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Malifa v President Land and Titles Court [2014] WSSC 170 (17 April 2014)

IN THE SUPREME COURT OF SAMOA
Savea Sano Malifa v LTC & Ors [2014] WSSC 170

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

MISC 1202/12

IN THE MATTER: of an Application for Judicial Review seeking enforcement of Fundamental Rights under Article 4 of the Constitution.

BETWEEN:

SAVEA SANO MALIFA of Afega, Chief Editor.
Applicant

AND:

THE PRESIDENT OF THE LAND AND TITLES COURT established under the Constitution and The Land and Titles Act 1981.
First Respondent

AND:

MAULOLO WAIRAKI TOEVAI
Second Respondent

AND:

FATA PEMILA, UTUTA’ALOGA CHARLIE ULIA
Third Respondents

AND:

SAENA TIALINO PENAIA II; FATA MEAFOU
Fourth Respondents

Counsel:
L T Malifa and A T Faleauto for Applicant
S Ainuu and S Faamausili for First Respondent
M V Peteru for Second Respondent and First Named Third Respondent
T S Toailoa for Second Named Third Respondent
Fourth Respondents in Person

Decision: 17 April 2014

DECISION OF NELSON, J
(Motion to Strike Out)

3. The titles ‘Savea’ and ‘Ututa’aloga’ are two ancient and paramount titles of the village of Afega. They have been the subject of recent litigation in the Land and Titles Court at first instance and on appeal. These proceedings arise out of that litigation.

Savea title

4. On 4 July 1997 the Land and Titles Court at first instance in LC 724 P3–P 11 relevantly held that the true heirs of the title Savea included the applicant and the petitioners to that proceeding Maulolo Faaui and Leiato Toleafoa Vilimaa. Further that pule over the title was vested in the said petitioners, the applicant, the first named third respondent Fata Pemila and the second named fourth respondent Fata Meafou as well as others not party to the present proceeding.
5. Being dissatisfied with the decision the applicant and others appealed to the Land and Titles Court of Appeal (“Fa’amasinoga o Talosaga”). A Bench duly constituted deliberated on the matter and on 28 August 2009 delivered a written ruling dismissing the appeal and confirming the decision of the trial court.
6. The applicant seeks this court judicially review the decision of the Land and Titles Court of Appeal. He says in his Motion/Application that the first respondent breached his fair trial rights under article 9 of the Constitution in confirming the original decision and holding that the applicant and the first and second respondents (he must be referring to the second and third respondents and possibly the fourth respondents as well) “are the pule of the title Savea yet (they) are not heirs - true or otherwise - of the title Savea.” He seeks that the decision of the Land and Titles Court of Appeal be quashed and/or set aside.

Ututa’aloga title

7. On 16 August 1999 the Land and Titles Court at first instance in LC 8809 P2 – P10 relevantly held that pule over the title Ututa’aloga in the village of Afega was vested jointly in the heirs of Ututa’aloga Leo’o being the side of the third respondents and the heirs of Ututa’aloga Fa’avaoga being the applicant and the fourth respondents. But that the consent of one branch to a bestowal of the Ututa’aloga title in the other was not required (“e le feaiaa’i”). Further the court dismissed the argument by the applicant that the title Savea held sole pule over the title Ututa’aloga.
8. The matter was appealed and by written decision dated 23 March 2012 the Land and Titles Court of Appeal confirmed the decision of the trial court and dismissed the appeal.
9. The applicant now seeks a judicial review of that decision alleging breach of his article 9 rights. It is instructive to reproduce in full this part of the applicants Motion:
   • “In respect of LC 8809 P2–P10 dated 23^rd March 2012, the 1^st Respondent breached Article 9 of the Constitution in its holding that “(2) Ua fa’atumauina le Fa’ai’uga a le Fa’amasinoga o Ulua’i Su’esu’ega o le aso 26 Aukuso 1999, [LC 8809 P2–P10]”, yet in that LC 8809 P2–P10 dated 26 August 1999, it wrongly held, amongst other things, that:
   • (i) There are suli of Ututa’aloga Leo’o of whom the 3^rd Defendants are heirs unto; yet there is no Ututa’aloga Leo’o as the only and original Ututa’aloga died without heirs;
   • (ii) The Applicant, Savea Sano Malifa is of the 4^th Respondent as held in LC 8809 P2–P10 of 26 August 1999, in that “...o suli o Ututa’aloga Fa’avaoga Timuutimu e aofia ai ...Savea Sano Malifa...”; and therefore, he is of Ututa’aloga Leo’o. This is wrong as the Applicant is not of that line or of that person’s gafa;
   • (iii) Savea’s Sa’otama’ita’i, Tu’ua-ma-Leulua’iali’i, is that also of title Ututa’aloga; yet Ututa’aloga never had a sa’o tama’ita’i, and never ever had any right, identity, or interest in or of Tu’ua-ma-Leulua’iali’i as Ututa’aloga was not of that Sa’otama’ita’i as in LC 1294 (1953); and in LC 724 P3–P11, August 28, 2009 and in LC 724 P3–P11 July 4, 1997, confirming the Applicant is true heir and suli fa’avae of whom Ututa’aloga was Savea’s brother, who died without heirs; and
   • (iv) Despite the Applicants gafa and geneology as confirmed in LC 1294 (1953); LC 8808 (2007) and (2012); and LC 5767 P1–P10 (2010); the 1^st Respondent did not consider and relevantly take account of that undisputed material evidence.”
10. At the heart of the application is the applicants contention that both decisions violated “his rights and liberties as true heir and suli faavae” of the two titles.

The courts strike out jurisdiction:

11. In response the first, second and third respondents have filed Motions to strike out the application. All three respondents were represented by counsel. The fourth respondents appeared by the respondent Saena Tialino and he advised the fourth respondents did not oppose the application for judicial review. This is difficult to follow as the fourth respondents were successful in the Land and Titles Court although only Fata Meafou was party to the Savea title litigation. Fata Meafou did not appear at any callings of this matter.
12. Respondents first, second and third argue the application should be struck out pursuant to rule 70 of the Supreme Court Civil Procedure Rules 1980 which provides:

“No cause of action – Where in any proceedings no cause of action is disclosed the Judge may, on the application of the defendant order the proceedings to be struck out.”

Alternatively it should be struck out pursuant to the inherent jurisdiction of the court as the application is frivolous, vexatious and an abuse of the court process. Because there is some dispute amongst counsel as to the jurisdiction of the court to strike out applications for judicial review I will deal with this issue first.

13. The applicant argues rule 70 has no application as it refers to “proceedings” and a “cause of action.” An application/motion for judicial review seeking Constitutional redress is not a “proceeding” neither does it give rise to a “cause of action.”
14. In this regard it is noted the Supreme Court Rules provide for two types of civil proceeding: those instituted by way of action and those commenced by way of motion - see rule 10. The types of proceeding required to be instituted by way of action are defined by rule 11 and rule 12 provides:
    • “Except where otherwise provided by any Act or any Rules made thereunder or by any order of the court, all other civil proceedings shall be commenced by way of motion.”

In this context “civil proceedings” must mean proceedings which are not criminal in nature and would in my respectful view extend to an application for judicial review.

15. Motions are dealt with by Part XVIII of the Rules. Rule 188 thereof provides “Every civil proceeding not required to be commenced by way of action may be commenced by way of motion supported by affidavit.” Rule 189(1) requires the motion “set forth briefly the nature and grounds of the relief sought by the applicant.” There is no requirement that it plead a cause of action and it is difficult to see how an application for Constitutional relief for breach of fair trial rights would give rise to a “cause of action.” It should also not be overlooked that the application is brought pursuant to article 4(1) of the Constitution which allows any person to “apply to the Supreme Court by appropriate proceedings” to enforce his Fundamental Rights under Part II of the Constitution.
16. Notwithstanding therefore that this is a “proceeding,” no cause of action necessarily arises or need be pleaded. There is accordingly some merit in the applicants argument that rule 70 does not apply. The implications and nuances of the matter were discussed in Pouniu v Land and Titles Investigation Commission [2003] WSSC 5 where Chief Justice Sapolu concluded:
    • “A motion for judicial review does not have to disclose a cause of action but it must show valid grounds for review....... The court would therefore not entertain an application to strike out a motion for judicial review on the ground that it discloses no cause of action.”
17. A strike out motion may however be brought under rule 206 which governs cases for which “no form of procedure has been provided.” That rule allows the court to “dispose of the case in such manner as the court deems best calculated to promote the ends of justice.”
    • “206. Procedure in matters not provided for – If any case arises for which no form of procedure has been provided by the Judicature Ordinance 1961 or these rules, the Court shall dispose of the case in such manner as the Court deems best calculated to promote the ends of justice.”

So that if it is proper and just that an application for judicial review be struck out then rule 206 could in my respectful view provide the court with the required jurisdictional authority. Applicants counsel conceded as much in the course of presenting his original oral arguments.

18. The application therefore cannot be struck out pursuant to rule 70 but can be pursuant to rule 206. Alternatively the application can be struck out pursuant to the inherent jurisdiction of the court to strike out applications that are frivolous vexatious and an abuse of the court process. This is the second basis upon which the first, second and third respondents say the application should be struck out.
19. That the court has this jurisdiction does not appear to be in dispute. Applicants counsel accepted in the course of argument that the court has an inherent jurisdiction to strike out baseless applications. He does not appear to argue the point as vigorously as rule 70 which I have dealt with above.
20. The matter has been placed beyond doubt by several decisions of this court striking out judicial review applications on this very basis. As explained in Pouniu:
    • “The court has jurisdiction to strike out a motion for judicial review on any of the grounds upon which it is founded, where it has been shown to constitute an abuse or misuse of the courts process. In private law the court has always had inherent jurisdiction to stike out a statement of claim for not disclosing a cause of action or for abuse of process. In my judgment, the court must have the same jurisdiction in public law to strike out a motion for judicial review which is an abuse or misuse of process. The nature of the proceedings whether public law or private law should not be the determining factor whether such a jurisdiction exists. What is at stake is the process of the court which must be safeguarded against abuse or misuse regardless of whether the abuse or misuse occurs in public law or private law. The question then is whether the motion for judicial review in this case is an abuse of process or more appropriately a misuse of process. As with an application to strike out a claim in private law, the jurisdiction to strike out a motion for judicial review in public law for abuse or misuse of process must be sparingly exercised and should only be exercised in a very plain and obvious case after all the relevant material is placed before the court.”

Applicants arguments:

21. Senior counsel for the applicant filed a 60 page brief of submissions which frankly I found very difficult to follow. The words “convoluted” and “torturous” come to mind. But they seem to reiterate the applicants basic complaint that the Land and Titles appellate bench did not in dismissing his appeals accord him a fair trial, a right guaranteed to every citizen of Samoa by article 9(1) of the Constitution. Article 9(1) in its entirety reads:
    • “9. 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 interest of morals, public order or national security, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”
22. As to how his fair trial rights have been infringed he says this was a result of the court finding that in relation to the title Savea, he together with other named respondents share the pule, yet they are not heirs true or otherwise to the title. In relation to the Ututa’aloga title the court breached his fair trial rights in a number of ways: finding in favour of the heirs of the joint pule holder Ututa’aloga Leo’o when in fact Ututa’aloga Leo’o died without issue, finding that the applicant is an heir of Ututa’aloga Leo’o when he is not, in finding that the sa’o-tama’ita’i of the Savea title is also the sa’o-tama’ita’i of the Ututa’aloga title when it was not and in reaching certain incorrect conclusions about the applicants lineage and geneaology.
23. Herein lies the first obstacle to the applicants arguments. It seems from these grounds that what the applicant is really questioning is not the fairness of the conduct of the trial before the Land and Titles Court of Appeal but the fairness of its conclusions. Which he disputes and maintains are wrong. But this is not a forum where decisions of the Land and Titles Court of Appeal can be re-examined. There is no right of appeal from that court to this. The law is clear and has been pronounced upon repeatedly by this court and the Court of Appeal.
24. Sections 34, 70, 71 and 90 of the Land and Titles Act 1981 provides:
    • “34. Jurisdiction of the Court – (1) The court shall continue to have all the jurisdiction it exercised prior to this Act coming into force.
    • (2) In particular the Court shall have exclusive jurisdiction:
    • (a) in all matters relating to Samoan names and titles;
    • (b) to make orders or declarations in respect of Samoan names and titles as may be necessary to preserve or define the same, or the rights or obligations attaching to those names and titles in accordance with the customs and usages of the Samoan race and all laws in force in Samoa with reference to customs and usages;
    • (c) in all claims and disputes between Samoans relating to customary land, and the right of succession to property held in accordance with the customs and usages of the Samoan race.
    • (3) The court also has the jurisdiction conferred by this Act.
    • 70. Effect of final decision – Subject to an appeal under Part IX, every final decision of the Court on a petition is deemed to be judgment in rem and shall bind all Samoans who are affected by it, whether parties to the proceedings or not.
    • 90. Decision on appeal to be final – The decision of the Court under this Part is final (emphasis is mine).
    • 71. Decisions and orders not reviewable by other Courts – Subject to this Act, no decision or order of the Court shall be reviewed or questioned in any other Court by way of appeal, prerogative writ or otherwise howsoever.”
25. The only recognised exception to these provisions is where an applicants fundamental rights under the Constitution have been infringed by the Land and Titles Court. Only then will the Supreme Court intervene. This is established by a long line of cases beginning with the landmark judgment of Young, J in Aloimaina Ulisese v Land Titles Court on 04 November 1998 and was reinforced recently by the Court of Appeal in Penaia II v Land and Titles Court [2012] WSCA 6 where it said:
    • “Both the language and provenance of ss34(2), 70 and 71 point to stringent exclusion of judicial review save to the extent permitted by the Constitution. So too does the importance of the role of the Land and Titles Court that is recognised in the significance accorded by the Constitution to the subject-matter of its exclusive jurisdiction, namely matai title and customary land, each held in accordance with Samoan custom and usage and with the law relating to custom and Articles 100 and 101(2). Moreover “law” is defined as custom and usage which has acquired the force of law in Samoa (Article 111).
    • Even without ss34(2) 70 and 71 there would be powerful reasons for the courts of general jurisdiction to be reluctant to intervene in disputes arising from decisions of the Land and Titles Court. The first principle of justice is that a court be competent to decide the case. The raison d’être of the Land and Titles Court is to provide that competence, bringing to disputes concerning Samoan custom and usage the expertise of Judges versed in such matters so they can evaluate what answer is most in keeping with the justice of the case according to Samoan values. Such expertise can be gained only from a life-time’s exposure to Samoan culture.......
    • When one adds to the analysis ss34(2), 70 and 71 the case for judicial reticence becomes overwhelming. We are confirmed in that conclusion by decisions of the Chief Justice to that effect.”

And further in the decision:

“Breach of Article 9(1) – The alternative contention was that there has been breach of the right to fair trial guaranteed by Article 9(1):
In the determination of his civil rights and obligations...every person is entitled to a fair and public hearing, within a reasonable time by an independent and impartial tribunal established under the law.
Mulitalo Penaia did not suggest that the challenged hearings had been other than fair and public, within a reasonable time, or that the statutory tribunal had been other than independent and impartial. The complaint was that the decisions (had departed from earlier decisions and infringed inter alia) ss34, 70 and 71 of the 1981 Act.
But for us to investigate that question would take the courts of general jurisdiction into the very examination of the Land and Titles Court which Parliament has prohibited. The only forum in which such questions may be debated is the Land and Titles Court itself, whether at first instance or on appeal.......... The consequence of such ouster provisions as ss34, 70 and 71 is that the Land and Titles Court may reach decisions with which the courts of general jurisdiction may disagree. But that is the price to be paid for the benefits of the regime.”

Savea title:

26. The applicants position in relation to the title Savea was better clarified by Mr Malifa in oral argument. He said the breaches complained about consisted of the Land and Titles Court applying wrong custom to the point of inventing new customary practices. This was done in its decision to place the three kinds of heirs – suli fa’avae also known as suli moni, suli tautua and suli pa’i suafa – on an equal footing in the Savea family without the applicant being given the opportunity to comment thereon. As a consequence the applicant being a suli moni now shares the pule with respondents who are not true heirs.
27. The second major bone of contention concerned the Court’s decision in respect of the relevant sa’o-tama’ita’i in holding that the Savea and Ututa’aloga titles had the same sa’o-tamaita’i – again a decision not based on any evidence and in respect of which the applicant was not given an opportunity to be heard.
28. The difficulty with the applicants first argument is the trial transcript of the Court of Appeal proceedings does not support the argument. Thus for example in the questioning of the applicant by the first of the Court of Appeal judges Judge Va’aelua. Recorded on page 3 are the applicants answers on the issue of the status of the various kinds of heirs:
    • “Fesili: O le faasea ma autu o le talosaga toe Iloilo, ua e manatu ua feauga ma le aganuu a Samoa, faamanino mai lou taofi lea?
    • Tali: O se manatu o le matou itu, e tasi le pule moni o se aiga Samoa, e tasi le pule moni e iai suafa, fanua ma mea uma, o le pule lea e i le pule faavae, e le mafai ona toe suia le pule lea, o le pule lenei e faavavau, ae e le faapea o le a tuu ese ai pule tautua o e tautua, a alu alu le pule ua tuuina atu poo se suafa i e ua tautua, a maea pe maliu le na tuuina iai, ona toe aumai lea o le suafa, e le tumau. O le manatu lena o le matou aiga, faapea e faavae i le faasamoa, e le mafai ona tuulafoaina ni mea faapenei, ona o le suafa lenei o Savea, a silasila i gafa o le aiga lenei, e tasi le Savea i Afega e le lua, ua ala ona lua ona o faaaloaloga nei ua tuuina atu i e sa tautua, lea ua taape ai le suafa, lea ua tulai mai i le Faamasinoga lenei lea ua tilotilo atu ua faaaoga tutusa aia tatau nei e lua ae e le tutusa, e ese le pule faasuli ese le na tuu iai le suafa ona o le tautua.
    • Fesili: O lea e te taua le pule faasuli, o le pule a ai e filifili ai le suafa Savea i le tou afioaga?
    • Tali: Taimi nei o le pule faasuli.
    • Fesili: O a ituaiga suli?
    • Tali: Suli toto tino ma aano, suli o le aiga pei ona sau ai e oo mai i le taimi nei.
    • Fesili: E iai ni suli tama fai e tatau ona aia i le filifiliga?
    • Tali: E iai, o le matou aiga nei pei ona silafia, o lea matou te aiga fa’atasi ma Fata Meafou, o loo iai lava i totonu ole aiga nei, e le faapea o aveesea ai lona piitaga ona o le suli tama fai, talu ai o lenei mataupu ua talosaga Fata Meafou o ia e alu e fai le itu lea o le matou aiga.
    • Fesili: Taoto le itu lea ia Fata Meafou, o lea ta te iai i le aganuu, e le o tusa ai le tapenaga o le iuga ma le aganuu, o lea ua e saunoa o le pule e filifili ai le suafa Savea o suli moni ao lea ua e faapipii iai suli tama fai, afai o le suli moni o le pule e filifili ai, e a tama fai, e tuu iai tama fai?
    • Tali: O tama fai a faapea ua iai i totonu o le saofaiga a le aiga, tama fai e leai se eseesega ma suli aua ua lavea, ua ave iai le fa’aaloalo, a finagalo tama fai e tulai ma alu ese e le taofia, ae e tatau ona iai, ao taimi faapenei pei ona iai le suafa lenei pei ua leai se filifiliga, ua taape, o lea ua iai le manatu e tatau ona toe fai se faatatau iai, ona o lea ua tuu fa’atasi tama fai ma suli tautua lea ua vevesi ai le mea.”
29. The applicant also discussed this with the second judge on the panel Judge Afamasaga – at pages 10 and 11 of the transcript:
    • “Fesili: O ai e tatau ona iai i suli faavae o le aiga?
    • Tali: Suli faavae o se aiga o suli moni ia o le aiga.
    • Fesili: O iai nei suli faavae o le aiga?
    • Tali: O loo iai.
    • Fesili: Ua mavae latou ia na amataina, o latou o loo iai o suli moni?
    • Tali: Suli faavae ia.
    • Fesili: O lau talosaga e le tatau ona iai le itu tagi i mea e tau o suli faavae o le suafa?
    • Tali: O lea lava
    • Fesili: O lea na e malo i le faaiuga lena ao lea ua e toe talosaga?
    • Tali: Moni, ae le sa’o.
    • Fesili: O le a le faauigaina o le faaiuga na avatu ia Maiava ma le faaiuga lea ua avatu?
    • Tali: O suli tautua Maiava, e tatau ona ave se faaaloaloga i se na tautua.
    • Fesili: E le mafai ona tau suli moni o suli tautua?
    • Tali: E tau o suli tautua.
    • Fesili: O lou finagalo e tatau ona iai le va, afai se faaaloalo pei e matuia lea upu o le tautua?
    • Tali: O lea matou te talanoa atu e le mafai ona tuulafoaia e le aiga Samoa, a silasila i le mataupu lenei, o loo manino le mea na o mai ai latou, e le faapea ni tagata na soifua i le matou nuu.
    • Fesili: E te talitonu e lua filifiliga o le suafa o outou?
    • Tali: E leai, e tasi le filifiliga o le suafa, filifiliga a suli moni, a faapea o le tautua e ave iai le suafa pe a talafeagai ae fai le filifiliga a suli moni.
    • Fesili: E foliga mai e lua ituaiga, o le a le tou finagalo?
    • Tali: A faapea o loo e saunoa mai itu ia a suli moni ma suli tautua, e lua, ae e le feaiaai, e le tatau ona feaiaai.

And in a discourse with President Tagaloa:

• “Fesili: E iai se taimi e alu ai talia e le aganuu le iai o latou ua pai i totonu o le pule lea?
• Tali: E le mai loa iai.
• Fesili: O lona uiga na o suli faavae poo suli moni o le aiga e pule, ae pe fia auganofo a itu nei ua pai suafa ona o le tautua, suafa na o le vaega taua e iai se taimi e talia ai, i lou silafia i le aganuu e tatau ona tuu fa’atasi o le aiga potopoto?
• Tali: Atonu o le mea tonu lena, o le matou tulai atu ona o le le talia o le matou itu o le tuufaatasi o suli ma suli tautua, e le mafai ona le avea le fa’aaloalo i e na tautua, o le mea e tatau ona fai e e na tautua se suafa, ae e lei autasi ma suli moni, o lea oute iai i le pule faavae a le matou aiga e lei aveesea.
• Fesili: Faalavelave o le iuga a le Faamasinoga lea tou te teena ua ave ai ma e ua pai suafa, lea ua taua o suli tautua lea e ta’u lautele o suli o Maiava, o lea oute malamalama i le tatou aganuu pe fia latou e ia e au, faanoi i suli faavae seiloga e malie suli faavae pe iai se vaitau e fetuunai ma tutusa ai loa?
• Tali: I le faasamoa e leai se taimi e faapena, e tatau ona tumau le mea na iai, ae fai fealoaloaiga.”

30. It is therefore incorrect to say the applicant was not given an opportunity to be heard on the issue of the positioning in the family of the various kinds of “suli”. He was given ample opportunity but as is apparent from paragraph 17 of the decision the court reached a different conclusion. This the court was quite entitled to do. Courts do this all the time.
    • “17. O le tulaga i le finauina e le Itu Talosaga 1 (Savea Sano Malifa) o le pule a suli fa’avae o le Suafa Savea ona o le aganu’u ma le agaifanua lea a Samoa, e manatu le Fa’amasinoga o Talosaga o suiga ua i ai i le tulaga faasuli o le Suafa Savea ua tatau ai ona aofia ma suli o ē ua pa’i suafa e pei o suli o Savea Tuioleala ma suli o Savea Taavaoga fa’atasi ai ma suli tautua, po’o suli o se ua aofia ona o se fa’aiuga muamua a le Fa’amasinoga, e pei o suli o Lagi, i le pule filifilia ai se nofo po’o ni nofo i le Suafa Savea i Afega.”
31. The reasoning for this part of the courts decision is found earlier in the decision at paragraphs 10 to 13.5:
    • “O le aganu’u ma le agaifanua e tusa ma le pulea o suafa matai e manino lava i le tulaga o suli e filifilia le Matai Sa’o o le Aiga. A’o le Sa’o e pulea isi matai o lona aiga e pei o matai pitovao ma matai tautua. O lona uiga o le pule a suli e filifilia ai lo latou Sa’o.
    • Ua fa’amaonia e le Fa’amasinoga o Talosaga o le Suafa Savea i Afega o le Matai Sa’o ma e pulea e ona suli.
    • O le tulaga masani, o suli fa’avae po’o suli moni o se suafa matai o latou e pulea le Suafa.
    • Ua i ai le tulaga ua i ai i latou e le o ni suli fa’avae po’o suli moni ae na pa’i suafa i latou ona o se tautua a i latou lava po’o o latou tupuaga.
    • Ua i ai fo’i le tulaga o se vaegā tama ua avea ai ma tamafai o lea ua pa’i suafa ai.
    • O lo’o i ai le finauga e faapea e eseese aiā faasuli fa’avae po’o suli moni ma suli o i latou ua pa’i suafa. Ma e tatau ona ave pea le pule i suli fa’avae ma suli moni ae fai mea fa’alogo suli o ē ua pa’i suafa i suli moni.
    • E manatu le Fa’amasinoga o Talosaga o le aganu’u ma le agaifanua e le o se mea e tamau. O le fuata ma lona lou, auā e le tutusa taimi i lea tupulaga ma lea tupulaga, ona e i ai lava suiga.
    • O se fa’ata’ita’iga e masani na’o o le to’atasi lava le matai Sa’o o le Aiga, o le taimi nei ua i ai suafa matai ua fa’asalafa i le maliega o suli po’o le talosaga fo’i e suli o le Fa’amasinoga.
    • O le aganu’u o le fa’aitupaepae ma le fa’afuaifaleina o suafa matai, o se tasi fo’i lea suiga mai i le tumau i le paepae.
    • O lo’o finauina e isi itu o lenei Faamasinoga le pule a suli faavae moni ma te’ena ai itu o lo’o latou faapea mai o suli tautua i le pulea o le Suafa Savea.
    • Ua iai Faaiuga a le Fa’amasinoga o Fanua ma Suafa ua ave ai le pule o le Suafa i le Aiga Potopoto.
    • E talitonu nisi o le Aiga Potopoto e lua ona vaega:
    • o le filifiliga;
    • o le taupulega;
    • O le filifiliga ua na’o suli moni ia, ae o le taupulega ua aofai ai suli tautua, suli tamafai ma le lautele o le aiga.
    • Ua matauina e leni Faamasinoga i isi faaiuga a le Fa’amasinoga o Fanua ma Suafa ua le o toe fa’aaogaina le tulaga o le filifiliga ma taupulega e fa’avasega ai aiā faasuli, ae ua tu’ufaatasi suli moni, suli tautua, suli tamafai po’o suli o ē na pa’i suafa ma avea o le Aiga Potopoto e pulea le Suafa.
    • E manatu le Fa’amasinoga o Talosaga, o le a i le iloiloga lava a le Laulau o le Fa’amasinoga le faaiuga e talafeagai ma le mataupu, aua e le tutusa talaaga o se mataupu ma o le a fua le faaiuga i talosaga ma mau patino e lagolagoina.
    • Ae o lo’o manino lava o le Suafa Matai Sa’o o le Aiga e filifilia lea e suli.”
32. This is not the Land and Titles Court creating new custom. This is the court declaring what the prevailing practices are. It is the court recognizing the fluidity of custom and its ability to adapt to changing times and circumstances. It is the court accepting that in this area there is no uniformity. The traditional approach is that the suli faavae or suli moni exercise sole pule over the paramount titles of a family. All other suli being part of the taupulega whose role is to consult with the suli moni. Most times this is followed. But sometimes other kind of suli are appointed to hold a paramount title for good reason, commonly as a reward for tautua or because the line of succession of the suli moni becomes disrupted by events. Where this happens the customary practice in that family over the course of generations then becomes that some if not all of these kinds of suli are permitted to have a say equal to that of the suli faavae or suli moni vis-a-viz the pule over a title. The court did not express a preference as to which should prevail. It only acknowledged that different practices exist but all are customarily acceptable as tailored to meet the needs of particular situations.
33. The approach of the Land and Titles Court of Appeal seems to be that expressed in paragraph 13.4 of its decision (the paragraph highlighted above) viz that each and every case is to be decided on the basis of its own merits and particular circumstances. An approach not unlike that of the common law evolved out of the depth of its own experience. It is no part of the function of this court to pass judgment on the efficacy or otherwise of such an approach. For as the Court of Appeal reminded us in Penaia II “the Land and Titles Court may reach decisions with which the courts of general jurisdiction may disagree. But that is the price to be paid for the benefits of the regime.”
34. The complaint that the applicant was not given an opportunity to be heard on the issue of his status and the relative ranking of other suli has no substance.
35. As to the applicants other main complaint that the courts decision concerning the sa’o tama’ita’i was reached without the applicant being accorded an opportunity to be heard, I struggle with the relevance of the whole issue of the sa’o-tama’ita’i. The decision of the trial court reaffirmed on appeal concerned the pule over the title Savea. It did not involve an inquiry into the status or otherwise of the sa’o-tama’ita’i of the title Savea. Indeed there is no mention of the sa’o-tama’ita’i in the decision of the trial court, likewise in the decision of the appellate court. Perhaps counsel is here referring to an issue relevant to the Ututa’aloga title. I will address it under that head.

Ututa’aloga title:

36. As noted earlier it appears from the grounds of the application/motion for review that the applicant is essentially questioning the findings and conclusions of the Land and Titles Court of Appeal in relation to the geneaology of Ututa’aloga Leo’o whom he says died without issue and from whom he says he is not descended. He also questions the courts finding that the sa’o-tama’ita’i of the Ututa’aloga title is the same as that of the Savea title but accepts that Savea and Ututa’aloga are in custom and reality “uso-tuofe.” The final ground of his application is that the court did not take into account his geneaology as confirmed in previous decisions of the Land and Titles Court in 1953, 2007, 2010, and 2012.
37. The last ground is easily answered and counsels attention is drawn to paragraphs 5.2 and 6 of the decision which says:
    • “O fete’enaiga o gafa o lo’o finauina e Itu Faamasinoga nei ae maise lava le Itu Talosaga 3 ma Itu Talosaga 5 o nei taualumaga, o latou lava ia talitonuga ae sa silasila le Faamasinoga o Uluai Suesuega (1999) ma faapea foi ona iloilo ma le toto’a e lei Faamasinoga gafa ma fa’amaonia le tau o itu taitasi i le Suafa Ututa’aloga i Afega e ui ua tausagā e le toe fa’atinoina le suafa i Afega.
    • O le taunu’u o le Faamasinoga o Uluai Suesuega (1999) i le pule o le Suafa Ututa’aloga e faamaonia e le Fa’amasinoga o Talosaga i ana fo’i suesuega ma o lo’o manino lava finauga ma tau o itu Fa’amasinoga i le Suafa Ututa’aloga.”
38. The court undertook a similar exercise in relation to the Savea title as noted in paragraph 2 of that decision in the following terms:
    • “Ua mafai e le Fa’amasinoga o Talosaga ona maua lona manatu i taunu’uga ua talanoaina atu i lalo e fa’atatau i mataupu ma finauga o lo’o aumai i talosaga toe iloilo i le tuana’i ai o ana su’esu’ega ma le toto’a o mau tusitusia ma tu’u-fofoga na i luma o le Fa’amasinoga o Ulua’i Su’esu’ega o le aso 4 Iulai 1997 fa’apea le Fa’amasinoga o Talosaga toe Iloilo o le aso 10 Fepuari 2009 ma le Fa’amasinoga lenei fa’atasi ai ma fa’amaumauga talafeagai ma feso’ota’i ma le mataupu autu o nei fefinauaiga o lo’o i faila o le Ofisa o Fa’amasinoga o Fanua ma Suafa.”
39. With respect to the applicant and his counsel, issues of geneaology, who one is descended or not descended from and the sa’o-tamaitai of a matai title are substantive matters that the Land and Titles Court at first instance and on appeal had to deal with and did deal with. They are “matters relating to Samoan names and titles.” The applicant went to the Land and Titles Court in the first place undoubtedly seeking orders and declarations that he considered were “necessary to preserve or define the same or the rights or obligations attaching to those names and titles in accordance with the customs and usages of the Samoan race and all laws in force in Samoa with reference to customs and usages.” These are issues specifically reserved by section 34(2) of the Land and Titles Act 1981 for the Land and Titles Court. It is why that court is there. As indicated earlier this is not a court of appeal from the findings of that court on such matters.
40. This court only has power to intervene if it be shown that the applicants fundamental rights have been compromised. The applicant alleges in his application his right to a fair trial has been breached. But he says it was breached by the “wrong” decision of the Land and Titles Court of Appeal when “it wrongly held” these various things. In order to determine if in fact the conclusions and findings of the Land and Titles Court were “wrong” it would be necessary for this court to embark on an evaluation and assessment of the issues that were before the Land and Titles Court and the evidence adduced in relation thereto. That would involve delving into materials and processes that Parliament has reserved exclusively for the Land and Titles Court. In the words of the Court of Appeal in Penaia II to investigate the matters the applicant is raising in his application for judicial review would be to take this court of general jurisdiction “into the very examination of the Land and Titles Court which Parliament has prohibited. The only forum in which such questions may be debated is the Land and Titles Court itself whether at first instance or on appeal.” This court lacks the jurisdiction to embark on such an exercise even if it were which it is not so minded to do.
41. If the argument is as with the Savea title that the applicant was not given an opportunity to be heard, the transcript of the Court of Appeal hearing does not bear this out. It shows the applicant was examined about the relationship between the Savea and Ututa’aloga titles, questioned about the geneaology he submitted, the parties he supported and rejected, and as to other associated matters by all three Court of Appeal judges. Granted the examination was not extensive but if the applicant wished to present or pursue any particular points or issues the opportunity was clearly available. There is no evidence he was prevented from making arguments or submissions or that his views were in any way suppressed. That distinguishes this case from Tuuamaalii Peni and Others v Afu Tutuila (CA 31 January 2014) cited by counsel for the applicant as in that case neither the respondent nor any member of her family was given an opportunity to attend the critical meeting where decisions to banish them were made. In fact they were not even given notice of the meeting. Quite different to the situation here.
42. There is nothing to support the applicant’s argument that he was not given an opportunity to be heard. He may have failed to take full avail of the opportunity. That cannot be laid at the doorstep of the examining court. His brother is listed as his primary witness and as a senior and experienced counsel of the Samoan Bar he is well versed in the processes of court. His voice is not one easily silenced! There is no merit in the complaint.
43. A further point raised on behalf of the applicant requires consideration. This arises out of the submissions of his co-counsel. I should state at the outset that the accepted practice of the Supreme Court is where more than one counsel appears for a party a choice of advocate to present the case must be made. However because of the importance of the issues raised and as a courtesy to the applicant’s team I gave permission to Mr Faleauto to also address the court. This however is not to be regarded as any sort of precedent.
44. The difficulty with Mr Faleauto’s submissions is they attempt to introduce grounds for seeking judicial review not contained in the application filed by Mr Malifa. It would not be appropriate for the court to consider such matters as the respondents have based their responses on the application filed and served on the parties.
45. However if I were to consider those additional grounds which are traditionally common law grounds for review, I would have had to consider not the authority of the Chief Justice’s decision in the LDS case (unreported 2000) cited by counsel but his latest decision in Amoa v Land and Titles Court [2013] WSSC 89 where he held at paragraph 72:
    • “On the authority of Re Racal Communications Ltd [1980] UKHL 5; [1981] AC 374 per Lord Diplock, R v Lord President of the Privy Council, ex parte Page [1993] AC 683 per Lord Griffiths and Lord Browne-Wilkinson, and Bulk Gas Users Group v Attorney-General [1983] NZLR 29, I have come to the conclusion that the privative clause in s.71 of the Land and Titles Act 1981 does exclude the jurisdiction of the Supreme Court to review a decision of the Land and Titles Court which is an ‘inferior’ Court on common law grounds. However, the privative clause will be ineffective if a common law ground forms part of a breach of a fundamental right provision in Part II of the Constitution: Aloimaina Ulisese v Land and Titles Court (1998); Sefo v Land and Titles Court [2008] WSSC 32; Corporation of the Presiding Bishop of Latter Day Saints v Land and Titles Court (2000) (unreported judgment delivered on 22 November 2000).”
46. I make reference only to one matter which has some bearing on the issues canvassed earlier. This arises out of the following Court of Appeal observation in Penaia II:
    • “It is unnecessary for us to consider whether there might be some exceptional case for which recourse might be sought in the common law. The present case could not be characterized as entailing such breach of fundamental decencies as to raise such an issue.”
47. The Chief Justice has opined that such “an exceptional case” would be where the Land and Titles Court made a decision in respect of land that was not customary land or pronounced judgment upon a title that was not a matai title. It is easy to see why such fundamental jurisdictional errors would be reviewable. Similarly a good case for review exists where “fundamental decencies” such as the opportunity to be heard has been breached by the court. Such cases would probably also be reviewable on a Constitutional basis as being in breach of an applicants fair trial right. It is difficult to envisage a set of circumstances so extreme that it could not be brought within the ambit of article 9(1). But this is not to say there are none. For present purposes I need only state that the matters raised by the applicant do not in my respectful view fall within either of the categories referred to above.

Decision:

48. The strike out discretion is one to be exercised sparingly and only in obvious cases. This is one such case. For the reasons given the application for judicial review brought by the applicant in respect of the Land and Titles Court decision in LC 724 P3 – P11 concerning the title Savea and in LC 8809 P2 – P10 concerning the title Ututa’aloga has no prospect of success. To allow it to proceed would be a misuse of the court process. It must be and is hereby struck out.
49. All respondents except the fourth are entitled to costs as successful parties. If the parties cannot agree on quantum the relevant memorandums are to be filed within 14 days hereof for approval.
    

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JUSTICE NELSON