IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

TOAILOA VAOSA and
TOLEAFOA SOLOMONA TOAILOA
Plaintiff

AND:

ATTORNEY GENERAL
sued for and on behalf of the LAND BOARD
First Defendant

AND:

LEATAATA TOAILOA
Second Defendant

Counsel: Mr R.S. Toailoa for the Plaintiffs
Mr G. Powell and Mr M. Leung Wai for the First Defendant
Mrs K. Sapolu for the Second Defendant

Hearing Dates: 16, 17, 18 and 19 March; 3 May 1999
Date of Decision: 4 August 2000

REASONS FOR JUDGMENT OF WILSON J

THE MAIN ISSUES

It was agreed on all sides during the hearing of this civil action that the main issues for determination are whether a piece of land at Laulii is public land or customary land and whether a lease agreement entered into between the second defendant and the Land Board is valid or not.

THE PLEADINGS

By their amended statement of claim the plaintiffs allege that the piece of land (hereinafter called "the disputed land") is all that piece or parcel of land containing an area of one acre naught roods and fourteen perches - 1a.0r.14p (4403 M²) situated - at Laulii in the District of Tuamasaga described as Parcel 2430 Flur XII Upolu being reclaimed land as the same is more particularly delineated on Plan 5398 deposited in the Office of the Director of Lands, Apia.

The plaintiffs, who allege that they are respectively the current holder of, and an heir to, the title Toailoa, allege that the disputed land is part and parcel of the official seat ("tulaga maota/laoa") of the title Toailoa in the village of Laulii and is therefore customary land.

The plaintiffs plead that the first defendant and the second defendant are parties to a Deed of Lease dated the 1 July 1994 and registered with the Land Registry Office on 11 July 1996: Volume 34 Folio 186, and that, under the said Deed of Lease (hereinafter the called "the lease") the first defendant leased to the second defendant the disputed land which was said to be public land pursuant to section 2 of the Lands, Surveys and Environment Act 1989.

The plaintiffs allege that the first defendant has wrongfully claimed the disputed land as government land and has wrongfully alienated the disputed land to the second defendant.

The plaintiffs seek a declaratory judgment that the disputed land is not government land and is part and parcel of the official seat of the title Toailoa of the village of Laulii, and seek an order that the lease be annulled, and further seek an order directing the first defendant to remove the registration of the disputed land from the Land Register, and other ancillary orders. 

By its statement of defence the first defendant denies that the disputed land is part and parcel of the official seat of the title Toailoa in the village of Laulii and is therefore customary land, and denies the claim that the disputed land is not government land, and further denies that the disputed land was wrongfully alienated. The first defendant alleges that a former "title-holder of the (disputed) land, Toailoa Siaosi" acknowledged by word and action that the disputed land was government land.

The second defendant, by her statement of defence, made denials similar to with those made by the first defendant.

THE EVIDENCE

The plaintiffs adduced evidence in the form of the oral testimony of Foutanu Eti Lino (a qualified draughtsman with the Lands and Survey Department), Toailoa Vaosa (the first defendant himself), and Fuamatu Etena Toailoa (one of the sons of the late Toailoa Siaosi). The first defendant called to give oral evidence Maiava Nafatali (the Secretary of the Land Board) and Sanalala Salanoa (a surveyor). The second defendant called no witnesses and adduced no evidence. 

Documentary evidence that was tendered comprised Plan No.1733 (exhibit P1), a Plan annexed to a Lease Agreement (exhibit P2), a Survey Record (exhibit P3), a gazette (exhibit D1A) a Plan (exhibit P4), an affidavit (exhibit D1B), a Land Register Book Page (exhibit D1C), a Sketch (exhibit P5), a Translation of Annexure A (exhibit D1D), and an affidavit (exhibit D1E).

A VIEW

For the purpose of enabling me to understand the evidence that had been adduced and was yet to be adduced, a view of the subject land was conducted on the second day of the trial.

THE RELEVANT ARTICLES OF THE CONSTITUTION 
AND STATUTORY ENACTMENTS

Article 14 of the Constitution provides: 

"14.	Rights regarding property - (1)	No property shall be taken possession of compulsorily, and no right over or interest in any property shall be acquired compulsorily, except under the law which, of itself or when read with any other law:

(a)	Requires the payment within a reasonable time of adequate compensation therefor;

(b)	Gives to any person claiming that compensation a right of access, for the determination of his interest in the property and the amount of compensation, to the Supreme Court, and

(c)	Gives to any party to proceedings in the Supreme Court relating to such a claim the same rights of appeal as are accorded generally to parties to civil proceedings in that Court sitting as a Court of original jurisdiction.

(2)	Nothing in this Article shall be construed as affecting any general law:

(a)	For the imposition or enforcement of any tax, rate or duty; or

(b)	For the imposition of penalties or forfeitures for breach of the law, whether under civil process or after conviction of an offence; or

(c)	Relating to leases, tenancies, mortgages, charges, bills of sale, or any other rights or obligations arising out of contracts; or

(d)	ting to the vesting and administration of the property of persons adjudged bankrupt or otherwise declared insolvent, of infants or persons suffering under some physical or mental disability, of deceased persons, and of companies, other corporate bodies and unincorporated societies, in the course of being wound up; or

(e)	Relating to the execution of judgments or orders of Courts; or

(f)	Providing for the taking of possession of property which is in a dangerous state or is injurious to the health of human beings, plants or animals; or

(g)	Relating to trusts and trustees; or

(h)	Relating to the limitation of actions; or

(i)	Relating to property vested in statutory corporations; or

(j)	Relating to the temporary taking of possession of property for the purposes of any examination, investigation or inquiry; or

(k)	Providing for the carrying out of work on land for the purpose of soil conservation or for the protection of water catchment areas.

[Distress of property is unlawful in Western Samoa; see section 16 of the Alienation of Customary Land Act 1965, subsection 51 and 87 of the Land Ordinance 1959, and section 362 of the Samoa Act 1921 (N.Z.).]

Article 101 of the Constitution provides:

"101.	Land in Western Samoa - (1) All land in Western Samoa is customary land, freehold land or public land.

(2)	Customary land means land held from Western Samoa in accordance with Samoan custom and usage and with the law relating to Samoan custom and usage."

Article 102 of the Constitution provides:

"No alienation of customary land - It shall not be lawful or competent for any person to make any alienation or disposition of customary land or of any interest in customary land, whether by way of sale, mortgage or otherwise howsoever, nor shall customary land or any interest therein be capable of being taken in execution or be assets for the payment of the debts of any person on his decease or insolvency:

Provided that an Act of Parliament may authorise:

(a)	The granting of a lease or licence of any customary land or of any interest therein;

(b)	The taking of any customary land or any interest therein for public purposes."

Article 103 of the Constitution provides:

"103.	Land and Titles Court - There shall be a Land and Titles Court with such composition and with such jurisdiction in relation to Matai titles and customary land as may be provided by Act.

Article 104 of the Constitution provides:

"104.	Land below high-water mark - (1) Subject to the provision of any Act, all land lying below the line of high-water mark shall be public land.

(2)	For the purposes of this Article, the term ‘high-water mark’ means the line of median high tide between the spring and neap tides."

Section 16 of the Land Registration Act 1992/1993 provides:

"Effect of registration - No instrument of title shall in any manner affect the legal title to land until and unless such instrument is registered in the Land Register in accordance with this Act."

Section 38 of the Land Registration Act provides:

"Government not liable - The Government is not liable in any civil proceedings for any damage done or for any loss suffered as result of any act, omission or default of the Registrar or any of his subordinates."

Section 2 of the Taking of Land Act 1964 provides:

"Interpretation - In this Act, unless inconsistent with the context:

…………………..

"Public purpose" includes aerodromes and adjuncts, public health, education, public recreation, the burial of the dead, forestry, production and distribution of electricity, provision of postal, telegraph, and telephone services, the control of coasts and rivers, the safeguarding of water, soil and forest resources, water supply, drainage, lighting, defence, the provision of public buildings, the provision of sites for townships, the provision of reserves for erosion control and water catchment, the provision of roads, wharves, harbours and all lawful purposes and functions of the Government of Western Samoa.

"Road" means a public highway, whether carriageway, bridle path, or footpath; and includes the soil of:

(a) 	Public lands over which a road is laid out and marked on the record maps lodged in the office of the Director, and includes record maps compiled and approved during the German Administration;

(b) 	Lands over which right of way has in any manner been granted or dedicated to the public by any person entitled to make such grant or dedication;

(c) 	Lands taken for or proclaimed roads under the provisions of this Act or any other Act formerly in force;

(d) 	Lands over which a road has been or is in use by the public which has been formed or improved out of the public funds for the width formed, used, agreed upon, or fenced, not being more than 10 metres on either side of the middle-line thereof, and a sufficient plan whereof, approved by the Director, has been or is hereafter registered by the Registrar of Land against the properties affected by it; and the said Registrar is hereby authorised and required to register any such plans accordingly, anything in any other Act notwithstanding, when presented for registration by or on behalf of the Minister and, unless repugnant to the context, includes all roads which have been or may hereafter be set apart, defined, proclaimed, or declared roads under any law or authority for the time being in force, and all bridges, culverts, drains, ferries, fords, gates, buildings, and other things thereto belonging upon the line and within the limits of the road.

…………………………."

Section 7 of the Taking of Land Act 1964 provides:

"7.	Empowering the taking of land - Customary land and freehold land required for any public purpose may be taken by the Head of State, acting on the advice of the Minister, under the provisions of this Act."

Section 14 of the Taking of Land Act provides:

"14.	Surveys, plans, notices and objections in respect of freehold land - Whenever it is proposed to take freehold land for any public purpose, the Minister shall:

(a)	Cause a survey to be made and a plan to be prepared and certified to be accurate, showing the land to be taken, and the names of the owners and occupiers of that land so far as they can be ascertained; and

(b)	Cause a copy of such plan to be deposited in the office of the Lands, Surveys and Environment Department in Apia; and

(c)	Cause a notice to be publicly notified and to be sent to each owner, occupier and person having an interest in the land, or the agent of any of them, whose name and address are readily ascertainable, stating the Government’s proposal to take the land, the public purpose for which it is wanted, that the plan thereof may be inspected in the said office in ordinary office hours, and that any person affected may give written notice of objection with reasons to the Director within 28 days of the first publication of the notice; and

(d)	Upon receiving from the Director any such objection with any reason (other than an objection to the amount or method of payment of compensation), appoint a time and place in Western Samoa at which the objector may appear before the Minister or some person appointed by him and support the objection by such evidence and argument as the objector thinks fit."

Section 58 of the Taking of Land Act 1964 provides:

"58.	Existing Roads - All roads existing in Western Samoa at the commencement of this Act shall continue to exist as if established under this Act."

Section 2 of the Lands, Surveys and Environment Act 1989 provides:

"Interpretation - In this Act, unless the context otherwise requires:

"Alienation" includes a limited disposal by lease, as well as an absolute disposal by sale or otherwise; and "to alienate" has a corresponding meaning.

……………………………….

"Freehold Land" has the meaning given to it by Article 101 of the Constitution of the Independent State of Western Samoa.

"Government land" means public land which is not for the time being set aside for any public purpose; and includes land which has become the property of the Government as bona vacantia.

………………………………..

"Private Land" for the purposes of Part VIII of this Act means any land which is not Public land.

"Public Land" has the meaning given to it by Article 101 of the Constitution of the Independent State of Western Samoa.

…………………………………."

Section 29 of the Lands, Surveys and Environment Act provides:

"29.	Board may alienate land - The Board may alienate Government land under this Act either after calling for applications therefor or without competition in accordance with the provisions of this Act."

Sections 345 and 347 of the Samoan Act 1921 (now mostly repealed) provided:

"345.	(1) The Administrator may, by warrant under the Seal of Samoa, proclaim any Crown or other land as a road.

(2)	All persons having any interest in such land and suffering loss or damage by reason of the proclamation of a road under this section shall be entitled to compensation for that loss or damage in the same manner as in the case of land taken for public purposes under Part IX of this Act.

347.	It shall be lawful by Ordinance to close, in whole or in part, any road in Samoa, and to make or authorise such disposition as is thought fit of the land comprised within the area of the road so closed."

THE WITNESSES

The first witness, Foutanu Eti Lino, said that he was a draughtsman with the Lands, Surveys and Environment Department of Samoa for 14 years and in New Zealand for 17 years, 31 years in all. He explained that the Plan No.1733 dated 23 November 1929 shows, amongst other things, the area where the disputed land is, and, in particular, shows an area of land which was to be proclaimed as a road (coloured red) under Section 345 of the Samoa Act 1921 and an area of road which was to be closed (coloured green) under Section 347 of the Samoa Act 1921. He further explained that the said Plan (which, as I have already indicated, was tendered as exhibit P1) shows the lands of "Toailoa" on the Plan but shows no public land or anything to indicate that it was public or government land. He marked on the exhibit with the word "Swamp" where a swampy area was. He agreed that, normally when names appear on a Plan, that seems to indicate the owners of the land.

Although he was tested while under cross-examination by Mrs Sapolu, for the second defendant, as to whether exhibit P1 is an official document, in the light of the apparent absence of any writing on it to show that it had been "examined" or "received" or "deposited" or "approved", he maintained that it was "still an official Plan". He said:

"Normally it can’t be used for issuing titles to properties, but for survey information it is still an official record of our survey marks."

He agreed that the plan No.5398 annexed to the lease agreement, exhibit P2, had been examined and approved, and is an official document of the Lands and Survey Department.

Although, when under cross-examination by Mr Powell, for the first defendant, Foutanu Eti Lino agreed that the name "Toailoa" actually appears within the boundaries of the disputed land marked by him in pink on exhibit P1, he did go on to explain that the marks he had put on the Plan were not to scale.

He agreed that, where the maps such as exhibit P1 show persons as "owners", they may be owners or just inhabitants. He eventually agreed that the main purpose for that Plan being brought into existence was to show road boundaries, one coloured green to show the old road and one coloured red to show the proposed road.

His earlier evidence to the effect that exhibit P1 was "still an official Plan" was confirmed when he was able to produce (after a luncheon adjournment) a document signed on 28 July 1931 by the chief surveyor giving approval to what was shown on exhibit P1. This document, a survey record, was tendered, received and marked exhibit P3.

When under re-examination, Foutanu Eti Lino was able to assert (and I accept him on this issue) that exhibit P1 is both an official and an approved Plan. With the use of a magnifying glass he was able to examine and then comment upon the issue of whether the original of exhibit P1 had been signed by the chief surveyor who had signed exhibit P3; he said that the signatures appearing on each exhibit "appear to be the same". I accept and rely upon that evidence and all his evidence.

I am persuaded by Mr Toailoa, counsel for the plaintiffs, that the evidence of Foutanu Eti Lino, in conjunction with exhibits P1 and P3, constitutes probative evidence that the disputed land is, and was as at 28 July 1931, customary land.

The second witness was Toailoa Vaosa, the first-named plaintiff. He explained that he is the present holder of the title Toailoa which is a title that has been registered with the Land and Titles Court since 1998. He testified that he had been born and brought up on the disputed land and surrounding land. His date of birth is 22 March 1930, so he is now 70 years of age. Before he became the title-holder, the title was shared between his father, Toailoa Tulemoe, and Toailoa Galuega. He testified to the disputed land having been named ‘Falevi’, the residence of the Title Toailoa at Laulii. His evidence was that he remembered seeing the old road (marked green on the Plan) but it is "now all covered by seawater." He said that the whole land "(between the green road and the red road) …… belongs to us", that is to say from "the red road to where the sea is." Except for the matter of the lease (between the Land Board and Leataata Toailoa Siaosi), he could not recall any of the land under the Title Toailoa having been taken by the government, and he at no time conceded that it had been properly alienated.

Toailoa Vaosa went on to explain the origin of the swampy area shaded yellow on one of the exhibits; "it is only when it is raining that rain water will concentrate in that area"; the rain water comes "from the top of the mountain" which is an area on the inland side of the area marked "swamp"; "the seawater can never touch this area." He said that there was "about 25 metres" between "the edge of the shoreline and where the swamp is."

Toailoa Vaosa was asked what he could say about the disputed land which had allegedly been "taken by the government and leased to Leataata Toailoa." He said:

"When I took over as the Title-holder for our family, this is when I heard that the government (had) leased out this land to Leataata Toailoa. I then came and enquired at the office of Savali (the official gazette of the Government). …… There was no edition of Savali where it was published. …… the way it was done was not correct. …. (The disputed land) is the land belonging to the Title Toailoa."

When he was asked what he could say concerning the suggestion that the disputed land was reclaimed land, he said:

"Why this land was reclaimed. It was done because Toailoa Siaosi … because it was much lower than the main (new) road, and that is a function of a Matai to improve (or upgrade) the assets of the family …. It was dry land (that was) reclaimed. (It had not been covered) by sea water."

Toailoa Vaosa was able to point to houses shown on the Plan and who lived in them. Under cross-examination by Mrs Sapolu, Toailoa Vaosa acknowledged that the area of land where Toailoa Maliko ("Toailoa M.") lived "is now covered by sea water." He further acknowledged that a small part of the land where Toailoa Galuega’s descendants lived "is now covered by sea water."

He said that the old road near the sea "is now covered by the sea" - the area painted in green "is covered by seawater now". In explaining that the sea wall was "built by the government to protect the land from the sea" he said that it was "to stop the seawater coming" in much the same way that Toailoa Maliko’s land had been lost. He recalled that the whole village (when Toailoa Siaosi was the Title-holder) a long time ago made the request to the government "to stop the seawater coming." He thought that the work was done "perhaps in 1988 or 1987 …. around that period."

In cross-examination by Mr Powell, Toailoa Vaosa acknowledged that the second defendant is Toailoa Siaosi’s widow and that the second plaintiff is the son of Toailoa Siaosi.

I found Toailoa Vaosa to be an honest and reliable witness; I accept his evidence without reservation.

The third witness was Fuamatu Etena Toailoa, the 43 year old son of the late Toailoa Siaosi. He testified to the disputed land, that is "bounded by the green road, the brown sector (to the west), and the red-road (to the south) and the yellow boundaries to the east and the sector of the land to the north of the green road bulging into the sea", is the land owned by the Title Toailoa. He said:

"I have a fair understanding of this land, because this is where I was born and where I was brought up."

He said that he was not aware how the leasing of the disputed land came about. Regarding the reclamation of the land, he denied that "any part of the land that was filled by Toailoa Siaosi was covered by sea water before the fill was brought on to the land." He also denied that there was ever a time when the seawater could reach the swampy area: "this part of the land during the rainy season, especially at the end of every year, was always covered by water, but, when it was the dry season, it would always be dry (pointing to the south-western end of the area marked in pink)." He estimated the distance between the edge of the swamp and the sea at approximately 30 yards. He was adamant that part of that swampy area was filled in by Toailoa Siaosi. He denied that Toailoa Siaosi reclaimed any land that had previously been under seawater.

This witness testified as to what occurred as a result of Cyclone Ofa. He said that "the only time the seawater reached the northern-end (of the disputed land) was during Cyclone Ofa …. When the cyclone came, at first the northern tip eroded, but, because of the reaction of the river and tidal movements, stones from the river were re-located at this northern end, so there was a creation of the shore line."

Whilst under cross-examination by Mrs Sapolu, Fuamatu Etena Toailoa denied that very much damage was caused to the foreshore of his family’s land either by Cyclone Ofa or by Cyclone Val. He said that he was unaware of any discussions held between Toailoa Siaosi (his father) and himself and his siblings regarding the leasing of the disputed land - "the only thing he told me when we had our conversation was the need to re-level or elevate the land; there was no discussion about leasing." He was asked whether, as he was growing up in Laulii, he was "aware of a road that went along the foreshore." He replied:

"There were only stories that I heard about that road, as I was growing up. That whole area was covered with seawater …."

He firstly put the distance between the high water mark and the edge of the reclaimed land as about "between one and three metres," but in re-examination he clarified the effect of his earlier answer and said that the distance from the edge of the existing reclamation to the sea was "about fifteen metres."

When under cross-examination by Mr M. Leung Wai he testified:

"If what my father told me was correct, then the reclamation did not include the old road, as it had already been eroded. I was also asked whether the reclamation reached beyond the shore-line and my answer was ‘No’, that is my answer."

He agreed that there are coconut trees, bread fruit trees, and bananas on the reclaimed land.

When being re-examined, he indicated that he had never seen any sign or trace of the old road, and he said that the first plaintiff had pointed out to him where the old road used to be "towards the sea." This evidence showed some consistency between the testimony of the first plaintiff and his earlier conduct . I accept the evidence of Fuamatu Etena Toailoa as far as it went. He was not shaken in cross-examination.

The first witness for the first defendant was Maiava Nafatali, the Secretary of the Land Board. He referred in his oral evidence to his affidavit sworn on 16 March 1999 (exhibit DIB). In the affidavit he deposed to having been "part of the sub-committee" that inspected "the area requested by the late Toailoa Siaosi to be reclaimed at Laulii’." Annexures to his affidavit comprised a copy of the sub-committee’s report and a copy of the lease dated 1 July 1994. He deposed to the fact that part of "the said area" had already been reclaimed and that the inspection was only in respect of the northern part of Parcel 2430. He deposed to an understanding of the Land Board, and to the fact that the Land Board in or about 1989 agreed to grant a reclamation permit at Laulii to the late Toailoa Siaosi "as evidenced in the minutes of the Land Board (annexure B)". He deposed to the lease being executed between the Land Board, as lessor, and the second defendant (being the wife of the late Toailoa Siaosi), as lessee (annexure C). The preamble to the lease records inter alia that the disputed land "is government land …. within the meaning of section 2 of the Lands, Surveys and Environment Act 1989" and that "pursuant to sections 2 and 29 of (that) Act the lessor is empowered to alienate government land in accordance with the provisions of (that) Act."

This evidence tendered through Maiava Nafatali brings into focus one of the main issues in this case, which I characterise, in this context, as whether the disputed land was land that could lawfully be alienated, or whether the disputed land was (and remains) customary land.

Also tendered through Maiava Nafatali was a photocopied page from the land Register Book which became exhibit DIC. That exhibit shows that the lease was registered in June 1996.

When under cross-examination by Mr Toailoa, Maiava Nafatali explained that he participated in the inspection to which had referred earlier (before 1990) but that he was not a member of the Land Board at the time. He agreed that Toailoa Siaosi, when he had "requested" the disputed land, was referring (and understood to be referring) to land above the high water mark: "not only to start from where the sea is but also to reclaim any swamp …." He agreed that, when the disputed land was visited, he observed trees and coconuts and crops already growing on this part of the land (that was) inspected." He agreed that the coconut trees "had been growing for quite a number of years" - "about 10 years old", he said - he could not remember the tall coconut trees, just the young coconut trees, that "Toailoa Siaosi said (had been) planted on the reclaimed land". He agreed that, at the time of the inspection, there was "no fill in the sea."

Maiava Nafatali said, when being cross-examined, that, at the time of the inspection, he "was not really thinking of (the swampy area) at the time, because (he) was looking at the area to be reclaimed …." He agreed that he was "concentrating only on that ¼ acre which had been requested to be reclaimed towards the sea (i.e. within the sea itself)." The effect of his evidence was that the ¼ acre was meant to start at the mean high water mark and extend into the sea.

He pointed out to the Court that the last part of the sub-committee’s report [annexure A to his affidavit (exhibit DIB] states (in English):

"… that is the reason why we recommend approval of the request for a ¼ acre to be reclaimed in the sea."

That recommendation was to the Land Board.

He agreed that the recommendation was contemplating that the reclamation work had yet to be done, because "unless an approval is obtained from the Land Board, no-one can reclaim land from the sea."

Maiava Nafatali also agreed that the Land Board did approve the reclamation of a ¼ acre of land, whereas the disputed land referred to in the schedule to the lease is "1 acre 0 roods 14 perches." He also agreed that there was no further approval given by the Land Board to reclaim any more than ¼ acre.

When he was asked to refer to his authority for saying that swampy areas below the mean high water mark are public land, he mentioned Article 104 of the Constitution, and he agreed that another way of stating that principle was to say that "any land that the tide cannot reach is not public land."

An English translation of annexure "A" to his affidavit was tendered, received and marked exhibit DID.

The second witness for the first defendant was Sanalala Salanoa, a surveyor working at the Department of Lands, Surveys and Environment. His affidavit sworn on 16 March 1999 was tendered, received and marked exhibit DIE. In his affidavit he deposed to having surveyed a reclamation at Laulii "which was noted as Parcel 2430 as seen on Survey Plan 5398" - he later said that this was in 1990.

He deposed to having conversed with the late Toailoa Siaosi who had pointed out the boundaries of the reclamation. He said that he knew "that most of the area that was reclaimed used to be a swamp" - he said later that he "saw it". Although he could depose to the fact that the northern part of Parcel 2430 was "certainly" below the median high water mark, he said that he had no knowledge of the level of the swamp prior to the reclamation.

He acknowledged that it was his understanding that "all reclamations on the sea and of streams and swamps by the sea are public land."

When under examination-in-chief Sanalala Salanoa said that he did not know whether "the old road marked in green" had ever been closed by Act of Parliament.

When under cross-examination he confirmed that, when he surveyed the site, all the reclamation shown on annexure B had been done. He agreed that, at the time of the survey, the reclamation did protrude into the sea, but he emphasised that he surveyed the reclamation and not the coast line.

Sanalala Salanoa finally accepted that the part of the reclamation "to the north of the mean high water mark "(and protruding into the sea) was 906 square metres in area. The witness seemed to have some difficulty in explaining a number of the distances on the various plans that were put to him.

Further, when under cross-examination still, he acknowledged that all his instructions that he received had come, not from the Land Board, but from Toailoa Siaosi. However, the approval given by the Land Board related only to ¼ acre.

He was led to accept and acknowledge that his plan 5398 is not in accordance with the approval given by the Land Board.

During cross-examination about the trees on the disputed land, he agreed that the talie tree "is quite an old tree …. more than 30 years old" and that the row of tall coconut trees "are probably older than 30 years old."

Although his evidence directed to the legal question of how customary is taken pursuant to the Taking of Land Ordinance 1964 was not admissible to prove that matter of law, it was useful in that it provided some sign-posts along the way to an understanding of the parameters of the task of determining the legal issues. He agreed that, by virtue of the Taking of Land Ordinance, customary land may only be "taken" by means of a proclamation signed by the Head of State.

Mr Toailoa pressed Sanalala Salanoa to check at his office to see if any proclamation had ever been made in respect of Parcel 2430, and to see if any compensation had been paid by the Government in respect of that Parcel, and to see if there had been any notice had been published in Savali newspaper to indicate the Government’s intention. After being given time to make such a check, the witness testified that "no proclamation had ever been made for the taking of Parcel 2430 by the Government," that "no compensation was paid to Toailoa Siaosi for Parcel 2430," and that no record exists of any "publication in Savali of the proposed taking of the land by the Government," leading to the drawing of an inference that no publication occurred.

The two defence witnesses gave their evidence honestly and in as reliable a fashion as their memories allowed them. After they had each been cross-examined, I thought their testimony failed to provide the defendants with much support.

FINDINGS

As is frequently the case with disputes as to whether land is customary land or public land, the Court is left to assess circumstantial evidence. Because this is not a criminal trial, the standard of proof is not ‘beyond reasonable doubt’ and, in the context of circumstantial evidence, it is not for the plaintiff to exclude the reasonable possibility (or hypothesis) that the disputed land may be public land. I interpolate to state that a strong argument could have been mounted to convince me that, bearing in mind the fact that emphasis needs to be placed upon the word ‘reasonable’, the plaintiff has excluded the reasonable possibility that the disputed land was public land. However, this is a civil trial; the standard of proof is ‘on the balance of probabilities’ and, in the context of circumstantial evidence, it is for the plaintiff to show that it is more probably true than not that the disputed land is customary land and that the conclusion that the disputed land is customary land is beyond the realm of conjecture; guess-work or surmise [see Nominal Defendant v Owens (1978) 22 ALR 128 and Luxton v Vines (1952) 85 CLR 352].

In my judgment, the circumstantial evidence favouring the plaintiff is strong. First, there is the oral evidence of Toailoa Vaosa himself, supported, as it is, in some important respects, by the evidence of Fuamatu Etena Toailoa. The effect of Toailoa Vaosa’s evidence was that the whole (of the disputed land) is "land belonging to the Title Toailoa" and it remains customary land. Secondly, there is the evidence of the Plan (exhibit P1) which, as the evidence showed, is an official Plan dated 1929 tending to prove that the land is customary land and not showing anything to indicate that it was public or government land. Thirdly, there is an absence of any proclamation signed by the Head of State or notice published in the Savali newspaper, and there is an absence of any evidence to the effect that there had been a payment of compensation. Accordingly, there was an absence of any evidence to show that the whole of the disputed land had been alienated as public land; the gazette (exhibit DIA) only refers to the proclamation of ¼ acre as a road, the piece of land that I am satisfied "is covered by seawater now."

I am persuaded by Mr Toailoa’s submission to the effect "that there is overwhelming evidence in support of the plaintiff’s contention that (the disputed) land is customary land of the title Toailoa." I agree that Plan 1733 not only speaks for itself but also is an indication of the disputed land belonging to the Toailoa title.

Occupation affording prima facie evidence of ownership, there was evidence of such occupation by the Toailoa title-holders for many years up to and including the present time. The evidence of coconut trees being more than 30 years old provided confirmation of that occupation.

I find that the reclamation that was applied for by Toailoa Siaosi and approved by the Land Board was "a ¼ acre in to the sea", and not the whole of the disputed land. The surveyor mistakenly surveyed a larger area than ¼ acre, which included some land that had been filled in by Toailoa Siaosi on his own land, because he (the surveyor) had not been briefed adequately as to the Land Board’s approval.

The assertion of ownership by the Land Board, in opposition to the claims of the plaintiffs necessarily implies that the disputed land was compulsorily acquired. But the Land Board is not empowered to exercise such a power. I find, therefore, that the Land Board was acting outside its authority when it entered into the lease.

Articles 14 and 102 of the Constitution were violated, and the relevant provisions of the Taking of Land Act 1964 (section 2, 7 and 14) were not complied with.

I find, on the evidence of Toailoa Vaosa in particular, that the old road is now submerged into the sea and, in a real sense, was swallowed up prior to and/or during Cyclones Ofa and Val. Even if the disputed land comprises (as I think it does) some of the old road (or a public road reserve), there was no evidence that all of the old road had, in fact, been proclaimed as public land under the Samoa Act 1921 and, in any event, that old road does not extend to include any- where near the entirety of the disputed land.

For all these reasons, I am satisfied that the plaintiff has discharged the burden of proving that the disputed land is (and remains) customary land. I am further satisfied that, subject to a defence argument to the contrary, the lease should be invalidated.

A DEFENCE ARGUMENT

It was submitted by Mr Powell, on behalf of the first defendant, that, because the lease was registered in the Land Register in June 1996, this creates a title to the land and, therefore, some indefeasibility of title, to deny the plaintiffs’ claim.

This submission raises for determination the question of whether a Torrens Title system of title by registration exists in Samoa. Apparently, there is no decided case in Samoa directly on point.

Mr Powell contended that the Land Registration Act 1992-1993 equates with the Torrens Title system and that section 16 of that Act imports the notion of indefeasibility of title.

If that contention was uphold, then the disputed land would, by virtue of the subject lease, override the claims of the plaintiffs based, as they were, on the oral evidence of the plaintiffs’ witnesses, the official Plan and the absence of evidence of any prior alienation.

THE TORRENS TITLE SYSTEM OF TITLE BY REGISTRATION - 
DOES IT EXIST IN SAMOA OR NOT?

The Torrens Title system of conveyancing, when in place, tends to simplify titles to land (by making them depend wholly on registration), to facilitate dealing therewith, and to secure indefeasibility of title to registered proprietors. The object of a Torrens Title system is to save persons dealing with registered properties from the trouble and expense of going behind the register in order to investigate the history of the title in question and to satisfy themselves of its validity. The Torrens Title system, which has its roots in South Australia and which was devised by Sir Robert Torrens and which dates from 1858, has spread throughout Australia and New Zealand and it has touched Papua New Guinea. Mr E.A. Francis, in the preface to his authoritative work called "The Law and Practice relating to Torrens Title in Australasia" - 1972 Edition -, said (at page viii - Volume 1):

"The Torrens system has been, is and must continue to be one which is capable of adaptation to the special requirements of a developing society …. (for example) the development of the system in New Zealand against a background of Maori land laws … It appears obvious that some form of registration of title to (customary) lands, along the lines of the Torrens system, but adapted to comprehend a group or clan ownership of land is a necessity".

The Torrens Title system is frequently compared with the registration of deeds system. Statutes have set up such registration of deeds systems. The registration of deeds and instruments under those statutes does not, of itself, affect the passing of title to any estate or interest in land, nor does it add any efficacy to the registered instrument, so far as it operates as an instrument of conveyance. The primary purpose of the establishment of registers is, of course, to constitute a public record of deeds and instruments affecting land. Other advantages are offered. It is the execution and delivery of the deed which affects the conveyance or creation of an estate or interest in land. Its registration affects its priority, but adds nothing to its validity or to its operation. The register in which its registration is affected is a register of deeds and instruments, not a register of titles.

Under the Torrens Title system, the register is primarily a register of titles. As Mr E.A. Francis put it in Volume 1 supra (at p.7):

"At the time land is brought under the system, the identity of the parcel is established and the nature of the title to it (whether freehold or leasehold) and the identity of the person or persons in whom that title is vested are ascertained. The issue of the certificate of title, and its inclusion in the register, set upon these matters the unprimature of the State ….. (It) is the official act of registration which transfers or creates the estate or interest in the land".

The substance of the various schemes by which land is brought under the Torrens Title system is to substitute conveyance by registration for conveyance by deed.

In Halsbury’s Laws of Australia, Volume 22, Chapter 355, at page 666, 615 the following view is expressed:

"The purpose of the legislation was to simplify titles to land by making them depend wholly on registration and independent of prior titles (Registrar of Titles v Paterson (1876) 2 AC 110 at pp.116-117). The Torrens system does this by providing that the transfer of title is effected, not by execution of an instrument by the parties, but by registration of the relevant dealing by the relevant land titles office. The transfer of title by registration …. prompted the observation that the Torrens system ‘is not a system of registration of title but a system of title by registration’ (Breskvar v Wall (1971) 126 CLR 376 per Barwick C.J. at p. 385).… Although the Torrens system is one of title by registration, the title does not depend on the register, but on the provisions of the legislation".

As to whether a Torrens Title system is in place or as to whether land has been brought under the system depends upon the Acts themselves.

The Torrens Title system extends to and governs transactions in relation to all "land" which has been brought under its operation in one or other of the modes permitted by the enactments. Land is "brought under" or made subject to the provisions of the enactments either by its grant or alienation from the State or by the issue of a "certificate of title" thereto. The enactments in the various jurisdictions are expressed in different terms. In New Zealand, land subject to the Act (of 1952) is that which:-

(a)	has already in any manner become subject to any former Land Transfer Act;
(b)	is, after 1 January 1953, alienated or contracted to be alienated from the Crown in fee simple;
(c)	is, after the same date, the subject of an order under the provisions of any Maori Land Act having the effect of vesting it in any person in freehold tenure; or
(d)	after the same date becomes vested in any person for an estate in fee simple in possession by virtue of any Act of the General Assembly (section 10).

This is to be contrasted with the relatively succinct wording of the South Australian Act which, for the purpose of bringing land under the Act, provides that land is divided into "land hereafter alienated in fee from the Crown" and "land heretofore alienated in fee from the Crown" (section 25), and provides that "as to land hereafter alienated in fee from the Crown, the same shall, immediately on alienation, be subject to the provisions of this Act (section 26)."

When an estate or interest in land is brought under the operation of an Act or Ordinance in this way, the relevant grant or certificate of title is deemed to be registered under the provisions of an Act or Ordinance as soon as it has been recorded or marked by the Registrar with the folio and volume as embodied in the register. In general, when an estate in fee simple is thus brought under the system, it remains under the system until it escheats or is surrendered to the Crown (or the State).

Land may be brought under the system by way of voluntary applications and by way of compulsory legislation. The New Zealand provisions of the Land Transfer (Compulsory Registration of Titles) Act 1924, now incorporated in the Land Transfer Act 1952, became the prototype or pattern of similar legislation later introduced in Australian States, because that system operated so successfully that little land alienated from the Crown and not being Maori land still remains outside the provisions of the New Zealand Act. The South Australian legislature sought, with similar success, to achieve a similar objective.

In nearly all jurisdictions there has been a diminution of the areas of alienated land remaining under common law title and a conversion of limited or qualified certificates of title to ordinary certificates of title.

The status of title which is issued to the registered proprietor varies between jurisdictions. In most jurisdictions the legislation provides that the certificate is conclusive evidence that the person named therein is the proprietor of the estate referred to. The courts have upheld the status of the certificate of title as conclusive evidence of title and as crucial to the integrity of the Torrens system, particularly in their acceptance of immediate indefeasibility.
Although the concept of indefeasibility of title is central to the protection which all Torrens legislation gives to the registered proprietor, the term itself (‘indefeasible’) is not always used in the legislation. However, the concept, identified by a variety of phrases to describe this quality of the registered title, including, besides ‘indefeasible’, ‘paramount’, ‘unimpeachable’, ‘unexaminable’ and ‘conclusive’, must be present, in the relevant statute, otherwise a Torrens Title system is unlikely to be in place. The general principle is that registered interests should have priority in the order of registration and over unregistered interests. Section 16 of the Land Registration Act is a far cry from the legislative enactments which establish indefeasibility in other jurisdictions. It merely operates to help to ensure that instruments are registered and, to that extent, it modifies the deed system. Without creating legal title to land, the section simply means that legal title to land cannot be affected by any instrument "until and unless such instrument is registered." In other words, dealings with land so as affect title are conditional upon registration.

In my judgment, a Torrens Title system does not exist in Samoa. Neither freehold land nor government (or public) land has been brought under the operation of such a system, and certainly customary land has not been so affected. The system of registration created by the Land Registration Act 1992-1993 is a system of registration of title; it is not a system of title by 
registration.

SOME OTHER ASPECTS OF THE LAW

1.	All land in Samoa is either customary land, freehold land, or public (or government) land (see Article 101 of the Constitution).
2.	Public land includes all land lying below the mean high water mark (see Article 104 of the Constitution).
3.	Any alienation or disposition of customary land is absolutely prohibited except where an Act of Parliament authorises either "the granting of a lease or license in respect thereof;" or "the taking of customary land for public purposes" (see Article 102 of the Constitution). "Public purpose" is defined under section 2 of the Taking of Land Act 1964.
4.	No property, or any right or interest in any property shall be acquired compulsorily without the payment of adequate compensation within a reasonable time (see Article 14 of the Constitution).
5.	The Taking of Land Act 1964 governs the taking of land for public purposes. The Act empowers the taking of either customary or freehold land, but only by the proclamation of the Head of State (see sections 7 and 14). The Act further provides for there to be the payment of full and just compensation and it sets out the procedures for the determination of compensation (see Part III of the Act).
6.	Public land, which is not for the time being utilised for a public purpose, is described as ‘government land’ under section 2 of the Lands, Survey and Environment Act 1989.

As has been previously indicated, I am persuaded by Mr Toailoa that, as Samoa has a system of registration of deeds, and not a Torrens Title system, no person can offer a better title than he or she had. If a deed (here the document is the lease) is invalid (as I hold that it is), "the title is impeachable however many subsequent conveyances or other dealings had been made" (Hinde, McMorland and Sim, Introduction to Land Law (2nd Edn.) - p.44, para 2.011).

Section 30 of the Land Registration Act empowers the Registrar to correct any errors in the Land Register upon such evidence as appears to him to be sufficient. A declaration by this court that the lease is invalid should be seen as providing sufficient evidence, even though the Registrar was not a party to the present proceedings.

ORDERS

It is ordered:

1.	By way of declaratory judgment:

1.1	that the disputed land is not government land.
1.2	that the disputed land is customary land.

2.	That the subject lease be annulled and removed from the Land Register.

3.	That the first defendant pay to the plaintiffs their costs of action to be fixed as to quantum by me at or before 4.00 p.m. on 8 August 2000, each of the parties to be at liberty to lodge, no later than 2.00 p.m. on 8 August 2000, a submission as to the quantum of costs.

I am inclined to make a further order that there be no order as to costs as between the plaintiffs and the second defendant, but I will hear counsel on that issue.

JUSTICE WILSON

TOAILOA VAOSA and TOLEAFOA SOLOMONA TOAILOA

V

ATTORNEY GENERAL AND LEATAATA TOAILOA

DECISION AS TO THE QUANTUM OF COSTS

1.	In exercising my discretion to fix the quantum of the plaintiffs’ costs, I have had regard to the written submissions of counsel for the plaintiffs dated 8 August 2000 and of counsel for the first defendant dated 8 August 2000.

2.	As there was no monetary claim here and as it is not easy to convert the claim of the plaintiffs, in respect of which they were successful, into money terms, the costs scale set out in the Second Schedule to the Supreme Court (Fees and Costs) Rules 1971 as amended is of no practical assistance in quantifying the costs.

3.	I find the submissions of the plaintiffs’ counsel to be persuasive to a great extent. I reject the submissions of counsel for the first defendant, in particular, reasons (a), (b) and (c) are not sound at law to justify depriving successful parties of their costs; in any event, this was not a test case as far as the Court was concerned.

4.	I fix the plaintiffs’ costs at $12,500.00. (Twelve thousand five hundred tala).

8 August 2000

JUSTICE WILSON