: 	6 August 2020

Counsel:	S Ainuu and T Peniamina for first appellants
T Fagaloa for second appellants
		T Leavai for first respondent

Judgment: 	2 September 2020

JUDGMENT OF THE COURT
Introduction
1. 	This appeal is about the very limited circumstances in which a Court can grant a defence application to strike out proceedings in advance of a trial. 
2. 	There was a land dispute between the second appellants and the respondent. The first-named first appellant (the “LTC”), and its appellate division (the “ADLTC”), found for the second appellants. The respondent challenged the decisions in the Supreme Court. The first and second appellants applied to strike out the Supreme Court proceedings. The Supreme Court dismissed the appellants’ application. From that decision the first and second appellants have appealed.
Brief Facts
3. 	At Fuailolo’o, in the village of Mulifanua, there were two adjoining customary lands. One was known as Faimata. Faimata belonged to the title Moananu of which the respondent is the paramount chief. The adjoining land was known as Fogalefue. It belonged to the title Tupuivao which is represented in these proceedings by the second appellants.
4. 	The respondent and his family live in a house in the area formed by Faimata and Fogalefue. There has been a long-running dispute over the location of the boundary between the two. The respondent says his house is located solely on Faimata. The second appellants say it is located on Fogalefue.
5. 	The second respondents brought matters to a head by filing a petition in the LTC. The petition sought an order evicting the respondent. The LTC heard the petition on 7 April 2016, held a site visit on 22 April 2016 and gave its decision on 6 May 2016. It decided against the respondent. It based its decision on a survey plan disputed by the respondent. The respondent’s application for leave to appeal to the ADLTC was dismissed in its decision of 3 March 2017. 
Proceedings in the Supreme Court
6. 	The respondent’s originating notice of motion in the Supreme Court stated that it was grounded on breaches of Article 9 of the Constitution in the following respects:
•	The First Respondents did not act impartially when it heard the petitions 10876 P29-30, dated 6 May 2016; and Appeal decision LC 10876 p29-30, dated 3 March 2017;
•	The decisions by the First and Second Respondents were based to a considerable extent on evidence that was improperly obtained
7. 	Although not expressed in orthodox judicial review language, we take these grounds to allege (i) bias on the part of the first appellants and (ii) denial of an opportunity to be heard in relation to some of the evidence on which the first appellants relied. 
8. 	In support the respondent filed an affidavit which among other things said:
	11. I was therefore very surprised when the Lands and Titles Court produced a Survey Plan during the 2016 case which showed that Lot 1 in Plan 11481 was ‘Fogalefue’ rather than ‘Faimata’.
	12. WHAT the plan above shows is that the land I know as Faimata has now become Fogalefue which is false and fabricated.
	13. THE worst thing about the plan was that the applicants of the Plan was none other than the Land and Titles Court! The Land and Titles Court with all due respect have no knowledge about the lands of Fuailolo’o Mulifanua. They are not competent to understand our traditional lands and their boundaries.
	14. GIVEN that they were the applicants for the survey of the land, surely they would have to apply it and that is exactly what has happened. The decisions of both 2016 and the appeal matter of 2017 are based on a Plan that is completely false. The Court had been ill-advised and its decision had been based on evidence that was not only improperly obtained but false
9. 	The appellants responded by filing a motion to strike out the respondent’s Supreme Court proceedings. The appellants filed an affidavit by the Assistant Registrar of the LTC in support. The affidavit produced relevant LTC records and summarised the Assistant Registrar’s view as to their effect. Among other things the LTC records were said to show a history of delay on the respondent’s part in seeking a survey of his own. 
10. 	The motion to strike out was heard before Justice Tuatagaloa. She dismissed the appellants’ motion to strike out, saying:
	The Court has jurisdiction to entertain the applicant’s motion for judicial review based on the principle of natural justice or procedural fairness which in my view is embodied in the right to a fair hearing pursuant to Article 9. But whether that motion will actually succeed depends on the outcome of the hearing when the Court hears further submissions and considers all the relevant circumstances
The Appeal
11. 	The appellants advanced six grounds of appeal. 
12. 	The first was that the Supreme Court does not have jurisdiction to review LTC decisions unless there has been a breach of a constitutional right. It is unclear why this was advanced as a ground of appeal. It is surely beyond argument. In a case like this one a plaintiff must show a breach of Article 9 of the Constitution. There would be such a breach if a plaintiff could show a denial of the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal. That was precisely the approach taken by Justice Tuatagaloa. She dismissed the application to strike out for the very reason that the respondent was relying on an alleged breach of Article 9.  The Supreme Court has jurisdiction to determine that issue. 
13. 	The second ground of appeal alleged an omission in the Judge’s description of the factual background. The Judge had mentioned two relevant LTC decisions. The appellants complain that she did not mention four more. This could not possibly have a bearing on the appeal. 
14. 	The third ground of appeal was that the Judge had erroneously approached the matter on the assumption that the principle of natural justice or procedural fairness was embodied in the right to a fair hearing pursuant to article 9 of the Constitution. We agree with the Judge. 
15. 	The fourth and fifth grounds of appeal were that the respondent’s factual allegations were inconsistent with the records of the LTC. We will discuss this at greater length. The sixth ground of appeal was a repetition of those that had gone before. 
Inconsistency between respondent’s allegations and LTC records
16. 	The LTC records produced by the appellants are confined to transcripts of a hearing before the LTC on 7 April 2016, a site visit on 22 April 2016, an LTC decision on 6 May 2016, a hearing before the ADLTC on 10 February 2017 and a decision from the ADLTC on 3 March 2017.
17. 	The transcripts include the respondent’s evidence that for years he had been asking the LTC to carry out a survey of Faimata without receiving any satisfactory response. The transcripts also indicate that at one point the LTC authorised, or carried out, a survey on a basis with which the respondent did not agree. 
18. 	We expect that at trial these transcripts will be analysed in proper detail along with those earlier LTC records yet to be produced. As Justice Tuatagaloa said, there may need to be evidence from the surveyors involved. Also important will be the source and nature of the instructions given to the surveyors. There is also a mysterious letter of 5 July 2016 from the Ministry of Natural Resources and Environment to the Registrar of the Courts seeming to suggest that further steps were required before there would be a reliable survey map. 
19. 	It is not appropriate for us to speculate further as to the effect of the appellants’ evidence and the gaps that might need to be filled on both sides. At trial, the onus will be on the respondent. It is perfectly possible that when all the evidence has been properly considered, the respondent’s allegations will fail. At this stage it is impossible to say. But it is sufficient for present purposes to note that there is an unresolved conflict between the allegations on which the respondent’s case rests and the evidence so far offered by the appellants.
The approach to strike out applications
20. 	This brings us to the real point of this decision: the appellants have misunderstood the principles on which strike out applications are decided. If they had started with those principles it would have quickly become apparent that the application to strike out could not succeed. The way forward was to proceed to trial where the onus would lie on the respondent. 
21. 	For future assistance we summarise the principles on which a Court decides an application to strike out on the ground that the plaintiff’s pleading does not disclose a tenable cause of action. In this decision we will not try to set out the different set of principles applicable to proceedings alleged to be frivolous, vexatious or an abuse of process. No allegation of that kind has been made in the present case. 
22. 	The principles on which a Court decides an application to strike out on the ground that the plaintiff’s pleading fails to disclose a tenable cause of action have been applied many times, both in Samoa and elsewhere. They may be summarised as follows:
(a) 	Pursuant to both R 70 of the Supreme Court (Civil Procedure) Rules 1980, and its inherent jurisdiction, the Supreme Court can strike out a pleading where no tenable cause of action is disclosed. For this purpose the grounds set out in an originating notice of motion for judicial review are to be treated as the pleading.
(b) 	The pleading should be struck out if the Court is satisfied that, even on the most favourable interpretation of the facts pleaded or available, the plaintiff could not succeed in law.
(c) 	For this purpose the facts asserted in the pleading may be supplemented by affidavit evidence from either side only if it is incontrovertible.  The Court will not attempt to resolve genuinely disputed issues of fact or consider evidence inconsistent with the pleading.
(d) 	The jurisdiction to strike out is to be exercised sparingly, and only in clear cases where the Court is satisfied that it has both the material and the assistance from the parties required for a definite conclusion.  A claim should be struck out only if it is so clearly untenable that it could not possibly succeed.
(e) 	The jurisdiction to strike out should not be exercised if the pleading could be sustained by appropriate amendment or if there remains the realistic possibility that at trial evidence could emerge to rectify a seeming gap or flaw in the plaintiff’s case.
(f) 	However, where the claim depends on a question of law capable of decision on the material before it, the Court should not shrink from determining the question even if extensive argument may be required.
23. 	It follows that where a defendant applies to strike out on the basis that it disagrees with the plaintiff’s pleaded facts, the application will nearly always fail. For the purpose of a strike out application the Court treats the plaintiff’s pleaded allegations as proved. The pleading must be taken at face value because a plaintiff is under no obligation to provide its evidence until trial.  In a few cases the defendant may be able to show that, even on the facts pleaded by the plaintiff, there is no legally recognizable cause of action. Alternatively the defendant may be able to show that any potential cause of action would fall outside the limitation period. But strike out applications on other grounds rarely succeed.  
24. 	If they had appreciated these principles the present appellants would not have filed their application to strike out. However convincing they considered their own evidence to be, it ought to have been apparent that it would simply set up a conflict with the respondent’s pleading. The time to test the evidence in this case was at trial, not on a strike out application.
Result
25. 	The appeals by both the first and the second appellants are dismissed. 
26. 	The first appellants must pay the respondent costs in the sum of $5,000. 
27. 	We accept that the second appellants were reacting to a lead shown by the first appellants. There will be no order for costs against the second appellants. 
Addendum
28. 	This appeal was heard on 6 August 2020. At the conclusion of the hearing we reserved our decision. We did not reserve leave to any party to file further material after the hearing. On the following day the first appellants filed unsolicited submissions. The submissions sought to revisit some of the matters traversed during the hearing. The first appellants did not apply for leave to file the further submissions. 
29. 	There does not appear to be anything in the civil procedure rules of the District Court, Supreme Court or Court of Appeal expressly governing this situation. Nor do there appear to be any reported decisions on the point. Until now it appears to have been sensibly assumed that it goes without saying that no party has a right to file post-hearing submissions without leave.
30. 	As a general rule a litigant is not permitted to provide further submissions or authorities after a hearing is concluded. There are three exceptions:
(a) 	Where leave had been reserved by the court at the hearing.
(b) 	Where a party files a successful application for leave to adduce further material after the hearing.
(c) 	Where a party appeals to a higher court where, subject to costs, the higher court can receive fresh authorities and arguments.  
31. 	Leave was not reserved at the hearing in this case. A further appeal is not possible. That leaves only (b), an application after the hearing. As to such applications, the relevant practice note in New Zealand was as follows:
	Where either counsel after the hearing of a matter is concluded, but before delivery of judgment, desires to make further submissions, application must first be made to the Judge for leave. It is only in exceptional circumstances that leave will be granted as, for example, where some pertinent consideration or authority has been overlooked or a new matter has arisen since the hearing which has not been anticipated by counsel. In the event of either counsel desiring to make such an application, an appointment should be sought with the Judge in chambers through the Registrar. No submissions or memoranda filed without leave will be considered.
32. 	In our view the rationale underlying the New Zealand practice note is equally applicable in Samoa.  There is a public interest in the finality of litigation. It is also unfair to opposing parties to impose on them the time, cost and delay of responding to fresh material which could have been produced during the hearing. We would differ from the practice note in only one respect - it is not necessary for counsel to see the Judge in chambers. A filed and served memorandum seeking leave will be sufficient followed by an opportunity for the opposing party to respond. The memorandum will need to indicate the nature of the new material and the exceptional reasons for the Court to receive it. If leave is granted then, and only then, can the applicant file the actual submissions or authorities in question. 
33. 	In the present case leave to adduce further submissions was not reserved at the hearing. There was no post-hearing application for leave to file them. We therefore decline to receive them. It may be of consolation, however, to appreciate that the matters traversed in the memorandum would not have affected the outcome. 
	
HONOURABLE CHIEF JUSTICE PERESE
HONOURABLE JUSTICE FISHER
HONOURABLE JUSTICE HARRISON