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Nofoaiga v President of the Land and Titles Court [2008] WSSC 52 (29 July 2008)

IN THE SUPEME COURT OF SAMOA
HELD AT APIA

IN THE MATTER: of an Application for Judicial Review by way of extraordinary
remedy of the Supreme Court (Civil Procedure Rules) 1980

BETWEEN:

ALE ULUGIA NOFOAIGA
of Toamua, a Samoan Matai
Applicant

AND:

PRESIDENT of the LAND AND TITLES COURT
and THE LAND AND TITLES COURT
established under the Land and Titles Act 1981 and
in accordance with Article 103 of the Constitution.
Respondents

Counsel: L T Malifa for applicant
R Wendt and M Betham-Annandale for respondents

Hearing: 14 July 2008
Conclusions: 14 July 2008
Judgment: 29 July 2008

JUDGMENT OF SAPOLU CJ

Introduction

[1] At the conclusion of the hearing on the respondents strike out motion on 14 July 2008, I stated my conclusions striking out the applicant’s motion for judicial review and statement of claim. I then indicated to counsel that I will deliver a written judgment in due course and copies of it will be made available to them. This is that judgment.

[2] Following a decision of the appellate division of the Land and Titles Court delivered on 23 February 2007 in which an appeal by the applicant and his party against a decision of the Court at first instance was dismissed, the applicant filed a motion for judicial review, a supporting affidavit and statement of claim on 24 January 2008 in this Court. The motion for judicial review is dated 23 January 2008 and cites the Land and Titles Court and its President as respondents.

[3] On 17 March 2008, the respondents filed a motion to strike out the applicant’s motion for judicial review and statement of claim. These proceedings are concerned with the respondents motion to strike out.

Background

[4] These proceedings originated from a dispute over the construction of a new church building on land situated in the village of Toamua. The name of the land is Tau Toamua and it pertains to the title Ale. It is customary land. As such, the land is held in accordance with Samoan custom and usage and the law relating to the Samoan custom and usage.

[5] The title Ale is one of the paramount matai title of the village of Toamua. It has two branches, Tuamasaga and Lutiala.

[6] The dispute over the construction of a new church building over the said land is between Ale Vena, the holder of the title Ale in the Tuamasaga branch, and his side of the family and Ale Nofoaiga, the holder of the title Ale in the Lutiala branch, and his side of the family. So the dispute is within the Ale family between its two branches.

[7] The dispute came about in this way. The land Tau Toamua has been the subject of a number of decisions by the Land and Titles Court and the title Ale in both its branches of Tuamasaga and Lutiala hold joint and equal authority (pule) over it.

[8] In or about 2004, Ale Nofoaiga who is the applicant for judicial review in these proceedings decided to build a new church on the land Tau Toamua. Ale Vena objected to the building of the new church by seeking prohibitory orders from the registrar of the Land and Titles Court and the President of the Court. Even though Ale Nofoaiga states in his affidavit of 18 January 2005 that Ale Vena consented to the building of the new church, it is clear from the documentation filed in these proceedings that that was not so.

[9] Ale Vena seems to have agreed to the bringing by Ale Nofoaiga of a new religious denomination into Toamua, but that is a different thing from consenting to the construction of a new church building on the land Tau Toamua over which Ale Vena and Ale Nofoaiga hold joint and equal authority.

[10] On 15 December 2004 Ale Nofoaiga wrote to the President of the Land and Titles Court stating that construction of his new church will continue but if after Court proceedings his church has to be dismantled, he would obey.

[11] On 4 January 2005, the Alii and Faipule of Toamua wrote to Ale Nofoaiga to stop the construction of his new church until Court proceedings were completed. Ale Nofoaiga rejected the letter from the Alii and Faipule of Toamua.

[12] On 2 March 2005, Ale Vena wrote to the President of the Land and Titles Court that Ale Nofoaiga was starting construction of his new church on land to which he and Ale Nofoaiga hold joint and equal authority.

[13] On 2 May 2005, the President of the Land and Titles Court directed the registrar of the Court to set a prompt hearing of this matter between Ale Vena and Ale Nofoaiga. The matter was then set down for hearing before the Land and Titles Court at first instance on 14 June 2005.

Decision of the Land and Titles Court at first instance

[14] A copy of the decision of the Court at first instance which was delivered on 24 June 2005 is attached to the affidavit of 18 January 2008 filed by Ale Nofoaiga in support of his motion for judicial review.

[15] The said decision of the Court at first instance shows that both Ale Vena and his party and Ale Nofoaiga and his party had filed petitions for determination by the Court.

[16] The petition by Ale Vena and his party shows that there are lands in Toamua over which the title Ale in the Tuamasaga branch of the title Ale holds sole authority and there are also lands in Toamua over which the title Ale in the Lutiala branch holds sole authority. However, Ale Vena claimed that the land Tau Toamua on which Ale Nofoaiga was building his church is under the joint and equal authority of the title Ale in both its branches. That had been determined by the Land and Titles Court in its decision in LC 7059 of 7 April 1981.

[17] Ale Vena and the branch of Tuamasaga also stated in their petition that there had been many previous discussions about this matter but they had never consented to the construction by Ale Nofoaiga of his new church on the land Tau Toamua.

[18] Ale Vena and his party in their petition then sought, inter alia, an order for Ale Nofoaiga to build his new church on land to which he holds sole authority.

[19] On the other hand, Ale Nofoaiga and his party in their petition claimed that the parts of the land Tau Toamua occupied by members of each of the two branches of the family have been made clear (ua mavaevae). They also claimed that Ale Nofoaiga’s religious denomination had been established for some time and their services had been held in the house of Ale Nofoaiga without any interference by Ale Vena. That the part of the land on which the church was being built had also been occupied by Ale Nofoaiga for a long time. An order was then sought to continue with their new church.

[20] It should be noted at this point that the practice of the Land and Titles Court at first instance is that apart from the petitions, parties are also required to file written statements which set out in detail their complaints, the grounds of their complaints and the relief sought. This is standard practice.

[21] The decision of the Land and Titles Court at first instance also shows that the Court found as a fact that the land on which Ale Nofoaiga had built his church is the land of Tau Toamua to which Ale Vena and Ale Nofoaiga hold joint and equal authority.

[22] The grounds of the decision reached by the Court may be stated as follows:

(a) Ale Vena had agreed to the religious denomination of Ale Nofoaiga being established in Toamua but Ale Vena did not consent to the construction of the new church building by Ale Nofoaiga on the land Tau Toamua.

(b) On 18 June 2004 Ale Vena filed with the registrar of the Court a petition against Ale Nofoaiga to stop the construction of his new church and that petition was served on Ale Nofoaiga on 21 June 2004.

(c) On 14 December 2004 the office of the registrar of the Court received an application by Ale Vena to stop Ale Nofoaiga’s church which was about to be built on the land Tau Toamua.

(d) On 15 December 2004 Ale Nofoaiga wrote to the President of the Land and Titles Court that the construction of his church will continue, but if after Court proceedings his church has to be dismantled he would obey.

(e) On 4 January 2005 a letter by the Alii and Faipule of Toamua was delivered to Ale Nofoaiga to stop the construction of his church but Ale Nofoaiga rejected that letter.

(f) On 2 March 2005 a letter was received wherein Ale Vena advised the President of the Land and Titles Court that construction of Ale Nofoaiga’s church had started on the land to which he and Ale Nofoaiga hold joint and equal authority without his consent.

[23] At the heart of the petition by Ale Vena was his plea to the Court for an order to dismantle the church which had been built by Ale Nofoaiga.

[24] It also appears from the decision of the Court of first instance that the Court did visit and inspect the church and the land on which it was being built. From that inspection the Court confirmed that the land on which the church was being built is the land Tau Toamua which is under the joint and equal authority of Ale Vena and Ale Nofoaiga. It is also noted in the Court’s decision that both Ale Vena and Ale Nofoaiga stated to the Court during its inspection of the land that the land on which the church was being built is land held under their joint and equal authority.

[25] The Court in its decision then held, inter alia, that it has confirmed that the church built by Ale Nofoaiga was built without the consent of Ale Vena and therefore it should be dismantled within 6 months.

Application for leave to appeal

[26] Following the decision of the Court at first instance, on 24 June 2005, Ale Nofoaiga on 24 August 2005 filed an application for leave to appeal to the appellate division of the Land and Titles Court.

[27] The grounds of appeal cited in the application for leave to appeal are those provided in s.79 (1) (f) and (g) of the Land and Titles Act 1981. These grounds are that the decision of the Court of first instance is wrong in law or not in accordance with custom and usage as provided in s.79 (1) (f) and that the decision of the Court of first instance was manifestly against the weight of the evidence adduced at the hearing of the petition as provided in s.79 (1)(g).

[28] The application for leave is also based on alleged breaches of Articles 11, 14 and 15 of the Constitution. Article 11 provides for freedom of religion, Article 14 provides that no property and no right over or interest in any property shall be taken possession of or be acquired compulsorily without payment of adequate compensation, and Article 15 provides for freedom from discrimination.

[29] In accordance with the procedures of the Land and Titles Court for an application seeking leave to appeal, Ale Vena as intended respondent filed a response to Ale Nofoaiga’s application for leave to appeal. Ale Nofoaiga as the applicant for leave then filed a response to the response from Ale Vena.

[30] In terms of s.85 of the Land and Titles Act 1981, every application for leave to appeal is to be heard before the President of the Court. The President sits alone when hearing an application for leave and he may grant or refuse leave to appeal.

Leave to appeal

[31] Ms Betham – Annandale who presented the submissions for the President and the Land and Titles Court as respondents informed this Court in her submissions that the President granted leave to Ale Nofoaiga to appeal on 14 November 2006. A copy of that decision is attached to one of the affidavits filed for the respondents. However, the appellate division of the Land and Titles after having the appeal dismissed it as shown in its decision which was delivered on 23 February 2007.

Motion for judicial review

[32] By notice of motion dated 23 January 2008, Ale Nofoaiga as applicant seeks judicial review of what is said to be the decision of the President in LC 10774/ 10774 P1 of 23 February 2007 refusing the grant of leave to Ale Nofoaiga to appeal the decision of the Court of first instance delivered on 24 June 2005.

[33] There are five grounds in support of the motion for judicial review of the alleged decision by the President refusing the applicant Ale Nofoaiga leave to appeal the decision in LC 10774 / 10774 P1 of 24 June 2005 by the Court at first instance. These are:

(a) The President has no jurisdiction to decide on fundamental rights provided for under the Constitution, in particular the fundamental rights provided under Articles 11, 14 and 15.

(b) The President did not consider the issue of the long, continuous and undisturbed occupation by the applicant of that part of the land Tau Toamua where his church was being built or in the alternative the issue of adverse possession.

(c) The President erred in accepting paragraph 3 (e) (1) – (7) of the decision by the Court at first instance as conclusive notices prohibiting the applicant from building his church on the land Tau Toamua without also considering similar notices issued by the applicant against Ale Vena and how the notices referred to in paragraph 3 (e) (1) – (7) relate to ss.49 and 50 of the Land and Titles Act 1981.

(d) The President did not consider the evidence given by the applicant that:

• (i) Ale Vena had built his residential house and guest house on his part of the land Tau Toamua by his own pule and authority without consulting the applicant and despite objections from the applicant.
  
• (ii) The land Tau Toamua has been allocated in parts between Ale Vena and Ale Nofoaiga.
  
• (iii) Ale Vena had consented to the building of the new church by the applicant Ale Nofoaiga.
  

(e) The President erred in taking into account the previous decisions of the Land and Titles Court in LC 2346, LC2447A, LC3133, LC7059 and LC7112 as evidence of the joint and equal authority of the two branches of the title Ale over the land Tau Toamua and as evidence that there is no Court decision which has "subdivided" the land between the two branches of the title Ale.

[34] A statement of claim and an affidavit by the applicant sworn on 18 January 2008 in support of his motion were also filed as required by rule 196 of the Supreme Court (Civil Procedure Rules) 1980.

Strike out motion by the respondents

[35] By motion dated 17 March 2008, counsel for the respondents sought to strike out the applicant’s motion for judicial review and statement of claim as being frivolous, vexations and an abuse of process. The grounds of the strike out motion are:

(a) The applicant’s pleadings against the respondents are unintelligible and unclear and therefore the respondents do not know for certain the allegations made against them.

(b) The President of the Land and Titles Court did grant to the applicant leave to appeal the decision LC 10774 / 10774 P1 of the Court at first instance delivered on 24 June 2005.

(c) The pleadings in the motion by the applicant fail to disclose any of the established grounds for review by the Supreme Court.

(d) Notice was not served on the respondents pursuant to s.21 of the Limitation Act 1975.

(e) The statement of claim discloses no reasonable cause of action maintainable in law.

[36] By notice of opposition dated 11 April 2008 to the strike out motion, counsel for the applicant seeks to amend his motion for judicial review so as to delete the reference in the motion to the alleged refusal to grant leave to appeal to the applicant. As it will appear later, this amendment still does not dispel the difficulties created by the applicant’s motion for review. As Ms Betham-Annandale, counsel for the respondents, states in her submissions, the proposed amendment has only made the motion for judicial review and statement of claim more unintelligible than before. The difficulties that have arisen are partly due to the assertion by counsel for the applicant that the President refused to the applicant leave to appeal when that was not so.

[37] Following the applicant’s notice of opposition to the respondents strike out motion, counsel for the respondents filed a second motion seeking to strike out the applicant’s notice of motion seeking leave to stay execution of the decisions made by the Land and Titles Court. In the second motion, counsel for the respondents also seeks an order for the removal of the name of the President of the Land and Titles Court from being a party to these proceedings as it is not appropriate to personally name the President as a party.

Discussion

(a) Motion for judicial review

[38] The applicant’s motion seeks a review of the alleged decision made by the President of the Land and Titles Court refusing leave to the applicant to appeal the decision of the Land and Titles Court at first instance which was delivered on 24 June 2005. As pointed out by counsel for the respondents, this is factually incorrect because the President did grant leave on 14 November 2006 to the applicant to appeal the decision of the Court at first instance to the appellate division of the Land and Titles Court. So the factual basis of the motion for review is misconceived.

[39] The documentation filed on behalf of the applicant in these proceedings also includes a copy of the decision delivered by the appellate division of the Land and Titles Court on 23 February 2007 on the appeal by the applicant dismissing that appeal. This clearly suggests that leave to appeal had been granted by the President for under the Land and Titles Act 1981, the appellate division of the Court would not have heard and determined the applicant’s appeal unless leave had first been granted to appeal by the President.

[40] The factual mistake on behalf of the applicant affects the whole of the motion for judicial review and makes it factually incorrect.

[41] The same factual mistake is repeated in the statement of claim and also makes the statement of claim factually incorrect.

[42] Counsel for the applicant by motion sought to remedy the situation by seeking to amend his motion for judicial review by deleting the words "refusing the grant of leave to appeal the decision [of the Court] at first instance LC10774 / 10774 P1 of June 25, 2005." However, that proposed amendment still does not remedy the situation.

[43] What the proposed amendment seems to achieve is that what is sought to be reviewed pursuant to the amendment is the decision of the President in LC 10774 / 10774 P1 of 23 February 2007. But the President did not make such a decision. The decision in LC 10774 / 10774 P1 of 23 February 2007 is a decision of the appellate division of the Land and Titles Court comprising of the President and two Samoan judges under s.77 (1) of the Land and Titles Act 1981. It is not a decision of the President alone. It is a decision of the Land and Titles Court constituted under s.77 to hear appeals. The proposed amendment also does not cure other parts of the motion for review which refer to the decision to be reviewed as that of the President.

[44] The proposed amendment also says nothing about the statement of claim which therefore remains unaltered.

[45] In relation to the grounds in support the motion for review, the first ground is that the President has no jurisdiction to decide on fundamental rights provided under Articles 11, 14 and 15. In support of this ground, counsel for the applicant referred to Article 4 of the Constitution. Article 4 provides that any person may apply to the Supreme Court by appropriate proceedings to enforce his fundamental rights and the Supreme Court may by necessary and appropriate orders secure to the applicant the enjoyment of his fundamental rights. There is nothing in Article 4 which states or implies that the Land and Titles Court does not have jurisdiction to decide on fundamental rights. If counsel for the applicant has the time to research the decisions of the Land and Titles Court in the last ten years or so, he would find that there have been cases in which the Court has dealt with some of the fundamental rights provided in the Constitution.

[46] It is also somewhat of a surprise that the first ground of the motion for review is that the President of the Land and Titles Court has no jurisdiction to decide on fundamental rights when the application for leave to appeal by the applicant to the President raised questions of fundamental rights and was based in part on alleged breaches of Articles 11, 14 and 15 of the Constitution. This appears in pages 1, 3 and 4 of the applicant’s application for leave to appeal. Does the first ground of the motion for review mean then that even though the applicant in his application for leave to appeal raised Articles 11, 14 and 15 and alleged breaches thereof the President should say nothing about it. If the applicant thinks that the President has no jurisdiction to decide on fundamental rights then why did he refer to Article 11, 14 and 15 in pages 1, 3 and 4 of his application for leave to appeal. He should have told the President not to consider those parts of his application for leave to appeal if he thinks the President has no jurisdiction to decide on fundamental rights. But he did not do so. It is only after his appeal was dismissed that the applicant is now saying through his counsel that the President has no jurisdiction in the matter. This is an abuse of process.

[47] Perhaps I should refer to Article 73 (2) of the Constitution which provides:

"(2) Without prejudice to any appellate or revisional jurisdiction of the Supreme Court, where in any proceedings before another court (except for the Court of Appeal) a question arises as to the interpretation or effect of any provision of this Constitution, the Supreme Court may, on the application of any party to the proceedings, determine that question and either dispose of the case or remit it to that other court to be disposed of in accordance with the determination."

[48] There is nothing in Article 73 (2) which precludes the Land and Titles Court from dealing with an issue concerning any fundamental right which arises in proceedings before the Court. What Article 73 (2) does is to allow a party to proceedings before another Court which would therefore the Land and Titles Court to apply to the Supreme Court to determine any question which arises as to the interpretation or effect of any fundamental right provision in the Constitution. It does not preclude the Land and Titles Court or its President from dealing with fundamental rights when they arise in that Court. So Article 73 does not support the first ground of the motion for review that the Land and Titles Court or its President has no jurisdiction to decide on fundamental rights provided under the Constitution.

[49] In my view, the President in proceedings for leave to appeal and the Land and Titles in the hearing and determination of an appeal has jurisdiction to decide on issues of fundamental rights if they arise in those proceedings. The alternative would be to refer such issues to the Supreme Court for a determination.

[50] I should also point out that I agree with Ms Betham –Annandale who presented the submissions for the respondents that the proceedings before the Land and Titles Court at first instance, the proceedings before the President on the application for leave to appeal, and the proceedings before the appellate division of the Land and Titles Court which heard and determined the appeal were concerned with the question of the joint and equal authority of Ale Vena and Ale Nofoaiga over customary land on which Ale Nofoaiga had built his church. Those proceedings were not concerned with freedom of religion as provided in Article 11, or the compulsory acquisition of any property or right over or interest in any property without payment of adequate compensation as provided in Article 14, or freedom from discrimination as provided in Article 15. So those constitutional provisions are irrelevant to the real issue that was before the Land and Titles Court.

[51] In relation to the second ground of the motion for review, namely, that the President did not consider the issue of the long, continuous and undisturbed occupation by the applicant of that part of the land Tau Toamua on which he has built his church or in the alternative the doctrine of adverse possession, it must be borne in mind that the real question the President was concerned with was whether leave to appeal should be granted or refused. And leave to appeal was granted to the applicant

[52] It must also not be overlooked when considering the second ground of the applicant’s motion for review that the land in question is customary land and not freehold land. In terms of Article 101 of the Constitution, customary land means land held in accordance with Samoa custom and usage and the land relating to Samoan custom and usage. This must be how the Land and Titles Court at all three stages of the proceedings before that Court viewed this land.

[53] It is not clear whether the issue of long occupation by the applicant of part of the land where the church has been built was raised before the Court at first instance as the transcript of the evidence adduced in proceedings before that Court was not produced by the applicant. In any event, long and continuous occupation is not decisive in the determination of the pule or authority over customary land. Occupation may provide some evidence to show who has authority over customary land where such authority is in dispute. But occupation of and authority over customary land are quite different issues. Occupation alone does not necessarily mean that the person who is occupying customary land has the authority over the land he is occupying.

[54] Counsel for the applicant also relied under this ground of the motion for review on the doctrine of adverse possession which he says entitles the applicant to exclusive control, ownership and authority as a matai over part of the land on which he has built his church. I do not agree with this. It has been held by this Court in Western Samoa Trust Estates Corporation v Leniu Faisauvale [1970 – 1979] WSLR 139 per Nicholson C J that the doctrine of adverse possession is not appropriate to customary land.

[55] The doctrine of adverse possession is embodied in ss.9, 10 and 14 of the Limitation Act 1975. However, s.4 of the Act provides that nothing in the Act shall apply to any customary land or titles. Thus the issue of long and continuous occupation or adverse possession raised on behalf of the applicant is not relevant.

[56] It is also not clear whether the issue of long and continuous occupation was raised before the President and whether he took it into account when granting leave to appeal to the applicant. The applicant has not provided a copy of the transcript of proceedings before the President.

[57] It also does not appear that the applicant had raised in his application for leave to appeal the question of his long and continuous occupation of that part of the land Tau Toamua where he has built his church as entitling him to exclusive control, ownership and authority as a matai over that part of the land. The only part of the application for leave to appeal where there seems to be some reference to long and continuous occupation is in p.4. This is with regard to where the applicant says in relation to Article 14 of the Constitution that the church is built on what has been his house site since 1962. I have to say that there is no connection between long and continuous occupation by the applicant of that part of the land where he has his house site and Article 14 which provides that no land should be taken possession of compulsorily without payment of adequate compensation. There is certainly no compulsory acquisition of land involved in this case. I would also have to say that it would be difficult for the President to take into account something that was not raised before him given the absence of any transcript of the proceedings before the President.

[58] With respect it has been difficult to comprehend the second ground of the motion for review. However, there is no doubt that it does not assist the applicant. The second ground is without substance.

[59] The third ground of the motion for review is partly incorrect and partly irrelevant.

[60] The first part of the third ground alleges that the President erred in accepting paragraph 3 (e) (1) – (7) of the decision by the Court at first instance as conclusive notice prohibiting the applicant from building his church on the land Tau Toamua. In my view, this overstates the true position if one is to refer to the decision of the appellate division of the Land and Titles Court of 23 February 2007 as there is no decision of the President of that date.

[61] What the appellate division of the Court says in paragraph 6 of its decision of 23 February 2007 is that the Court has noted the criticisms by the applicant (appellant) of the decision of 24 June 2005 especially of paragraph 3 (e) (1) – (7). The Court has also noted that no interim order had been issued pursuant to ss.49 and 50 of the Act to stop the construction of the church. However, the Court was convinced that paragraph 3 (e) (1) – (7) were only general statements which clearly reflect the stop notices sent by Ale Vena directly to Ale Nofoaiga and copies sent to the office of the registrar. And it was clear from the letter of 15 December 2004 by Ale Nofoaiga to the President that he had received those stop notices and was aware that Ale Vena had filed a petition. Thus, there is nothing in paragraph 6 of the appellate Court’s decision which says that that Court has accepted paragraph 3 (e) (1) – (7) of the decision of the Court at first instance as conclusive notice prohibiting the applicant from building his church on the land Tau Toamua.

[62] There is also nothing inappropriate in what is said by the appellate division of the Court in paragraph 6 of its decision. Ale Nofoaiga, had criticised the decision of the Court at first instance especially paragraph 3 (e) (1) – (7) of that decision during the appeal hearing. The appellate Court would be expected to deal with those criticisms in its decision.

[63] The second part of the third ground of the motion for review is that the appellate Court should have also considered similar notices issued by the applicant against Ale Vena and how the notices referred to in paragraph 3 (e) (1) – (7) relate to ss.49 and 50 of the Act. In the first place, whatever might have been the similar notices sent by Ale Nofoaiga to Ale Vena in relation to different matters are irrelevant. The issue here is the construction by Ale Nofoaiga of a church on customary land to which he and Ale Vena hold joint and equal authority without the consent of Ale Vena.

[64] I also have doubts whether this second part of the third ground of the motion is factually correct. If reference is made to p.2 of Ale Nofoaiga’s application for leave to appeal, he says there that Ale Vena has been building houses and doing other things on the part the land he is occupying without a word from him (Ale Nofoaiga). He also says that he did not stop any of the things done by Ale Vena. So which is correct? What is said in the motion for review signed by counsel that Ale Nofoaiga had also sent similar notices of objection to what Ale Vena was doing on his side of the land Tau Toamua or what is said in the application for leave to appeal signed by Ale Nofoaiga himself that he had said not a word about what Ale Vena was doing on his side of land or had tried to stop it. Without intending any discourtesy to counsel, I think what is said by Ale Nofoaiga himself should be preferred.

[65] As to the other part of ground 3 which states that it should have been shown how the notices referred to in paragraph 3 (e) (1) – (7) of the decision of the Court at first instance relate to ss.49 and 50, that is not necessary. There is no valid reason why that should be done at all. The stop notices by Ale Vena sent directly to Ale Nofoaiga to stop construction of his church are different from the interim orders which can be issued by the President or the registrar under ss.49 and 50 of the Act respectively. It is not necessary to relate one to another. It serves no relevant or useful purpose to do so.

[66] I therefore conclude that ground 3 of the motion also has no substance.

[67] The fourth ground of the motion for review is that the President did not consider certain evidence given by the applicant as set out in ground four. The first evidence is that Ale Vena had built his residential house and guest house on the land Tau Toamua without consulting the applicant and despite objections from the applicant. This ground is irrelevant and seems partly incorrect.

[68] It is irrelevant because the real issue the Land and Titles Court was faced with was the construction of a church by Ale Nofoaiga on land to which he and Ale Vena hold joint and equal authority without the consent of Ale Vena. It seems partly incorrect because Ale Nofoaiga says in p.2 of his application for leave to appeal that he had not stopped the houses, including the guest house, built by Ale Vena. He had not said a word about it. So how can ground four of the motion say that Ale Vena’s residential house and guest house were built despite objections from the applicant when Ale Nofoaiga is saying he had not stopped those houses or said a word about them.

[69] The second evidence which is alleged in the fourth ground of the motion to have been given by the applicant but was not considered by the President is that the applicant had said that the land Tau Toamua has been allocated in parts (mavaevae ona vaega) between Ale Vena and Ale Nofoaiga. Given that the applicant’s application for leave to appeal was granted by the President, it is immaterial whether the President took that matter into account.

[70] However, if reference is made to paragraphs 3 and 4 of the decision of 23 February 2007 by the appellate Court, it is clear that the Court did consider that evidence and decided that there has been no decision by the Court which allocated the land Tau Toamua into parts between the two branches of the title Ale. In paragraph 3.2 of its decision, the Court refers to the evidence of Ale Nofoaiga that the land Tau Toamua has been allocated into two parts between the two branches of the title Ale. In paragraph 4 which follows, the Court confirms that it has not made any decision allocating the land Tau Toamua between the two branches of the title Ale so as to give each branch of the title exclusive authority over its part of the land without interference from the other branch.

[70] So this part of the fourth ground of the motion for review is also without substance.

[71] The third evidence alleged in the fourth ground of the motion to have been given by the applicant but was not considered by the President is that Ale Vena had consented to the construction of the new church. This is also incorrect.

[72] In pp 1-2 of the response by the applicant to the response by Ale Vena to his application for leave to appeal, the applicant says that when he dismantled his old house where his church was conducting its services and constructed a church building on the same site, Ale Vena objected and tried to stop it. He then goes on to say again that Ale Vena objected to the construction of the new church on the site of his house which had been dismantled. So it is clear from what Ale Nofoaiga says that Ale Vena did not consent to the construction of his new church.

[73] The Court at first instance and the appellate Court also both found that Ale Vena did not consent to the construction by the applicant of a new church building.

[74] So this part of the fourth ground of the motion for review is also without substance. As all three parts of the fourth ground of the motion for review are without substance, this ground is not sustainable.

[75] The fifth and final ground of the motion for review is that the President erred in taking into account the previous decisions of the Court as evidence of the joint and equal authority of the two branches of the title Ale over the land Tau Toamua and as evidence that there is no Court decision which has subdivided the land between the two branches. It was not shown how this was erroneous.

[76] It has always been the practice of the Land and Titles Court to find out whether the Court had made any previous decision on a matter before it. That is common judicial practice. It avoids not only the possibility of the Court making conflicting decisions, but it also avoids re-litigation of the same issues that have already been decided in the past. The fifth ground of the motion for review is also without any substance.

[77] All in all then, the applicant’s motion for judicial review is struck out.

(b) Statement of claim

[78] As earlier mentioned, counsel for the respondents also moved to strike out the applicant’s statement of claim in its entirety as disclosing no reasonable cause of action. As mentioned earlier, the amendment sought by the applicant in his notice of opposition dated 11 April 2008 to the respondents strike out motion related only to the motion for judicial review and not to the statement of claim.

[79] The statement of claim is directed at the decision alleged to have been made by the President refusing to the applicant leave to appeal the decision of the Court at first instance of 24 June 2005. As it has already been repeatedly pointed out, this is factually incorrect as the President did grant leave to appeal to the applicant on 14 November 2006. This fundamental error permeates throughout the statement of claim.

[80] The other factually incorrect matter is that in at least five parts of the statement of claim, the decision of 23 February 2007 is referred to as the decision of the President refusing leave to appeal. This is not so. The decision of 23 February 2007 is the decision of the appellate division of the Land and Titles Court dismissing the appeal by the applicant from the decision of the Court of first instance of 24 June 2005. This factual error also permeates throughout the statement of claim.

[81] In spite of the defects in the statement of claim, I have decided to refer to and deal with each of the five causes of action pleaded in the statement of claim.

[82] The first cause of action is that the President in holding that the decision of the Court at first instance does not adversely affect the applicant’s fundamental rights under Article 11, 14 and 15 of the Constitution was acting without jurisdiction. The reason given in the statement of claim is that the President has no jurisdiction to decide on fundamental rights.

[83] As earlier pointed, the President did not of his own motion consider and decide on Articles 11, 14 and 15. Those constitutional provisions were expressly raised by the applicant in his application for leave to appeal. Breaches of Articles 11, 14 and 15 are also alleged in detail in the application for leave to appeal. There is nothing in the application to show that the applicant told the President to ignore Articles 11, 14 and 15 even though he had raised them in his application for leave to appeal and alleged that they have been breached. So if the President, or the appellate Court, has expressed an opinion on Articles 11, 14 and 15 it is because they had been raised by the applicant. For the applicant to say now after his appeal has been dismissed that the President has no jurisdiction to decide on fundamental rights provided in Articles 11, 14 and 15 even though he had raised them in his application for leave to appeal is an abuse of process.

[84] In any event, I have already decided that the President in proceedings for leave to appeal and the appellate division of the Land and Titles Court in the hearing and determination of an appeal have jurisdiction to deal with fundamental rights where they are raised by a party.

[85] I have also expressed agreement with the submission by counsel for the respondents that the proceedings before the Land and Titles Court were concerned with the question of joint and equal authority over customary land on which one of the holders of such authority has built a church without the consent of the other. Those proceedings were not concerned with freedom of religion in Article 11 or compulsory acquisition of land without adequate compensation in Article 14 or freedom from discrimination in Article 15. So those constitutional provisions are irrelevant.

[86] Counsel for the applicant also did not cite any authority to show that acting without jurisdiction can provide a basis for a cause of action in a civil claim. Acting without jurisdiction has traditionally been used as a ground for judicial review but it has not been used in Samoa as the basis of a cause of action in a civil claim.

[87] I conclude therefore that the applicant’s first cause of action is not a reasonable cause of action and is not maintainable in law.

[88] The applicant’s second cause of action is based on the alleged long, continuous and uninterrupted occupation of the land Tau Toamua by the applicant’s grandparents and parents as well as by himself. The applicant claims that the President did not take the matter into consideration. I must say that this pleading cannot constitute a cause of action for a civil claim.

[89] Counsel for the applicant also cited no authority to show that, in law, what he is claiming here can form the basis for a cause of action in a civil claim.

[90] I have also earlier pointed out that the only reference in the applicant’s application for leave to appeal which seems to touch on the question of long occupation of land is where he says at p.4 in relation to Article 14 that his church was being built on what has been his house site since 1962. I cannot find in the application for leave to appeal any reference to long, continuous and uninterrupted occupation of the land Tau Toamua by the applicant, his parents and grandparents. There is also nothing like that in the applicant’s response to the response by Ale Vena to the application for leave to appeal. In other words, on the material before this Court there is nothing to show that the applicant had raised before the President what he is now raising in his second cause of action. So how could the President give consideration to something that was not before him.

[91] I conclude that the second cause of action is not a reasonable cause of action maintainable in law.

[92] The third cause of action is based on adverse possession. I have already explained that the doctrine of adverse possession is not appropriate to customary land. So this cause of action is also not a reasonable cause of action maintainable in law.

[93] The fourth cause of action is rather difficult to comprehend. I regret having said but I do not know what else to say.

[94] It is alleged as part of the applicant’s fourth cause of action that Ale Vena consented to the construction of the new church by Ale Nofoaiga on part of the land Tau Toamua. This is, of course, inconsistent with what Ale Nofoaiga says at pp 1 – 2 of his response to the response by Ale Vena to the application for leave to appeal. Ale Nofoaiga twice says at pp1 – 2 that Ale Vena objected to the construction of the new church. He also says at p.1 that Ale Vena tried to stop it. Ale Nofoaiga then goes on to say at p.2 that he carried on with the construction of his church.

[95] The fourth cause of action also refers to Article 6 of the Constitution. Article 6 provides that no person shall be deprived of his personal liberty except in accordance with law. It then refers to the rights of a person who is arrested or otherwise detained. This is plainly irrelevant to these proceedings.

[96] Ale Nofoaiga is not being deprived of his liberty by being arrested or otherwise detained. Nothing of the sort has happened here. So Article 6 does not apply.

[97] The fourth cause of action is also not reasonable and is not maintainable in law.

[98] As for the fifth cause of action, it is asserted that the President did not consider all evidence given by the applicant in the hearing of the application for leave to appeal. There is nothing to demonstrate that that bare assertion is correct. In any event, what is asserted here does not provide the basis for a cause of action in a civil claim.

[99] There is also no copy before this Court of the transcript of the leave proceedings to show what evidence was before the President apart from the application for leave to appeal, Ale Vena’s response and Ale Nofoaiga’s response to the response by Ale Vena. In any event leave to appeal was granted by the President to the applicant.

[100] It follows that the fifth cause of action is also not a reasonable one.

[101] All in all then, the statement of claim discloses no reasonable cause of action which is maintainable in law. It is therefore struck out.

(c) Citation of the President of the Land and Titles Court as a party

[102] Ms Betham – Annandale raised as a preliminary issue that it is inappropriate for the applicant to cite the President of the Land and Titles Court by name as one of the two respondents. The President should have been cited as President which is his official position.

[103] In my opinion the submission by counsel for the respondents should be accepted. The decision that is sought to be reviewed was a decision made by the President in his official capacity as President of the Land and Titles Court and not in any personal capacity. The present proceedings are also not brought against the President as an individual but in his official capacity.

[104] All references in the documentation by the applicant in these proceedings to the President by name are to be deleted and replaced with the words "President" or "President of the Land and Titles Court" as the case may be.

(d) Stay of execution of Land and Titles Court judgments

[105] By notice of motion dated 11 April 2008, the applicant sought leave from this Court to stay execution of the judgments of the Land and Titles Court dated 25 June 2005 and 23 February 2007. By notice of motion dated 28 April 2008, counsel for the respondents sought to strike out the applicant’s motion for stay of execution of judgments.

[106] As I have decided to strike out the applicant’s motion for review and statement of claim, I do not propose to grant any stay of execution of the judgments sought by the applicant. It is therefore not necessary to deal with the respondents strike out motion.

(e) Section 21 Limitation Act 1975

[107] Counsel for the respondents also raised as one of the two preliminary issues s.21 (1) (a) of the Limitation Act 1975 which provides that no action shall be brought against any person for any act done in pursuance of any public duty unless notice has been served by the prospective plaintiff to the prospective defendant giving, inter alia, reasonable information of the circumstances upon which the proposed action will be based.

[108] Counsel for the respondents submitted that the applicant as plaintiff has not given to the respondents as defendants any notice of his proposed action set out in his statement of claim as required under s.21 (1)(a). Without intending any discourtesy to counsel for the respondents, I do not propose to deal with this preliminary issue as I have decided to strike out the statement of claim on other grounds.

Conclusions

[109] The applicant’s motion for judicial review is struck out.

[110] The applicant’s statement of claim is also struck out.

[111] The applicant’s motion for stay of execution of the Land and Titles Court judgments of 24 June 2005 and 23 February 2007 is denied.

[112] The citation of the President of the Land and Titles Court by name in the documentation filed in these proceedings is to be replaced with the words "President" or "President of the Land and Titles Court" as the case may be.

[113] Costs are awarded to the respondents to be fixed by the registrar together with any reasonable disbursements.

[114] Before leaving this judgment, I need to say that I do not intend anything said in this judgment to be taken to mean that this Court has jurisdiction to review decisions of the Land and Titles Court generally. The issue did not arise and was not argued in these proceedings. The only generally accepted review jurisdiction of this Court, so far, over decisions of the Land and Titles Court is where a decision of that Court is alleged to be contrary to or in breach of the fundamental rights provisions of Part II of the Constitution: see Aloimaina Ulisese v Land and Titles Court (1998) (unreported judgment of Young J).

CHIEF JUSTICE

Solicitors
Sogi Law for applicant
Attorney General’s office for respondents