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Fuimaono Fereti Tupua v Attorney General [2013] WSSC 100 (31 July 2013)

SUPREME COURT OF SAMOA

Fuimaono Fereti Tupua v The Attorney General [2013] WSSC 100

Case name: Fuimaono Fereti Tupua v The Attorney General

Citation: [2013] WSSC 100

Decision date: 31 July 2013
Parties:
FUIMAONO FERETI TUPUA, for himself and for the successors of Tupuola Faitala Tupua (deceased) of Alafua, Translator (Plaintiff) AND THE ATTORNEY GENERAL, in right of the Ministry of Natural Resources and Environment, a statutory body (Defendant)

Hearing date(s):

File number(s): CP 199/08

Jurisdiction: Civil

Place of delivery: Mulinuu

Judge(s): Justice Nelson

On appeal from:

Order:
Representation:

T K Enari for plaintiff

M Lui and A Iati for defendant

Catchwords:

Words and phrases:
Legislation cited:
Taking of Land Act 1964
Land Ordinance 1959

Cases cited:

Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

CP 199/08

BETWEEN:

FUIMAONO FERETI TUPUA, for himself and for the successors of Tupuola Faitala Tupua (deceased) of Alafua, Translator.
Plaintiff

AND:

THE ATTORNEY GENERAL, in right of the Ministry of Natural Resources and Environment, a statutory body.
Defendant

Counsel: T K Enari for plaintiff

M Lui and A Iati for defendant

Judgment: 31 July 2013

DECISION OF NELSON J

1. Two judgments have already been issued in respect of these proceedings, the first on 28 January 2009 and the second on 12 March 2009. Those contain the relevant background.
2. Since then the plaintiff has filed an amended statement of claim dated 01 March 2013 alleging the defendant is trespassing on the land in question and seeking various damages arising out of said trespass and the unauthorised construction of a road. He also seeks all monies “received by the defendant from the providers for use of the plaintiffs land.” Presumably this refers to lease payments from the two telecommunications companies.
3. At the core of this dispute is the validity of the Government Proclamation dated 09 January 1988 taking the customary land under the pule of the title “Tupuola” which was then held by the plaintiffs father. The plaintiff originally argued that the delay in registration of the Proclamation invalidated it. The court in its ruling of 12 March 2009 dismissed that argument.
4. The plaintiff now argues the Proclamation is invalid because:
   • (i) no compensation for the taking was paid; and
   • (ii) the land was never used for the purpose for which it was taken viz. as a quarry site.

He seeks declarations from the court accordingly.

5. It is clear from the uncontested affidavit of Filisita Heather Assistant Chief Executive Officer of the Ministry of Natural Resources and Environment Land Management Division that no record of payment of compensation can be located. However the defendant is willing to pay compensation based on current market values to the plaintiff. I am advised by counsels the relevant amount has been assessed by duly qualified valuers in without prejudice consultations with the plaintiff.
6. Ms Heathers affidavit also shows some $10,000 was paid over the years to the plaintiff for rent received from Samoa Tel for the land. On the basis that the land was being leased to Samoa Tel through the defendant as per normal procedure for leases of customary land. No formal lease document was however executed. Payments to the plaintiff stopped in 2008 when the defendant realised the land had been taken 20 years earlier by Proclamation.
7. These payments have not been refunded by the plaintiff or deducted from compensation due to him. It would appear Digicel have paid no rent and may not even have erected a tower on the land prior to it being closed off by the plaintiff.

Plaintiffs first argument

8. Plaintiffs first argument is that the requirement under article 14 (1) of the Constitution to pay adequate compensation “within a reasonable time” has been infringed as compensation has never been paid. Some twenty-five years have elapsed since the taking. This is well beyond the ambit of “reasonable time”. Therefore the Proclamation should be invalidated.
9. With all due respect counsel has misread the constitutional provision. Article 14 (1) provides:
   

“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 therefore;
(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;
(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.”

10. There are two points of note: First, the Governments right to take land compulsorily derives not from the Constitution but from the Taking of Land Act 1964 the existence of which is foreshadowed and contemplated by the Constitution. The operative words of article 14 (1) are “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.....” (my emphasis) which alone or in conjunction with any other law provides for inter alia the payment of adequate compensation within a reasonable time. The power to take is left by the Constitution to be provided for by a law which itself or when read with any other law requires the payment of compensation within a reasonable time and makes provision for those matters stated in 14 (1) (b) and (c). What the Constitution guarantees is that no person can be compulsorily deprived of his property other than in accordance with such a law. The applicable “law” being the Taking of Land Act 1964 which in Part II empowers the taking of customary and freehold land and in Part III provides for the payment of compensation and rights of access, etc to the courts for determining a persons interest or the amount of compensation due.
11. Second, the Constitution and the Taking of Land Act does not make the payment of compensation within a reasonable time a pre-condition of the taking. The right to compensation only accrues after a taking. It is not a case of pay now take later. It is a case of take now pay later, but pay within a reasonable time. Article 14 (1) merely requires that the relevant law make provision inter alia for payment of adequate compensation within a reasonable time. The Taking of Land Act does this by virtue of its extensive and detailed compensation provisions.
12. I accept defence counsels submission that there are two processes at work under the Act. One relates to the taking by Proclamation and the second to payment of compensation for same. These are inextricably bound but the former is not contingent on the latter. In particular there is nothing in the legislation or elsewhere to suggest that the failure to make timely payment affects the validity of the Proclamation. But there is no question and the defendant accepts this that adequate compensation i.e. compensation based on current market value is due and payable to the plaintiff. The only live issue is quantum.
13. There has been a breach of the plaintiffs right to compensation within a reasonable time. But the remedy for the breach is not annulment of the Proclamation but payment of compensation forthwith based on the current market value of the taken land.

Plaintiffs second argument

14. According to the Proclamation the land was taken as a quarry site. The plaintiff here argues that because it is now being/proposed to be formally leased to Samoa Tel and Digicel as sites for their telecommunication towers, the purpose for which the land is being used has changed so that the Proclamation should be declared invalid.
15. The problem with that argument is two fold: firstly, there is nothing in either the Constitution or the Taking of Land Act supportive of such an interpretation. Nowhere within this legislative framework is it stated or implied that the validity of a Proclamation hinges upon or is somehow related to the use of the land. And counsel cites no authority for such a proposition. Secondly, standing squarely in the plaintiffs way are sections 20 to 23 of the Taking of Land Act 1964. They make it clear the public purpose for which such land is held may at any time be changed by the defendant. By utilizing section 20 (alteration by Head of State acting on the advice of Cabinet who would naturally be acting on the advice of the Defendant) or section 21 (revocation and replacement by a new Proclamation stating the current purpose) or section 22 (by declaring it to be public land and therefore disposable under the Land Ordinance 1959 and successor legislation) or section 23 and 23A (empowers the Minister to lease land not required for its original purpose). The scheme of the legislation is obviously not to handicap the uses to which such land may be put if not immediately required for the purpose for which it was taken. Substantial power and discretion is reserved to the Minister in this regard. The plaintiffs argument flies in the face of this statutory regime. It has no foundation.

Decision

16. The plaintiffs arguments have no merit. The application for declaratory orders is refused.

Costs

17. The defendant is entitled to costs. Defendant to file within 7 days their statement of costs.
18. Given that the plaintiffs arguments are devoid of substance and have in my view unnecessarily contributed to the further delay of this matter counsels are to also file within 7 days submissions as to why indemnity costs should not be awarded.
    

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JUSTICE NELSON