SUPREME COURT OF SAMOA
Tanielu & Ors v Appellate Division of the Land and Titles Court [2016] WSSC 112

Case name: 	Tanielu & Ors v Appellate Division of the Land and Titles Court	
		
Citation: 	[2016] WSSC 112	
		
Decision date: 	15 July 2016	
		
Parties: 	LEALIIFANO IOPU TANIELU, PAIALII AFE, MOE FAO and LOTUMAALII ANILIUETA, all Samoan matai appearing in a representative capacity for and on behalf of the village of Auala (Applicants) and APPELLATE DIVISION OF THE LAND AND TITLES COURT, Constituted Under Section 77 of the Land And Titles Act 1981 (First Respondent)	
		
Hearing date(s): 	10 June 2016	
		
File number(s): 		
		
Jurisdiction: 	CIVIL	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Mata Keli Tuatagaloa	
		
On appeal from:		
		
Order:	•	The Notice of Motion for Judicial Review is struck out. 
•	The Statement of Claim which was filed on 7 December 2015 to accompany the motion for judicial review is struck out.
•	I leave the issue of costs to the parties to agree upon. The issue can be referred back to court if parties are unable to reach an agreement.	
		
Representation: 	I Sapolu for Applicants
S Ainuu & E Soloi for First Respondent	
		
Catchwords: 	Motion to strike out – stemmed from Land and Titles Court decision – claim of biased LTC bench – Auala – Vaisala – banishment – establishment of Auala Catholic Church – delay in written decision – stare decisis – res judicata	
		
Words and phrases:		
		
Legislation cited:	Land and Titles Act 1981 ss. 71
The Constitution of the Independent State of Samoa 1960 article 9	
		
Cases cited:	Penaia II v Land and Titles Court [2012] WSCA 6 (31 May 2012)
Samoa Party v Attorney General [2009] WSSC 23 at p.11 (para. 52 & 53)
Sia’aga v OF Nelson Properties Ltd [2008] WSCA 14 Alii and Faipule of Siumu District v Attorney General [2010] WSSC 9 (26 Feb 2010)	
	Amoa v Land and Titles Court [2011] WSSC 77 (31 January 2011) at paragraph 14	
Summary of decision:		

SUPREME COURT OF SAMOA

HELD AT MULINUU

IN THE MATTER OF THE JUDICATURE ORDINANCE 1961, THE DECLARATORY JUDGMENT ACT 1988 AND THE LAND AND TITLES ACT 1981

BETWEEN:

LEALIIFANO IOPU TANIELU, PAIALII AFE, MOE FAO and LOTUMAALII ANILIUETA, all Samoan matai appearing in a representative capacity for and on behalf of the village of Auala
Applicants

AND:

APPELLATE DIVISION OF THE LAND AND TITLES COURT, Constituted Under Section 77 of the Land And Titles Act 1981
First Respondent

AND:

ALAELUA SALEIMOA VAAI, OLOAPU ASIASIGA, ALO VAEMOA VAAI, all matai of Vaisala, TAAVAO PENE, a matai of Auala appearing in a representative capacity for and on behalf of the village of Vaisala and Auala
Second Respondents

Counsel:
I Sapolu for Applicants
S Ainuu & E Soloi for First Respondent

Hearing:	10 June 2016

Judgment:	15 July 2016

judgement of justice tuatagaloa
1.	This judgment concerns the Notice of Motion to Strike Out by the First Respondent of the Applicants Notice of Motion for Judicial Review.
History of Proceedings:
2.	The Applicants filed their Motion for Judicial Review with supporting affidavits on 29 November 1996. On 14 September 2015 Applicants filed Amendment to Motion for Judicial Review Affidavits (with affidavit) were filed in support of the motion and amendments. 
3.	The matter (from chronology provided by the Applicants) was first mentioned in court on 9 December 1996.
4.	The First Respondent filed their response in opposition dated 19 December 1996 to the Motion for Judicial Review. On 23 June 1997 the First Respondent filed Statement of Defence.
5.	Since the filing of the Motion for Judicial Review the Applicants through the Counsel at the time followed up with the Land and Titles Court the written decision of the 1995 appellate hearing. 
6.	On 28 April 1998 the matter was adjourned sine die to await the availability of the written decision to the 1995 oral decision of the Land and Titles Appellate Court. This decision (ALC 4289 P1-P6) was not available until 7 August 1998, some 3 years and 2 months after the oral decision.
7.	On 1 March 2000 Counsel for the Applicants wrote to court to have the matter listed back for mention. There were further adjournments.
8.	In May 2002 matter was again adjourned sine die for the Chief Justice and Justice Vaai both disqualified themselves from hearing the matter. Suffice to say that various correspondences between Counsels for the Applicants and First Respondents took place during this time. 
9.	On 31 August 2015 the matter was put back and mentioned in the Supreme Court. 
10.	On 9 November 2015 First Respondent filed notice of motion to strike out. The motion to strike out was further amended on 23 March 2016.
11.	Any outstanding amendments were granted by the court on 10 June 2016.
12.	It is to note that Second Respondents are named and included on the intitule but it is clear from the history of this matter that the Second Respondents were never served nor at any time involved. The Land and Titles Court decisions (1988 and 1998) were in favor of the Second Respondents.
13.	The Notice of Motion for Judicial Review and Statement of Claim are struck out against the Second Respondents on the grounds that they were never served. Most importantly the judicial review is sought against the decision of the Land and Titles Court and not against the Second Respondents.
Background to the Motion for Judicial Review:
14.	The Applicants claim that the Land and Titles Court (LTC) decision of 1988 is inconsistent with LTC decision in 1985. The grounds for judicial review are on the basis that the LTC in 1985 already decided on the issue that the villages of Auala and Vaisala are two independent villages (nuu mavae) and not one. They said this decision was never appealed. As such, the LTC in 1988 should not re-hear this same issue. As a result the Applicants appealed the 1988 decision, was heard by the Land and Titles Court of Appeal (LTCA) in 1995 which court upheld the decision of LTC 1988. LTCA in 1995 delivered a verbal ruling with the full decision in writing to be made available later. The written decision (ALC4289 P1-P6) was only available in 1998.
Notice of Motion for Judicial Review:
15.	The original notice of motion for judicial review and declaratory orders filed on 29 November 1996 seek:
i)	For an order of certiorari to quash and void the Land and Titles Court of Appeal decision ALC 4289 P1-P6; and/or
ii)	For declaratory orders under the Declaratory Judgment Act 1988.
Upon the grounds that:
i)	The decisions of the Land and Titles Court are reviewable by the Supreme Court; 
ii)	The First Respondent’s delay in making available their written decision (1998) three years after the LTCA hearing in 1995 violated their rights under Article 9 of the Constitution;
iii)	There was the issue of procedural fairness in that LTCA 1995 decision ALC 4289 P1-P6 was without due regard and consideration to the history and culture and traditions of the village of Auala as an independent village (nuu mavae);
iv)	The LTCA decision ALC 4289 P1-P6 is ultra vires;
16.	The motion for judicial review was amended on 14 September 2015 with the following grounds which were not of any difference from the original motion for  judicial review:
i)	Lack of authority
ii)	Breach of the rule of natural justice and fairness
iii)	An error of reasoning; and 
iv)	Uncertainty.
The Grounds of the Strike Out and Submissions:
17.	The First Respondent with its Notice of Motion to strike out  on the basis that the application for judicial review is frivolous, vexatious, abuse of court process and has no prospect of success. The First Respondent relies on:
(i)	Section 71 of the Land and Titles Act 1981 ousts the jurisdiction of the Supreme Court to review or question any decision or orders of the Land and Titles Court by way of appeal, prerogative writ or otherwise except where there has been a violation of the Applicants right to a fair trial under Article 9 of the Constitution. 
(ii)	There is no violation of the Applicants right under Article 9.
(iii)	Accordingly the rights under Article 9 are (i) right of access to a Court; (ii) right to a fair trial within a reasonable time and (iii) right to be heard by a fair, impartial and independent Court. The First Respondent submits that the Applicants have not been denied their right to court and to be heard within a reasonable time. The Applicants have had access to the LTC in 1988 and LTCA 1995 when they appealed LTC 1988. They were heard by both these Courts. 
(iv)	If there is any likely breach of the Applicants right under Article 9 is the allegation of bias against judges of Land and Titles Court of first instance in 1988. However, that claim of bias is prejudicial as the judges of that bench have all passed away. 
(v)	The principle of Omnia Praesumunter Rite Esse Act meaning “All things are presumed to be done in due form or all acts are presumed to have been done rightly and regularly”. 
18.	The First Respondent relies on this principle and submits that LTC1988 decision and LTCA 1998 written decision are presumed to be made in accordance with the law and were properly done.
Applicant’s Response to Motion to Strike Out:
19.	The Applicants in opposing the Motion to Strike Out submitted that:
i)	The decisions of the Supreme Court are reviewable by the Supreme Court where there is a breach of Article 9.
ii)	The delay in issuing its written decision on 7 August 1998 of the oral decision delivered on 30 May 1995 after the LTCA hearing in 1995 has violated the Applicants rights under Article 9 of the Constitution;
iii)	The Land and Titles Court of Appeal (LTCA)decision ALC 4289 P1-P6 is ultra vires in that the LTCA in 1995: 
a)	Should not have re-litigated the matter as there had already been a decision by the LT court of first instance on 26 November 1985 (ALC3975P1 & ALC3976) which was never appealed and is therefore stare decisis. The same issues raised in 1985 (court of first instance) was again raised in 1988 before a court of first instance of the LTC with the same parties involved; and
iv)	The decision was without due regard and consideration to the history, place and culture of Auala as an independent village (nuu mavae) of the constituency of Vaisigano, as recognized historically, culturally and traditionally in and within Samoa.
v)	There was bias and conflict of interest on the part of the panel of judges in the court of first instance of 1988. This biasness in the submissions of Ms Sapolu transcends to the panel of judges sitting on the Land and Titles Court of Appeal of 1995. 
The decisions of the Land and Titles Court:
20.	The following are the decisions referred to:
a)	LTC hearing and decision of 1985 (ALC3975, 3975P1 & 3976) was on two issues:
i)	the banishment of Lealiifano Iopu Tanielu and Moe Tema from the village council (faiganuu) of Auala and Vaisala; and
ii)	 the establishment of the Catholic Church in Auala. 
In the course of its decision the LTC 1985 made an observation (paragraph (g)) on the salutations (faalupega) heard in court that the two villages of Auala and Vaisala are two independent villages (nuu mavae) but because the respondents of the matter before the court do not agree, the Court then is of the view to leave this issue for another day (paragraph (i)). 
b)	LTC hearing and decision of 1988 (ALC4289, 4289P1-P6) was on the issue that the LTC 1985 deferred, that is, the villages of Auala and Vaisala according to their salutations (faalupega) are independent villages (nuu mavae). The LTC 1988 held that the villages of Vaisala and Auala are not two independent villages but sub-villages of Safune Taufasala which is one village. The LTC 1988 in its written decision clarified (at paragraph 4 (g)) that what the LTC 1985 said on this issue was not a decision thus the reason why it was heard by the LTC 1988.
“ 4(g) Sa aumai Malosi e nisi itu ia latou Tala Tusia ma a latou molimau ua iai se faaiuga a le Faamasinoga ile ALC 3975 ma le ALC 3976 ua faamaonia ai o Auala ma Vaisala o nuu mavae. Ua le sa’o lea taofi aua o loo faamanino lelei mai lava I le mafuaga o lena faaiuga ……
Ua na’o se mafuaaga ole faaiuga (ALC3975) ae le ose faaiuga ma o lea ua mafua ai se suesuega ma le faamasinoga ilea so 14/12/1988.”
c)	LTCA 1995 heard the appeal by the Applicants of LTC decision of 1988. LTCA made its verbal ruling after the hearing and dismissed the appeal and upheld the LTC decision of 1988.
“5(a) O Safune Taufasala o ona pitonuu o Vaisala ma Auala ole nuu mavae e tasi.
6. Ua talia e le Faamsinoga le ALC 4289, 4289P1-P5 ae teena ALC 4289P6.”
Discussion:
21.	The court’s jurisdiction regarding strike out application is well settled. 
22.	It is settled law that the Supreme Court has jurisdiction to judicially reviewed decisions of the Land and Titles Court but only where there has been a violation of the Applicants right to a fair trial under Article 9 of the Constitution. 
23.	The thrust of the Applicants complaint is levelled at the 1988 decision which was upheld by the LTCA1995. The Applicants contend that the 1988 decision is inconsistent with the LTC1985 decision. They sought to have the LTC 1988 and LTCA 1995 and (1998 written) decisions judicially reviewed. If any decision to be judicially reviewed would be the LTCA decision ALC4289, 4289P1-P6. 
24.	The LTC 1988 appealed to LTCA 1995 which decision is claimed by the Applicants to be ultra vires as the issue has already been decided by LTC in 1985 which was never appealed and is therefore stare decisis is not correct. The issues in 1985 were different from the issue in LTC 1988 (refer to paragraph 15 above) which was appealed and heard by LTCA in 1995.
25.	The claim of bias against the judges of LTC1988 cannot succeed for the simple reason that the Applicants appealed that decision to the appeal level of LTC in 1995. The judges on LTCA 1995 were different from the LTC 1988 bench. The LTCA 1995 bench upheld the decision of LTC 1988 and dismissed the appeal which decision was delivered verbally and the written available in 1998. The claim of bias by the Applicants was misdirected.
26.	Counsel for the Applicants in oral submissions said that the biasness of the judges of LTC 1988 transcends to the LTCA 1995 is farfetched untenable and without substance.
27.	Any claim by the Applicants that the delay in the written decision being available may have caused them any procedural unfairness cannot succeed.  Any delay will not affect their Motion for Judicial Review. That is, it will not bar them from having their Motion for Judicial Review heard or having them file their Motion if it had not been filed because the Limitation Act does not apply to applications for judicial review. 
28.	Any claim on error of reasoning, issue of res judicata and matters of evidence would require this court to go into the merits of the LTC decisions which is prohibited by section 71 of the Land and Titles Act 1981.
29.	The Applicants were heard in the LTC 1988 and were also heard in LTCA 1995. They have had access to the LTC of first instance and LTC appeal level on the same issue. There are no violations of their right under Article 9 of the Constitution.
Conclusion:
30.	The Notice of Motion for Judicial Review is struck out. 
31.	The Statement of Claim which was filed on 7 December 2015 to accompany the motion for judicial review is struck out.
32.	I leave the issue of costs to the parties to agree upon. The issue can be referred back to court if parties are unable to reach an agreement.

						JUSTICE TUATAGALOA