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Amosa v Lauano [2025] WSCA 8 (19 June 2025)

IN THE COURT OF APPEAL OF SAMOA
Amosa & Ors v Lauano & Ors [2025] WSCA 8 (19 June 2025)

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

BETWEEN:

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

Appellants

AND:

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

First Respondents

AND:

PRESIDENT OF THE LAND AND TITLES COURT

Second Respondent

Hearing: 13^th June 2025

Coram: Hon. Justice Harrison
Hon. Justice Asher
Hon. Justice Young

Appearances: T. Toailoa & P. Lithgow for the Appellants
C. Finlayson KC & J. Stowers for the First Respondents
DJ Fong & V. Leilua for the Second Respondents

Judgment: 19 June 2025

JUDGMENT OF THE COURT

1. This appeal arises from a long-running dispute between the Alii and Faipule of Leauva’a and Afega which concerns:
   • (a) land (to which we will refer as “the disputed land”) of which most, and perhaps all, is owned by Afega but is occupied by people of Leauva’a; and
   • (b) attempts by Afega to evict those people from the disputed land.
2. For more than 70 years, litigation about the dispute has been before the courts set up under the Samoan Land and Titles Protection Ordinance 1934, the Land and Titles Act 1981 (“LTA 1981”), the Land and Titles Act 2020 and Part IX of the Constitution of Samoa as it was prior to amendments to the Constitution made in February this year together with the Land and Titles Act 2020.
3. This dispute came to a head last year. The immediate background was as follows.
4. In December 2018, Afega obtained an eviction order in the Land and Titles Court against 18 people of Leauva’a who were occupying the disputed land. An appeal against that decision was later dealt with by the Land and Titles High Court. The judgment of that Court was delivered on 24 March 2023. It upheld the 2018 decision. Leauva’a sought to challenge this decision in the Land and Titles Court of Appeal and Review but was not able to prosecute its appeal as that Court had not been constituted. And for associated jurisdictional reasons, Leauva’a was not able to obtain a stay of the 2018 and 2023 judgments. On 8 March 2024, the Land and Titles First Court ordered the eviction of the Leauva’a people occupying the disputed land. Afega tried to enforce this eviction directly and by physical means and did so without obtaining enforcement orders as provided for in s 59 of the Land and Titles Act 2020.
5. These attempts resulted in proceedings in the Supreme Court in which Leauva’a sought relief by way of interim injunction preventing the evictions. This application was heard urgently by the Chief Justice on 4 April 2024. At the conclusion of the hearing, and pending a reasoned decision on the application, he granted an interim injunction preventing what had been planned to be a mass eviction the following day, that is 5 April. He released a reasoned judgment on 9 April 2024 (the 9 April judgment) in which he granted an interim injunction enjoining enforcement of the December 2018 and March 2024 decisions of Land and Titles High Court and Land and Titles First Court “pending further order of the Court”.
6. In the 9 April judgment, the Chief Justice was required to deal with arguments that the Supreme Court was not entitled to grant such relief – arguments that raised constitutional and jurisdictional issues of considerable significance and difficulty. These issues were addressed in detail in September 2024 before a bench of the Supreme Court consisting of Perese CJ and Tuatagaloa and Young JJ, They delivered a judgment on 11 October 2024 (the 11 October judgment) which:
   • (a) Stayed 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, pending the establishment of the Land and Titles Court of Appeal and Review and its determination of Leauva’a’ s appeal. And
   • (b) Enjoined Afega from taking steps to evict those occupying the disputed land unless or until eviction orders are obtained in the District Court or Supreme Court under s 59 of the Land and Titles Act 2020.
7. Afega appealed against both the 9 April and 11 October 2024 judgments. The appeal against the 9 April judgment was filed prior to the September hearing before the Full Court. Afega has since abandoned the appeal against the 11 October 2024 judgment but wishes to proceed with its appeal against the 9 April judgment. Afega’s concern is with comments made by the Chief Justice in his 9 April judgment to the effect that the judgment of the Land and Titles Court of December 2018 was unacceptably inconsistent with an earlier judgment of the appellate division of the Land Titles Court delivered on 15 September 2017 which had set aside an earlier eviction order against Leauva’a.
8. A chronological analysis of all relevant decisions within the Land and Titles court system is set out at [35] – [42] of the 11 October judgment.
9. As we will discuss shortly, this appeal faces a jurisdictional hurdle. But before we explain why, it is appropriate to identify the basis of Afega’s concern. It is that the remarks made by the Chief Justice about the perceived inconsistency between the 2017 and 2018 judgments may preclude Afega arguing in the future (presumably before the Land and Titles Court of Appeal and Review) that there is no inconsistency. It is certainly the case that the views of the Chief Justice as to inconsistency were expressed in firm and indeed apparently conclusory terms. However, we do not see his remarks as operating in effect as a res judicata, precluding later argument by Afega that there was no relevant inconsistency. This is for the following reasons:
   • (a) The 9 April judgment was delivered at short notice in circumstances of considerable urgency.
   • (b) The perceived inconsistency appears not to have been an essential part of the Chief Justice’s reasoning. And, most significantly
   • (c) The remarks were made in a context in which all that was required was an assessment whether Leauva’a had shown a serious question to be tried. Given this, it is not possible to construe the remarks as doing more than identifying as arguable a particular basis for challenging the 2018 decision.
10. So, adopting an orthodox common law approach, the Chief Justice’s comments do not, in themselves, preclude an argument by Afega that it may seek eviction orders despite the September 2017 decision of the appellate division of the Land and Titles Court. For the sake of completeness, we note that there may be issues as to whether, and if so, the extent to which, the common law doctrine of res judicata (and like principles) should be applied in the Land and Titles Court – issues on which we did not hear argument.
11. This brings us back to the jurisdictional issue already mentioned.
12. Article 75 of the Constitution, as it stood prior to the February 2025 amendments, relevantly provided for the Court of Appeal to have jurisdiction to hear appeals against “any judgment, decree, or order of the Supreme Court”. Under the February 2025 amendment, that language has been simplified with the words “judgment, decree or order” replaced by “decision”. We do not see these provisions as providing for this Court to exercise a free-standing jurisdiction to comment on the reasons given for a judgment when the actual orders made in that judgment are not themselves challenged.
13. As will be apparent from what we have said, Afega’s appeal addresses not the orders made by the Chief Justice but rather his reasons. Such an appeal is not within the jurisdiction of this Court. As well, as the orders made by the Chief Justice on 9 April 2024 were only to be in effect “pending further order of the Court”, the further orders made in the 11 October judgment mean that the orders made by, and thus the “decision” of, the Chief Justice are now spent and thus no longer current.
14. At the conclusion of the hearing, we advised counsel that we were of the view that this Court lacks jurisdiction to entertain the appeal. By this stage there was no real dispute that this was so. But with a view to alleviating concerns on both sides that were explained by Mr Lithgow and Mr Finlayson KC we agreed to record that:
    • (a) We do not see the comments that Afega wishes to challenge as providing, in themselves, a basis on which it could be said that Afega is precluded from seeking eviction of people of Leauva’a from the disputed lands. In other words, it will be open to any subsequent judges engaged in a hearing on the merits to reach whatever conclusion they think appropriate as to the effect of the 2017 decision. This is for the reasons already given.
    • (b) Mr Lithgow confirmed that the appeal by Afega in relation to the 9 April judgment was not a challenge to the orders made by the Supreme Court in the 11 October judgment and should not be construed as if it were.
15. For the reasons given, the appeal is dismissed but without costs.
16. For the avoidance of any doubt, we confirm that the orders made in the 11 October judgment (including the stays of execution and the injunction) remain in force.

HON. JUSTICE HARRISON
HON. JUSTICE ASHER
HON. JUSTICE YOUNG