IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

SU’EMALO KASIMANI LAUTUSI
of Lalomanu and Vaiala Manager,
for himself and for the clan of SIONA.
First Plaintiff

AND

MALAGA SAMUELA, LELAFU KOLOLI,
and MALO SAMASONI
for himself and for the clan of SOLOMONA,
MAUMALO IOANE
of Alafua for himself and for the clan of ALAMA,
OSOPO F. KELENI
of Lalomanu for himself and for the clan of MISIKI
and AUFATA APA
of Lalomanu for himself and for the clan of PENITA.
Second Plaintiffs

AND

THE ATTORNEY GENERAL
in right of the HON TAGALOA ENOKA FERETI PUNI Deputy President,
TAULAPAPA FAIMAALA PHILLIPS Samoan Judge
and MATAAFA EKEROMA LEMAU
all being judges of the Land & Titles Court
a body constituted under the Land & Titles Act 1981.
First Defendant

AND

TAUA AGAFILI TOLOVA’A of Alafua and the 6th Petitioners,
NONUMALO L SOFARA of Vaivase-tai and the 9th Petitioners,
TAUA FANUELI of Lepea and the 10th Petitioners,
TALA LEFALE of Lalomanu and the 11th Petitioners
FA’ASI’I FA’ATIGA of Lalomanu and the 12th Petitioners,
FASIMALO FARANI of Faatoia and the 13th Petitioners,
TAUA LATU of Lalomanu and the 14th Petitioners,
ANUILAGI LEUGA FALEVA’AI of Satitoa and the 15th Petitioners
FANASOAIA FA’AMOANA of Mutiatele and the Second Respondents.
Second Defendants

Counsel: TK Enari for plaintiff
FA Ropati for second plaintiffs
LS Mulitalo for first defendants
FP Meredith for second defendants

Hearing: 14 October 2003
Judgment: 24 October 2003

JUDGMENT OF SAPOLU CJ

Background

In 1988 the Land and Titles Court sitting as a Court of first instance dealt with petitions from various parties concerning the title Fuataga of the village of Lalomanu at Aleipata. On 11 July 1988 that Court delivered its decision. In its decision the Court decided, inter alia, to appoint Siilata Ioane Alama from the Alama sub-clan of the heirs of Fuataga Faualii to be the holder of the title Fuataga and gave the pule (authority) over the title Fuataga to specified heirs of Fuataga Faualii. At the first instance hearing, each sub-clan of the heirs of Fuataga Faualii formed its own party and had separate representation; they did not join together to form a single party with one representation.

After the decision of the Court was delivered, appeals against the decision were filed by some of the other parties. The various sub-clans of the heirs of Fuataga Faualii then decided to unite and formed a single party under the leadership of Fuataga Ioane Alama to contest the appeals and they filed an elaborate and comprehensive joint response in writing to the appeals. That joint response together with the appeal statements by the appellants formed part of the record that was placed before the appellate division of the Land and Titles Court. Before the appeals came on for hearing in 1997 Fuataga Ioane Alama had passed away. As a consequence, the first plaintiff and the heirs of Siona which is one of the sub-clans of the heirs of Fuataga Faualii, made application to the appellate Court at the commencement of the hearing of the appeals for separate representation from the other heirs of Fuataga Faualii. There is in the evidence some dispute whether the other heirs of Fuataga Faualii consented to the heirs of Siona having separate representation. But that is not material for present purposes. The appellate Court decided to reject the application for separate representation by the heirs of Siona. It is against that decision that the first plaintiff and the heirs of Siona have filed their present motion for judicial review.

Motion for judicial review

There was a delay in the appellate Court handing down its decision in writing. For that reason the first plaintiff decided to file a motion for judicial review dated 5 June 2000 without continuing to wait any longer. The validity of the decision that was subsequently handed down was questioned by both counsel for the first plaintiff and for the second plaintiffs but that is not material for present purposes as no motion for judicial review of that decision is before this Court. An oral application by counsel for the first plaintiff during the hearing of this matter to amend the first plaintiff’s motion to include review of that decision was rejected as the other parties were entitled to prior notice of such a substantial amendment in order to prepare themselves for the issues raised therein.

The essence of the first plaintiff’s motion is that the decision by the appellate division of the Land and Titles Court not to grant separate representation to the heirs of Siona from the other heirs of Fuataga Faualii was a breach of their right to a fair trial provided under Article 9(1) in Part II of the Constitution which states:

"Right to a fair trial – (1) In the determination of his civil rights and obligations or of any charge against him for any offence, every person is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established under the law. Judgment shall be pronounced in public, but the public and representatives of news service may be excluded from all or part of the trial in the interests of morals, public order or national security, where the interests of juveniles or the protection of the private life of the opinion of the court in special circumstances where publicity would prejudice the interests of justice."

For remedies for the enforcement of the right to a fair trial and the other fundamental rights provided under Part II of the Constitution, Article 4 which is contained in Part II provides:

"(1)	Any person may apply to the Supreme Court by appropriate proceedings to enforce the rights conferred under the provisions of this Part.

(2)	The Supreme Court shall have power to make all such orders as may be necessary and appropriate to secure to the applicant the enjoyment of any of the rights conferred under the provisions of this Part."

In a preliminary hearing, I ruled that this Court has jurisdiction to entertain the first plaintiff’s motion for judicial review. All counsel involved in these proceedings appear to have accepted that ruling because of the clear words of Article 4 and because what has been alleged for the first plaintiff is a breach of the right to a fair trial under Article 9(1).

Hearing of appeals

As it appears from the evidence adduced in the form of sworn affidavits in these proceedings, when the application by the heirs of Siona at the commencement of the hearing of the appeals for separate representation was rejected by the appellate Court, the heirs of Siona then rejoined the other heirs of Fuataga Faualii as a single party under the leadership of Malagamalii Samuela Tootoo who is from the heirs of Solomona, one of the other sub-clans of the heirs of Fuataga Faualii. For the purpose of the hearing of the appeals, the combined party of the heirs of Fuataga Faualii consisted of eleven members. Malagamaalii Samuela Tootoo as the leader and ten others were witnesses. Of those witnesses, three were from the heirs of Siona. These were Taua Mataita who was the leader for the party of the heirs of Siona at the hearing before the Court of first instance and is the uncle of the first plaintiff, Letoa Gase and the first plaintiff. Thus the first plaintiff and the heirs of Siona were well represented and actually participated in the hearing of the appeals.

Proceedings before the Land and Titles Court are inquisitorial; they are not adversarial and lawyers are not allowed to appear as counsel for the parties. In proceedings before the appellate Court, when it is the turn of a party to be examined by the Court, the leader and the witnesses for that party would all move forward to a table in front of the Bench consisting of the Chief Justice or another Judge of the Supreme Court presiding as the President and two Land and Titles Court Judges. The Judges would then ask questions. In practice the Judges would direct most of their questions to the leader of the party under examination but they are not bound to restrict their questions to the leader. The Judges may also put questions to any of the witnesses and that has happened in a number of appeal hearings. The Judges, as a matter of practice, may also allow any member of a party under examination to address the Court if he wants to do so.

Counsel for the second defendants in his submissions pointed out that the evidence shows that during the hearing of the appeals, the Court put many questions to Taua Mataita, the leader of the Siona sub-clan and uncle of the first plaintiff, who was one of the witnesses for the combined party of the heirs of Fuataga Faualii. And Taua Mataita gave answers to those questions.Taua Mataita was also given the opportunity by the Court to explain and clarify his points when he raised his hand. Counsel for the second defendants also pointed out that during the hearing the President of the Court gave the opportunity to any and all witnesses to address the Court if it were their desire to do so, by raising their hands. Given these submissions by counsel for the second defendants which are based on the affidavit evidence and on the transcript of the appeal hearing, I am of the view that not only were the heirs of Siona well represented at the appeal hearing but they also actually participated in the hearing and were given adequate opportunity to present their views. The elaborate and comprehensive written statement which the heirs of Siona had jointly prepared with the other heirs of Fuataga Faualii in response to the appeal statements filed by the appellants was also before the appellate Court as part of the record for consideration by the Court in arriving at its decision. Thus even if the application by the heirs of Siona for separate representation was rejected by the Court, the heirs of Siona were actually given the opportunity to participate at the hearing and they did so. They were also given adequate opportunity to be heard by the Court on what they wanted to say and they were actually heard by the Court on what they said. Their joint response with the other heirs of Fuataga Faualii to the appeal statements by the appellants was also before the Court for its consideration. In this respect, I am of the clear view there was no breach of the plaintiff’s constitutional right to a fair trial. It will not be right to treat the denial of the application by the heirs of Siona for separate representation to be, on its own, synonymous with a denial of the constitutional right to a fair trial and to leave out from consideration the other relevant circumstances that I have already referred to.

There are two other matters raised in the sworn affidavit of the first plaintiff but were not pursued or actively pursued by his counsel at the hearing of submissions. I still have to refer to those matters briefly. It is suggested that Malagamaalii Samuela Tootoo, the leader of the combined Fuataga Faualii party, may not have presented every relevant point on behalf of his party. This is strongly opposed by the said Malagamaalii in his sworn affidavit. But whatever is the truth with regard to this matter, the other sub-clans of the Fuataga Fuaalii clan including the heirs of Siona were given the opportunity to be heard on what they wanted to say and they were in fact heard by the Court on what they wanted to say. There was also a suggestion that at the appeal hearing the question asked by the presiding President as to why all the parties should not be heirs of the title Fuataga suggests that the presiding President had prejudged the appeal. I accept the explanation given by counsel for the second defendants that from the transcript of the proceedings, the question by the presiding President actually arose out of a statement made by the late Fuataga Ioane Alama in the proceedings before the Court of first instance.

All in all then, the motion for judicial review is dismissed.

In view of that conclusion, I intend no discourtesy to counsel for the second plaintiffs or first defendant by not referring to their submissions. It is now not necessary to go any further.

Counsel to file memorandum as to costs within 7 days if they wish to do so.

CHIEF JUSTICE

Solicitors:
Kruse, Enari & Barlow Law Firm for plaintiff
Petaia Law Chambers for second plaintiffs
Attorney General’s Office for first defendants
Meredith & Ainuu Law Firm for second defendants