IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

NU’U POUNIU, NUU POGISA, LEATINU’U SIAINIU,
NIUAVA MALO and LEATINU’U FILIFILI
of Vailoa.
Applicants

AND

THE LAND TITLES INVESTIGATION COMMISSION
First Respondent

AND

SASA FALETOI
of Vailoa.
Second Respondent.

15 July 2004
[Ed: Date uncertain]

JUDGMENT OF DJ CARRUTHERS J

This is an application to declare invalid or void and/or to quash the First Respondent’s decision in respect of Claim 97.

It is brought on three grounds.

The first is whether the prescribed quorum of the First Respondent heard Claim 97.

The second relates to the position of Secretary to the First Respondent which also goes to the question of quorum.

The third ground involves a consideration of the materials before the First Respondent and whether it failed to take into account relevant considerations.

I am giving the Courts decision now and will produce full reasons later given my term in office expires here today.

I am satisfied that the first ground is not made out. Briefly the applicants’ argument is that, at the time, there was no validly appointed Director of Lands and Survey who could authorise a Deputy to sit for him. I find that the Director’s original appointment was extended by consent and subsequently confirmed and that this ground is not available. I think also, that s.9 of the Land Titles Investigation Act 1966 can be called in aid here.

The second ground raised is whether one of the members of the First Respondent held himself out to be the Secretary and whether this was appropriate or fatal to the membership of the First Respondent. It is now clear that no one was appointed Secretary in accordance with the Act and the consequence of that failure meant that statutory responsibilities (e.g. keeping a record of the proceedings) were neglected. I do not think that this goes to the question of quorum but, I think there was here “procedural impropriety” to a degree which requires the Courts intervention particularly when I add to that defect the problems for the applicants in identifying the composition of the First Respondent in the light of the perceived ambiguity of Mr Fong’s position.

The final ground relates to the considerations which exercised the minds of the members of the First Respondent. No record or recording of the proceedings was kept. In my view this failure is fatal to the determination. A valiant attempt was made to remedy this defect by the provision of affidavits from three of the four members detailing what materials were considered. I am grateful for that effort. But plainly they are a less than accurate attempt at reconstruction nearly a year after the event and in a situation where no one kept notes of the actual proceedings. This Court on review is therefore deprive of the opportunity to assess this issue and this breach in my view is both a statutory one, a failure to comply (or be able to comply) with the directions of The Honourable Chief Justice of Samoa, Sapolu CJ in his earlier decision in this matter and a breach of the rules of natural justice. It is in my view a fatal defect.

In the event therefore I find for the applicants and make the declaration sought. The decision in respect of claim 97 is declared to be invalid and the matter is remitted to the First Respondent for re-hearing in accordance with the Act.

In these circumstances the applicants are entitled to costs which can be the subject of submissions on the papers filed within 14 days.

Orders accordingly.

DJ CARRUTHERS J