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Manuseni v President and Registrar of Land and Titles Court and Paepae [2016] WSSC 57 (22 April 2016)

SUPREME COURT OF SAMOA
Manuseni v President and Registrar of Land and Titles Court and Paepae [2016] WSSC 57

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

CP148/15

BETWEEN:

LEOTA-SUATELE MANUSENI, paramount Chief, of Mulivai Safata, ALO IOAPO, ALO SINAPATI AUSEUGA FALANISISI SOALAUPULE, all Matai, of Fusi, Safata, TOLEAFOA MALO, ALAPAPA FANO, LAUMATIA FALANIKO, all Matai of Fausaga Safata and PEPE VIIGA, Matai of Tafitoala Safata.
Plaintiffs

A N D:

THE PRESIDENT OF THE LAND AND TITLES COURT, Mulinuu
First Respondent

A N D:

THE REGISTRAR of Land and Titles Court, Mulinuu
Second Respondent

A N D:

TUIA PAEPAE of Vaiee Safata, ANAPU AIALII of Saanapu Safata and AFEMATA APELU AIAVAO of Sataoa Safata, all Matai.
Third Respondents

Counsel:
T Tiotio for Plaintiffs
S Ainuu for First and Second Respondents
M V Peteru for Third Respondents

Decision: 22 April 2016

DECISION OF THE COURT

Introduction

1. Before the court is an application by the three respondents to strike out the plaintiff’s Statement of Claim and Notice of Motion for orders of prohibition and certiorari.

Background

2. Prior to the amendment of the 1963 Electoral Act in March 2015, the territorial constituency of Safata and other five other constituencies were entitled to elect one additional member to Parliament which means the electors in those constituencies cast two votes at the general elections. The amendment enacted in March 2015 divided each of those 6 constituencies into two separate constituencies for electoral purposes, so that each elector would cast one vote.
3. The division of Safata Constituency into Safata i Sisifo and Safata i Sasa’e was not welcomed by the third respondents. They wrote to the first respondent for leave to petition the Land and Titles Court to divide Safata in accordance with its customary and traditional boundaries. Leave was granted. In their petition which was prepared by the second respondent in accordance with the provisions of the Land and Titles Act 1981, the third respondents claim that there is a customary and traditional way to divide Safata District. They claim at paragraph 4 of the petition:
   • “O le vaeluaina sa’o o le tuaoi fa’aleaganuu o le itumalo o Safata ua i ai lea i Siulepa ma ona Tua ma Togamau ma ona Tua ma o le fa’avae lea o le nonofo ai o le itumalo.”
4. The petition cites the plaintiffs and other matais of Safata as respondents, without alleging what involvement the plaintiffs and the others had in the division of the Safata Electoral Constituency.

The Statement of Claim and Notice of Motion for Prohibition and Certiorari

5. The plaintiffs claim that the petition is a legal challenge to the validity of the amendment but the Land and Titles Court does not have the jurisdiction to make any determination on an Act of Parliament such as the Electoral Amendment Act 2015. Such jurisdiction is confined to the Supreme Court.
6. It is also claimed that the division of the Safata Electoral Constituency was caused by the 2015 Amendment of which the plaintiffs had no involvement. As a consequence of the filing of the petition, the issue of summons for the plaintiffs and others to attend the Land and Titles Court has caused unnecessary pressure on the plaintiffs, the district and their families. It has also caused disharmony and possible violence within the district. They have also suffered damages and incurred unnecessary costs.
7. In their Notice of Motion the plaintiffs seek orders:
   • (i) prohibiting the first respondent from proceeding with the hearing of the petition
   • (ii) directing all the three respondents to transfer the petition to the Supreme Court
   • (iii) to set aside the summons issued to the plaintiffs, and
   • (iv) costs against the respondents.

Strike out Motion by the first and second respondents

8. The strike out motion by the first and second respondent is premised on the grounds that the Notice of motion and Statement of claim are frivolous and vexatious, abuse of process and have no prospect of success.
9. It is contended that the Land and Titles Court has jurisdiction to entertain the petition which is concerned with the traditional boundaries of Safata district. The first respondent’s decision to allow the filing of the petition was not ultra vires as the Land and Titles Court has jurisdiction concerning claims and disputes relating to customary land.
10. As the plaintiffs have not particularised their losses suffered, the claim for damages should also be struck out.

Strike out Motion by the third respondents

11. The strike out motion by the third respondents is similar to that of the first and second defendants. The principal grounds relied upon are:
    • (i) the Land and Titles court is the correct forum for the declaration of traditional boundaries of Safata district and the Supreme Court has no jurisdiction to prevent the hearing of the petition.
    • (ii) one of the main objectives and purpose of the establishment of the Land and Titles Court is to determine petition relating to traditional boundaries, traditional malae or customs and usage of Samoa.
    • (iii) counsel in her oral submissions contended the petition was not a challenge to the validity or legality of the Electoral Amendment Act 2015.

Discussion

12. The principles applicable to an application to strike out a statement of claim and a notice of motion are not disputed. The jurisdiction is to be sparingly exercised. All the allegations are assumed to be factually correct. The plaintiffs case must be so clearly untenable that it cannot possibly succeed.
13. The Land and Titles Court, established pursuant to article 103 of the Constitution, has exclusive jurisdiction in all matters relating to Samoan names and titles and 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. (Section 34 Land and Titles Act 1981).
14. It is common ground that the petition was filed by the third respondents subsequent to the enactment of the Electoral Amendment Act 2015 which divided the Electoral Constituency of Safata into two. It alleges that the amendment Act has ignored or infringed the existing customs and traditions of the district of Safata.

The petition prays the Land and Titles Court to divide the district in accordance with its traditional and customary boundaries.

15. The plaintiffs contended the petition challenges the validity and legality of the amendment Act. The third respondents disagreed; they acknowledged the amendment is for electoral purposes only, but they insist that Safata district has customary and traditional boundaries which they insisted should be defined by the Land and Titles Court.
16. Whether Safata district is capable of being divided into two by custom and tradition is a question for the Land and Titles Court to entertain. If it can be divided it is for that court to determine the customary boundaries. Whether it is an academic exercise and a waste of court time is also for that court to decide.
17. If the third respondents succeed in their petition and Safata district is divided by the Land and Titles Court in a way different from the division under the Electoral Amendment Act, the third respondents may very well use the court ruling to persuade the law makers to reconsider the electoral division. But the third respondent’s petition, contrary to the plaintiff’s claim, is not a challenge to legality or validity of the Electoral Amendment Act 2015.
18. It is true, the plaintiffs cited as respondents in the petition, had no input into the amendment, but the nature and purpose of the petition would require the cultural leaders of all villages in the district to be notified and be parties to the petition seeking the cultural division of Safata. A petition which the plaintiffs alleged in their statement of claim could ignite violence within the district. In fact representatives of other villages have filed responses to the petition.
19. Although the claim for damages is not particularised or quantified, that can be cured by an order to amend the pleadings. However for the reasons given above the claim and notice of motion should be struck out.

Result

(i) The Statement of Claim and Notice of Motion are both struck out.
(ii) Plaintiffs to pay cost of $800 for each of the first and third respondents.

JUSTICE VAAI