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Silipa v President of Land and Titles Court [2017] WSSC 32 (28 April 2017)

SUPREME COURT OF SAMOA
Silipa v President of the Land and Titles Court [2017] WSSC 32

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU
MISC 411/11

IN THE MATTER OF:
Article 9 (1) and Articles 15 (1) and (2) of the Constitution of Samoa 1961 and the Declaratory Judgments Act 1988.

BETWEEN:
RAIE SILIPA and SOFIA SILIPA, residents of the village of Savaia, Lefaga.

Applicants

A N D:
PRESIDENT OF THE LAND AND TITLES COURT, constituted pursuant to the Land and Titles Act 1981.

First respondent

A N D:
TUSANI FAAOLOFALA II, a matai and resident of the village of Savaia, Lefaga.

Second respondent

Counsel:
F E Niumata and T Peniamina for applicants
L Vili and G Fuimaono for first respondent
Second respondent (passed away)

Judgment: 28 April 2017

JUDGMENT OF SAPOLU CJ

Nature of proceedings

1. These proceedings are concerned with a motion for judicial review dated 12 April 2011 by the applicants as subsequently amended by a further motion for judicial review dated 4 July 2014 and a motion by the first respondent to strike out the proceedings for judicial review. By the time of the hearing of these motions, the second respondent had passed away. In fairness to the second respondent, the allegations made by FP in his affidavit in relation to the second respondent are to be considered bearing in mind that the second respondent has passed away and therefore can not reply. However, for the purpose of these proceedings I would have to assume that the facts relied upon by the applicants are correct and capable of proof.

History of proceedings

(a) 1981 Land and Titles Court proceedings

2. In 1981, proceedings were held before the Land and Titles (LTC) at First Instance concerning a permanent concrete house that had been built on part of the land called by one party as “Matavai” and the other party as “Malaē” in Savaia, Lefaga. The parties in those proceedings were Tusani Faaolo II and others classified as the claimants (Itu Tagi) and Leapai Vaa and others classified as the respondents (Itu Tetee).
3. The LTC at first instance by its decision of 22 July 1981 held that the land which was the subject of the dispute was part of the land called Matavai which is under the authority (pule) of the title Tusani of Savaia, Lefaga. The petition of the respondents Leapai Vaa and others was therefore rejected. On appeal by the respondents, leave to appeal was refused by the then President of the LTC on 14 April 1988. The decision of the LTC at First Instance of 22 July 1981 therefore remained.

(b) 2004 Land and Titles Court proceedings

4. In 2004, proceedings were held before the LTC at First Instance concerning the authority (pule) of the land in Savaia, Lefaga, occupied by one Fiu Silipa, the father of the present applicants, and his family. The parties were Fui Silipa, FP and others as the claimants (Itu Tagi). Fui Silipa was then the Sa’o (paramount title holder) of his family and was the leader of the claimants party. The first respondents were Tusani Faaolofala II and others. Tusani Faaolofala II was the same person as Tusani Faaola II in the 1981 proceedings. The second respondents did not take part in these proceedings for judicial review so I will make no further reference to them.
5. In the 2004 proceedings, the claimants referred to the disputed land as “Alaoneone” which is under the authority of the title Fui held by Fui Silipa and FP whilst the first respondents referred to the disputed land as “Matavai” which is under the authority of the title Tusani held by Tusani Faaolafala II. So the central issue in the 2004 was the correct name of the disputed land for that would determine which title held the authority (pule) over the disputed land.
6. It is to be noted here that the parties in the 2004 proceedings were not the same as the parties in the 1981 proceedings. In the 2004 proceedings, the claimants were Fui Silipa, FP and others whilst the first respondents were Tusani Faaolofala II and others. There were also second respondents who did not take part in the judicial review proceedings. In the 1981 proceedings, the claimants were Tusani Faaolo II and others whilst the respondents were Leapai Vaa and others. Furthermore, the land that was the subject of the 2004 proceedings is different from the land that was the subject of the 1981 proceedings. The land that was the subject of the 2004 proceedings is occupied by Fui Silipa and his family whilst the land that was the subject of the 1981 proceedings was the land on which Leapai Vaa had built a permanent concrete house.
7. In the decision of the LTC at First Instance of 3 March 2004 in the 2004 proceedings, the Court held as follows:

“(a) It is confirmed that the current name of the disputed land is Matavai and not Alaoneone, and the land or the Maota is under the authority of the title Tusani, to which the decision LC 7148 – of 22 July 1981 refers.

“(e) The publication by Fui Silipa in the Savali of 13/2/1989 in relation to the land Alaoneone is invalidated.

“(i) The holders of the title Tusani have the authority to decide whether Fui Silipa and his family should continue to occupy part of the land Matavai or be removed.

“(o) Fui Silipa and his family are ordered not to make any further developments on the land without the consent of the title Tusani that owns the land”.

(c) Appeal to the Appellate Division of the Land and Titles Court

8. Following the decision of the LTC at First Instance of 3 March 2004, the claimants Fui Silipa and FP filed an appeal on 3 May 2004 to the appellate division of the LTC. On 28 May 2004, the second respondent Tusani Faaolofala II filed a response. On 21 July 2004, Fui Silipa and FP filed a counter response to the response by the second respondent.
9. In terms of s.85 of the Land and Titles Act 1981, leave to appeal is required from the President of the LTC before an appeal may be heard by the appellant division of the LTC against a decision of the LTC at First Instance. Before the application for leave to appeal by Fui Silipa and FP was to be heard in 2010, Fui Silipa had passed away on 14 October 2008.
10. According to the affidavit sworn by FP on 4 July 2014 in support of the applicants motion for judicial review dated 4 July 2014, after Fui Silipa had passed away in 2008, FP became the Sa’o (paramount title holder) of his family and he was concerned about the relationship between his family and their village because of differences that had arisen regarding lands and the majority of the village were supporting Tusani Faaolofala, the second respondent. As a result of those differences, FP deposed in his affidavit that some numbers of his family had been ostracised from the village. When FP went to discuss his concerns with the second respondent, he was advised by the second respondent to perform a formal apology (ifoga) to the village and to consider withdrawing the appeal by Fui Silipa and himself. FP also said in his affidavit that when the matter was called in August 2009 before the LTC and then further adjourned for another hearing date, the second respondent reminded him to withdraw the appeal to ensure peace and good relationships between his family and the village. At that time, he decided to withdraw the appeal. But he did not discuss what he had decided to do with any member of his family except the children of Fui Silipa who strongly objected to the appeal being withdrawn. He advised the children of Fui Silipa that it did not matter as they could still continue with the appeal as representatives of their late father. The children of Fui Silipa would of course be heirs of the title Fui.
11. FP also deposed in his affidavit that when he received notice from the registrar of the LTC about the date, which was 22 April 2010, on which their application for leave to appeal was to be heard by the President of the LTC, he did not inform any member of his family about it. So on 22 April 2010 he came to Court by himself and when the application for leave to appeal was called for hearing he informed President of the LTC that his family has decided to withdraw the appeal. The appeal was accordingly withdrawn. It is clear from the affidavit of FP himself that what he told the President was untrue because his family had never decided to withdraw the appeal. If anything, the children of the late Fui Silipa had strongly objected to the appeal being withdrawn.
12. FP further deposed in his affidavit that after he had withdrawn the appeal and came out of the Court with the second respondent, the second respondent suggested to him that a letter be prepared to confirm the withdrawal of the appeal. Such a letter was then prepared by the second respondent the same day and dated 22 April 2010 and was signed by both FP and the second respondent. The letter states that all three parties in this matter have agreed to withdraw the appeal. I must say that the said letter is unusual as it is common practice that only the appellants can withdraw their own appeal but here both FP and the second respondent signed a letter prepared by the second respondent saying that all three parties have agreed to withdraw the appeal. I must point out that the procedure for the withdrawal of an appeal is not the same as the procedure for the discontinuance of proceedings in the LTC at First Instance as provided in s.43 A of the Land and Titles Act 1981.
13. Both applicants Raie Silipa and Sofia Silipa had also filed affidavits. Raie Silipa filed an affidavit sworn on 12 April 2011 and Sofia Silipa filed an affidavit sworn on 12 April 2011 in support of the original motion for judicial review filed on 13 April 2011. Sofia Silipa further filed a supplementary affidavit sworn on 4 July 2014 in support of the amended motion for judicial review filed on 25 July 2014.
14. According to the affidavits of Sofia Silipa, her late father and his immediate family have been living on the disputed land since she was child. They had built paramount houses on the disputed land and at the time of these proceedings have three houses on the land. These are a European style house made of cement, bricks and timber, a second European style house made of cement and timber, and a third house which is an open house also made of cement, timber, and Samoan posts. A grave of her uncle is also on the land. The affidavits of Sofia Silipa also show that her late father was the Sa’o of their family and was the leader of her family’s party in the 2004 LTC at First Instance proceedings. He is also one of the two signatories with FP in the appeal that was filed against the decision of the LTC in the 2004 proceedings.
15. It also appears from the affidavits of Sofia Silipa that FP resided in New Zealand and has never resided with his family on the disputed land.
16. It further appears from the affidavits of Sofia Silipa that when FP and other matais of their family informed her and the other children of Fui Silipa about withdrawing the appeal, they objected to it. In response, FP informed Sofia Silipa that she can continue with the appeal but his name will be withdrawn from the appeal.
17. By letter dated 21 April 2010, Sofia Silipa and her brother Raie Silipa wrote to the then registrar of the LTC that they had received information from the office of the registrar that their appeal had been called before the LTC and was adjourned. They then requested to be advised as to when the matter will be called again. This letter was received by the office of the then registrar of the LTC on the same day, 21 April 2010. Unknown to Sofia Silipa and Raie Silipa their family’s appeal was to be called again the very next day, 22 April 2010, when FP withdrew the appeal.
18. By letter dated 17 May 2010, Sofia Silipa and Raie Silipa wrote to the President of the LTC complaining that they had been to the office of the registrar of the LTC for confirmation of the date to which their matter had been adjourned to from 22 April 2010, but they were informed that their family had agreed to withdraw the appeal and the second respondent and FP had written a letter to the President saying that their family had agreed to withdraw the appeal. Sofia Silipa and Raie Silipa strongly denied that they had agreed to withdraw the appeal. They then prayed to the President for leave to allow them to continue with their late father’s appeal as they have been living on the disputed land for many years and they have many assets on the disputed land as well as their family’s graves.
19. By letter dated 25 May 2010, the decision of the President of the LTC dated 24 May 2010 was conveyed to Sofia Silipa and Raie Silipa. The essence of the decision by the President is that the authority over family customary land is held by the Sa’o of the family. As Fui Silipa, the father of the applicants, has passed away and FP has become the new Sa’o of the family, the authority is now vested in Fui Silipa who has agreed to withdraw the appeal. The Court therefore accepts the letter from the second respondent and FP to withdraw the appeal.
20. The affidavit of Raie Silipa is to the same effect as the affidavits of his sister Sofia Silipa.

The decision of the President of the LTC on the application by Raie Silipa and Sofia Silipa for them to continue the appeal

21. By letter of 25 May 2010, the registrar of the LTC conveyed to Sofia Silipa the decision reached by the President of the LTC on her application with Raie Silipa of 17 May 2010 for them to continue the appeal. The decision of the President is as follows:
    • “1. Sofia Silipa and Raie Silipa should realise that customary lands are held under the authority of the Sa’o of the family. When their father Fui Silipa was alive, he held the authority over the family’s lands because he held the title Fui.
    • “2. Fui Silipa has passed away, so he has gone with his Christian name Silipa but the title Fui of the family is left behind which is now held by FP.
    • “3. He now holds the authority at this time. He is not bound by any decision or opinion of Fui Silipa whilst alive.
    • “4. The decision by FP to withdraw the appeal filed by Fui Silipa was made pursuant to his authority as the Sa’o. And it was accepted by the Court.
    • “5. The written application by Tusani Simanu and FP to withdraw the appeal is granted.

“Lesatele Rapi Vaai

“24/5/10”

22. It would appear that the basis of the decision to refuse the application by Raie Silipa and Sofia Silipa is that the Sa’o of the family holds the authority over the customary lands of the family and he is also not bound by any decisions or pinions of his predecessor. Therefore, FP being the current Sa’o of the family, he had the authority to withdraw the appeal filed by Fui Silipa.

The amended motion for judicial review by the applicants Raie Silipa and Sofia Silipa

23. Following the decision of the President of the LTC of 24 April 2010, the applicants Raie Silipa and Sofia Silipa filed a motion for judicial review on 13 May 2011. Opposition was filed on behalf of the President as first respondent and a motion to strike out was also filed on 10 June 2011. Then by an amended motion for judicial review, the applicants sought various orders: (a) declaratory orders that the decisions of the President, as first respondent of 22 April 2010 to grant withdrawal of the appeal by FP and of 24 May 2010 to refuse the application by the applicants for them to continue the appeal were both unlawful and wrong in law, (b) certiorari to quash both decisions, and (c) a declaration that the applicants as the heirs of Fui Silipa have standing to continue the appeal or file their own application for leave to appeal. I need not refer to the other orders sought by the applicants.
24. The grounds of the motion for review are that the decisions of the first respondent were in breach of Article 9 (1) of the Constitution as to the right to a fair trial and Article 15 (1) as to freedom from discriminatory legislation.

The first respondent’s motion to strike out the motion for judicial review

25. Following the applicants original motion for judicial review filed on 13 May 2011, the first respondent filed a strike out motion on 10 June 2011. The grounds of the strike out motion were that the motion for review is frivolous and vexatious because : (a) it fails to show with clarity how or why the first respondent’s decision of 25 May 2010 was in violation of the applicants might to a fair trial under Article 9 (1) of the Constitution, and (b) it fails to show with clarity why the first respondent’s decision was in violation of the applicants freedom from discriminatory legislation under Article 15(2) of the Constitution. I have to say that there was no decision of the first respondent of 25 May 2010. The two decisions of the first respondent were the decision of 22 April 2010 granting leave to FP to withdraw the appeal filed by him and Fui Silipa and the decision of 24 May 2010 which in effect denied the application by the applicants for them to continue with the appeal. It is the letter from the registrar which conveyed the first respondent’s decision of 24 May 2010 that is dated 25 May 2010. This was subsequently corrected in the written submissions of counsel for the first respondent.

Issues

(a) Res judicata (issue estoppel)

26. The doctrine of res judicata as it relates to issue estoppel applies to proceedings before the LTC either at First Instance or at the appellate level. It is also a relevant ground in a motion for judicial review against a decision of the LTC at First Instance or the appellate level of the LTC where an issue has already been litigated and determined in previous proceedings. In Ainuu v Land and Titles Court [2011] WSSC 36, paras 40-46, this Court accepted that res judicata as it relates to issue estoppel applies to proceedings before the LTC and it was also relevant to the consideration of the motion for judicial review in that case as the issue in that case had already been determined in previous judicial proceedings.
27. With respect, I do not accept the submission by counsel for the applicants that re judicata is not relevant to proceedings for judicial review of a decision of the LTC because it involves analysing the merits of the case. That is not so. Res judicata does not involve analysing the merits of a case. It also does not involve revisiting the merits of a previous judicial decision. Res judicata as issue estoppel simply means that an issue has been finally decided by a Court of competent jurisdiction in previous proceedings so that a party to the proceedings cannot raise the same issue again in subsequent proceedings between the same parties: Reed v Mataeliga [2005] WSSC 1.
28. For res judicata as issue estoppel to apply, the following conditions as set out by Lord Guest in Carl Zciss Stifteing v Raynor & Keeler Ltd (No 2) [1967] 1 AC 853, 935 must be satisfied: (a) the same issue has been decided, (b) the judicial decision which is said to create the estoppel was final, and (c) the parties to the judicial decision or their privies were the same persons as parties to the proceedings in which the estoppel is raised or their privies.
29. Counsel for the first respondent submitted that res judicata applied to the 2004 proceedings before the LTC at First Instance because the issue that had been raised in the 1981 proceedings and adjudicated upon, was the same issue that was again raised in the 2004 proceedings and the second respondent was a party not only to the 1981 proceedings but he was again a party to the 2004 proceedings. By implication, this means that the President was right to grant leave to withdraw the appeal by Fui Silipa and FP in 2010. With respect, I am not able to agree with the submissions by counsel for the first respondent.
30. In the first place, the issue that was raised and determined in the 1981 proceedings was not the same as the issue that was raised and determined in the 2004 proceedings. In the 1981 proceedings, the issue that was raised for determination by the LTC was whether the land on which the respondent Leapai Vaa had built his concrete house was called Malaē which was under the authority of the title Leapai or whether the land was called Matavai which was under the authority the title Tusani held by the claimant Tusani Faaolo II. In the 2004 proceedings, the issue with which the LTC was concerned was whether the land in dispute which is occupied by the claimant Fui Silipa was Alaoneone held under the authority of the title Fui or whether the land is part of the land Matavai held under the authority of the title Tusani of the first respondent Tusani Faaolofala II. So the issues that were raised in the two proceedings in 1981 and 2004 were not the same. On that basis, res judicata by issue estoppel could not have applied to the 2004 proceedings to stop the claimants Fui Silipa, FP and others from proceeding with their petition before the LTC at First Instance. And the LTC in 2004 did not stop the claimants from proceeding with their claim.
31. Secondly, the parties in the 1981 proceedings were not the same as the parties in the 2004 proceedings. In the 1981 proceedings, the claimants were Tusani Faaolo II and others whilst the respondents were Leapai Vaa and others. In the 2004 proceedings, the claimants were Fui Silipa, FP and others whilst the first respondents were Tusani Faaolofala II and others and the second respondents were Leapai Asofou and others. Again on this basis, res judicata by issue estoppel could not have applied to the 2004 proceedings.
32. Counsel for the first respondent in the present proceedings seem to contend that in the 1981 proceedings, the LTC held that part of the land occupied by the claimant Fui Silipa and his family was held under the authority of the title Tusani. With respect, I do not agree with this interpretation of the 1981 decision. But if the interpretation by counsel is correct, then that would be a serious denial of natural justice to Fui Silipa and his family because they were not parties to the 1981 proceedings. It would mean that the land which they occupy and claim to be under the authority of the title Fui had been removed from them by the LTC in 1981 without being first given a fair opportunity to be heard. This can not be right.
33. For those reasons, res judicata could not have applied to the 2004 proceedings.

(b) Standing and right of appeal

34. It was submitted by counsel for the first respondent that the applicants have no standing to continue the appeal filed by their late father Fui Silipa and FP because the appeal had been withdrawn by FP with the leave of the President. This is because of s.34 of the Land and Titles Act 1981 which provides that the LTC shall have exclusive jurisdiction, insofar as relevant, in all matters relating to Samoan names and titles and in all 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 people. As it appears from the written submissions of counsel for the applicants, what is sought by the applicants is for them to be granted leave to continue the appeal filed by their father.
35. To recapitulate on what happened in this case, the applicants, their father Fui Silipa, and their family had been living on the disputed land since at least the time of the applicants childhood. Their family built permanent houses on the land and at the time of these proceedings the applicants family had three permanent buildings on the land. The grave of their uncle is also on the land. I would expect that they also have crops on the land. FP who resided in New Zealand has never lived with his family on the land. In the 2004 proceedings regarding the disputed land, Fui Silipa and FP were the claimant party with the second respondent in the present proceedings and others being the first respondent party. Fui Silipa was the leader of the claimant party being the Sa’o of his family at the time. The second respondent in these proceedings was the leader of the first respondent party being the Sa’o of his family. The LTC at First Instance determined that the disputed land is held under the authority of the title Tusani in favour of the first respondent party. Fui Silipa and FP then filed an appeal against the decision of the LTC at First Instance to the appellate division of the LTC. Fui Silipa was primarily responsible for the preparation and filing of the appeal. But whilst the appeal was pending, Fui Silipa passed away on 14 October 2008. FP then became the Sa’o of the family to succeed Fui Silipa.
36. When FP became the Sa’o of the family, he was concerned about the relationship between his family and the village because of differences regarding lands and the majority of the village were supporting the second respondent. Some members of his family had been ostracised by the village from the affairs of the village. As deposed to by FP in his affidavit, when he met with the second respondent, he was advised by the second respondent to perform a formal apology to the village and to consider withdrawing the appeal. It was further deposed by FP in his affidavit that when the appeal was called before the Court in August 2009 and then adjourned for another hearing date, the second respondent reminded him to withdraw the appeal to ensure peace and good relationships between his family and the village.
37. An appeal is of course a creature of statute. This is trite law insofar as some of the other jurisdictions like New Zealand are concerned. But that is not so in Samoa as the present proceedings have again shown. An appeal is also different from an application for judicial review. The distinction between appeal and judicial review is explained in Constitutional and Administrative Law in New Zealand (2001) 2nd ed by PA Joseph where that learned author stated at para 20.3.1.
    • “Rights of appeal are statutory, powers of judicial review are inherent. Whereas Parliament must confer rights of appeal, judicial review is the exercise of the High Court’s inherent jurisdiction to rule on the legality of public acts...
    • “The High Court is ‘not an administrative appeal tribunal’: Waitakere CC v Waitemata Electricity Shareholders Society [1996] 2 NZLR 735, 738. The Courts lack an inherent appellate jurisdiction over administrative authorities and any rights of appeal must be specifically conferred by Parliament: ‘Appellate powers are purely statutory. There is no such thing as a common law right of appeal’: Guy v Medical Council of New Zealand [1995] NZAR 67, 93 – 94”.
38. Further on in Constitutional and Administrative Law in New Zealand (2001) 2nd ed, the learned author stated at para 20.3.3:
    • “The Courts hold that there is an essential difference between appeal and review. Review is concerned with the legality of the decision, whether it was reached in accordance with law, fairly and reasonably. A reviewing Court must address the process and procedures of decision-making and ask whether the decision should be allowed to stand. Appeal, by comparison, entails adjudication on the merits and may involve the Court substituting its own decision for that of the decision maker. In Chief Constable of the North Wales Police v Evans [1982] 3 A11 ER 141, 155, Lord Brightman said review involves sitting in judgment on the correctness of the decision-making process, whereas appeal involves sitting in judgment on the correctness of the decision itself. In R v Entry Clearance Officer; Exparte Amin [1983] 2 AC 818, 829, Lord Fraser reiterated that review was not concerned with the merits of the decision but rather with the manner in which it was made. Appeal, on the other hand, was directed at the preferred outcome and differed from review. ‘The appeal tribunal substitutes its own decision on the merits for that of the administrative officer.’
    • “The New Zealand Courts have followed Evans and held that the proper concern on review was ‘with the decision-making process, not the decision itself’: R v Sloan 1 [NZLR] 474, 479; Fraser v State Services Commission [1984] 12 NZLR 116, 127; Timmuins v Governor General [1984] 2 NZLR 298, 302. In Waitakere CC v Lavelock [1997] 2 NZLR 385, 397, Richardson P observed that review was not an appeal on the merits and that the Court ‘could not substitute its own opinion for that of the elected council’”
39. I have referred at some length to the distinction between an appeal and an application for review not only to explain that distinction but because the requirement for standing in respect of an appeal has been expressed differently in legislations from that for review. In English law, the requirement for standing for bringing an appeal has been expressed in legislations as whether the appellant is a person who had been aggrieved by the decision that is the subject of the appeal. In other words, is he an “aggrieved person”: Judicial Review of Administrative Action (1995) 15th ed by de Smith, Woolf and Jowell paras 2-054-2-062. Even though there have been criticisms of the expression “aggrieved person” as vague, it is still used in many legislations as the requirement for determining whether a person has standing to appeal: Judicial Review for Administrative Action (supra) at para 2-055. In respect of an application for review, the requirement that has been adopted in English law for determining whether a person has standing is that of “sufficient interest”: Inland Revenue Commissioners v National Federation of Self – Employed and Small Businesses Ltd [1981] 2 A11 ER 93. It must be noted that the requirement of aggrieved person for an appeal does not mean the same thing as the requirement of sufficient interest for an application for review.
40. In Gay v Bruns CA 193/98, 17 June 1999, which was concerned with proceedings relating to the Insolvency Act 1967 (NZ), Tipping J interpreted the meaning of the word ”aggrieved” in s.8 of the Act at paras [4] and [5] as follows:
    • “[4] The concept of an appeal right being vested in someone “aggrieved” by a decision is potentially a wide one. I would not wish unreasonably to restrict its effect. Nevertheless, the concept must have some inherent restriction for it cannot simply mean that someone who is unhappy with a decision can appeal. Gallen and Doogue JJ have referred to a number of cases which bear on the topic...
    • “[5] The necessary limitation on the concept of a person aggrieved must be that the decision affects the person’s position in some legally detrimental way. This means that the person claiming to be aggrieved must be legally worse off in some substantive or procedural way as a result of the decision...’
41. More recently in Glynbrook 2001 Ltd v Official Assignee [2012] NZCA 289, the New Zealand Court of Appeal adopted the interpretation given by Tipping J to the word “aggrieved”.
42. It follows from the above discussion that to determine whether the applicants have standing to continue the appeal that was filed by their father and FP but subsequently withdrawn by FP, the inquiry must start with the provisions of the Land and Titles Act 1981 because a right of appeal can only be a creature of statute.
43. Section 76 (1) of the Land and Titles Act 1981 provides that subject to subsection (2) (which is not relevant), any party to any proceedings may appeal against any final decision or order of the Court. So only a party to proceedings can appeal a decision of the LTC. A non-party has no right of appeal. The term party is defined in s.2 of the Act, insofar as relevant, as follows:
    • “ ‘Party’ includes every person who takes part as claimant, objector, petitioner, respondent or applicant in any proceedings under this Act (other than as a witness) whether or not named as a party to any such proceedings...”
44. Two points need to be noted about this definition of the term “party”. The first is that the definition of party is inclusive, not exhaustive. It uses the word “includes”. The second point is that a party includes a person who is not named as a party in the proceedings. The usual way to ascertain the parties to LTC proceedings is to look at the decision of the Court which normally sets out the names of the claimants and the respondents. The applicants Raie Silipa and Sofia Silipa are not named in the decision of the LTC at First Instance in the 2004 proceedings or in the appeal that was later filed to the appellate division of the LTC. Their father Fui Silipa was the Sa’o of their family and was the leader of their family as the claimants party in the First Instance proceedings. It was not necessary for the applicants and the rest of their family to be also named as parties. Their family was represented by their father. However, as Sofia Silipa deposed in her affidavit sworn on 11 April 2011, she was very much involved in the preparations of the submissions and arguments by her father for the hearing in the 2004 proceedings. So she did take part in those proceedings assisting her father who was the leader of the claimaints party for the purpose of the definition of “party”.
45. Even though the words “aggrieved person “or “a person is aggrieved” are not used in the definition of the term “party”, I am of the clear view that the applicants, who are also heirs of the title Fui through their father, are aggrieved persons. Sofia Silipa has deposed in her affidavits that she, her siblings, and her mother have been detrimentally affected by the 2004 decision of the LTC at First Instance. She and her siblings had grown up and lived on the disputed land all their lives and they have three permanent houses on the land. The grave of her uncle is also on the land. But FP who withdrew the appeal and his family had never resided on the land. And when FP informed her and her siblings regarding his thoughts about withdrawing the appeal, they strongly objected to it. But FP had misled them by saying that he would withdraw his name from the appeal but they could still continue with the appeal as the children of Fui Silipa. Sofia Silipa also claims that her father’s appeal has strong merits. In these circumstances, and given the definition of the term party, I am of the view that the applicants would qualify as parties and therefore have standing to continue with the appeal filed by their father and FP.
46. It was submitted for the first respondent that the customary lands of a family are held under the authority of the family. FP as the new Sa’o of the family therefore had the authority to withdraw the appeal. I agree that customary lands are held under the authority of the Sa’o of the family. But the exercise of such authority is subject to the law. The Sa’o may not misuse his authority to the detriment of the members of his family. If he does, the exercise of his authority may be challenged in Court.
47. Furthermore, the authority of a Sa’o over customary land is not the same thing as ownership of the land. Customary land belongs to the family. The position of a Sa’o is analogous to that of a trustee who looks after the properties of the family for the good of the family. The Sa’o is not supposed to misuse his position.
48. In addition, while the Sa’o has authority over the customary lands of the family, it cannot be said that the land in dispute in this case was under the authority of the title Fui held by Fui Silipa and FP. That was the very issue for determination in the 2004 proceedings whether the disputed land was under the authority of the title Fui or the title Tusani. The LTC determined that the land was under the authority of the title Tusani. So at the time of the leave to appeal proceedings, FP had no authority as a Sa’o over the disputed land. The purpose of the appeal was to set aside the decision of the LTC at First Instance and for the disputed land to be vested under the authority of the title Fui.

(c) Functus officio

49. Counsel for the first respondent also submitted that when the President of the LTC received the application by the applicants for them to continue with the appeal, leave had already been granted to FP to withdraw the appeal and the appeal was withdrawn. That decision granting leave to withdraw could not be reopened when the President received the application by the applicants as the Court by that time was functus officio. In support of this submission, counsel for the first respondent relied on the New Zealand cases of Butterfield v R [1997] 3 NZLR 760 and Redcliffe Forestry Venture Ltd v Commissioner of Inland Revenue [2010] NZHC 176; [2011] 1 NZLR 336. I accept that the general rule of functus officio applies to judgments of the Land and Titles Court. But even if the Court was functus officio when leave was granted to withdraw the appeal and the appeal was formally withdrawn and recorded, the judgment of the Court is still amenable to judicial review if there has been a breach of the Constitution.

(d) Withdrawal of the appeal and abuse of process

50. The question here is whether the withdrawal of the appeal constituted an abuse of process. If it did, then the withdrawal of the appeal is invalid and should be set aside. For present purposes, the New Zealand High Court in Hurunui Water Project Ltd v Canterbury Regional Council [2015] NZHC 3098 said at paras [83] – [86]:
    • “[83] The jurisdiction of a Court to prevent an abuse of its own process is the means by which a Court can prevent its own procedures from being misused to achieve a result which is manifestly unfair to a party to the litigation, or would otherwise bring the administration of justice into disrepute among right – thinking people: Hunter v Chief Constable of the West Midlands Police [1981] UKHL 13. A misuse of the judicial process which tends to produce unfairness and to undermine confidence in the administration of justice may entitle a Court to act to prevent such abuse: Reid v New Zealand Trotting Conference [1984] 1 NZLR 8; Waitakere City Council v Kitewako Bush Reserve Co Ltd [2005] 1 NZLR 208 and [65].
    • “[85] In Telstra New Zealand Holdings Ltd v Commissioner of Inland Revenue [2010] NZHC 2195, Wylie J held that the jurisdiction to set aside a discontinuance, which is a procedural step analogous to the withdrawal of an appeal, is likely to be used sparingly and only where plainly justified. The misconduct must be ‘plain and obvious’ before a Court will find its processes have been abused.
    • “[86] In assessing whether there has been an abuse of process the focus must be on the actions of the parties. In this case, the acts alleged include that of the appellant, Amuri, which seeks to withdraw its appeal and that of CRC which consented to that course. However, the jurisdiction is not a punitive one employed to discipline or express disapproval of the parties conduct: Fox v Attorney General [2002] NZCA 158”
51. Further at para [88], the Court said:
    • [88] An immediate issue that arises in the context of the present case is whether the parties withdrawal of an appeal can of itself constitute an abuse of process. The Environment Court relied on the House of Lords decision in Costanho v Brown & Root (UK) Ltd [1981] AC 557 as supporting the proposition that a purported discontinuance could be held invalid as being an abuse of process”.
52. In Ortmann v United States of America [2017] NZHC 189, the New Zealand High Court said at para [454]:
    • “[454] Adopting the approach of Bow Street Magistrates Court [2006] EWHC 2256; [2007] 1 WLR 1157 and the guidance of our Supreme Court in Siemer v Solicitor General [2013] NZSC 68, USA v Dotcom [2014] NZCA 444 and Wilson v R [2015] NZSC 189, this eligibility Court needs to:

“(1) Decide whether the conduct alleged to constitute an abuse of process has been clearly identified;

“(2) If that is established, is the conduct complained of capable of amounting to abuse of process?

“(3) If it is, are there reasonable grounds for finding that such conduct occurred?

“(4) If so, would that abuse prevent the Court from conducting a fair hearing?

“(5) Recognise that the granting of a stay is an extreme remedy given only in the clearest of cases when it is necessary to maintain the integrity of the judicial system”

53. In the case of Waterhouse v Contractors Bonding Limited [2013] NZSC 89, Glazebrook J, in delivering the reasons for judgment of the New Zealand Supreme Court, said at paras [30]-[32]:
    • “[30] We accept the submission of Mr Harrison that the power, under the High Court Rules or the inherent powers of a Court, to stay a proceeding for abuse of process is not limited to the narrow tort of abuse of process. In any event, Mr Mills accepts the abuse of process ground would also be available in the circumstances set out by Lord Diplock in Hunter v Chief Constable of the West Midlands Police [1981] UKHL13:
      • “... the inherent power which any Court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people. The circumstances in which abuse of process can arise are very varied; ... It would, in my view, be most unwise if this House were to use this occasion to say anything that might be taken as limiting to fixed categories the kinds of circumstances in which the Court has a duty (1 disavow the word discretion) to exercise this salutary power’.
    • :[31] In Australia, a majority of the High Court in Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] HCA 43 identified the following categories of conduct that would attract the intervention of the Court on abuse of process grounds:
      • (a) proceedings which involve a deception on the Court, or those which are fictitious or constitute a mere sham;
    1. (b) proceedings where the process of the Court is not being fairly or honestly used but is employed for some ulterior or improper purpose or in an improper way;
2. (c) proceedings which are manifestly groundless or without foundation or which serve no useful purpose; and
3. (d) multiple or successive proceedings which cause or are likely to cause improper vexation or oppression.

“[32] The majority also said that, although the categories of abuse of process are not closed, this does not mean that any conduct of a party or non-party in relation to judicial proceedings is an abuse of process if it can be characterised as in some sense unfair to a party. It does, however, extend to proceedings that are “seriously and unfairly burdensome, prejudicial or damaging” or “productive of serious and unjustified trouble and harassment”

54. It is clear from the material before the Court that Fiu Silipa was primarily responsible for the preparation and filing of the appeal that was filed against the decision of the LTC at First Instance. As the then Sa’o of the family as well as long time occupier of the disputed land, this was only to be expected. At the time of his death, there is nothing to suggest that he wanted the appeal to be withdrawn. He must have intended the appeal to proceed. However, when he passed away on 14 October 2008 and FP became the Sa’o of the family, FP started entertaining ideas about withdrawing the appeal. FP said in his affidavit that he met with the second respondent who suggested to him to consider withdrawing the appeal. That must have been before August 2009. When FP and the second respondent met again in August 2009, the second respondent reminded FP about withdrawing the appeal. After FP withdrew the appeal on 22 April 2010 and he came out of the Court with the respondent, FP said the second respondent suggested to him that a letter be prepared to confirm the withdrawal of the appeal. Such letter was prepared by the second respondent which he and FP then signed. It is rather unusual for a respondent party to be involved in the withdrawal of an appeal. That is normally done by the appellant alone.

55. FP had also informed the applicants and their siblings regarding his thoughts about withdrawing the appeal. The applicants strongly objected to such a course being taken. FP then told the applicants that he would withdraw his name from the appeal but the applicants can continue with the appeal. However, FP never told the applicants that the appeal was to be called before the President of the LTC on 22 April 2010 and that he was going to withdraw the appeal. On that date, FP appeared in Court and withdrew the appeal. In effect, FP had misled the applicants because he never told them that he was going to withdraw the appeal but only his name from the appeal and that the applicants can continue with the appeal.
56. FP also misled the President of the LTC by informing the Court that his family had agreed to withdraw the appeal when that was not true because the applicants had strongly objected to FP about withdrawing the appeal. He never told the Court that the children of Fui Silipa were in strong opposition to the withdrawal of the appeal. What was said in the letter of 22 April 2010 signed by both FP and the second respondent that FP’s family had agreed to withdraw the appeal was also untrue.
57. The consequence of this was that the applicants were denied the opportunity to have the application for leave to appeal filed by their father determined by the Court on its merits. The applicants were also in effect denied the possibility of being heard on the merits of the appeal should leave be granted. In my view, FP’s conduct amounted to abuse of process.

(e) Alleged breach of the right to a fair trial under Article 9 (1) of the Constitution

58. In Samoa Party v Attorney General [2009] WSSC 23, it was held that the right to a Court or the right of access to a Court though not expressly stated in Article 9 (1) of the Constitution is a fundamental aspect of the right to a fair trial stated in Article 9 (1). Counsel for the applicants submitted that the decision by the first respondent denying their application to be joined as a party to the appeal proceedings instituted by their father so that they could continue with the appeal amounted to a denial of their rights to a fair trial. On the other hand, counsel for the first respondent submitted that the applicants had access to a Court when they filed their application to continue with the appeal and that they also had a reasonable opportunity to be heard because their application was considered by the first respondent before it was denied.
59. In my view, the applicants had been denied their rights to a fair trial in terms of Article 9 (1) of the Constitution. They did not have the opportunity to be heard on the merits of the application for leave to appeal filed by their father because FP, without their knowledge and contrary to their wish, had withdrawn the appeal. When their application to continue with the appeal was received by the first respondent leave had already been granted to FP to withdraw appeal and the appeal had been formally withdrawn. As submitted by counsel for the first respondent, the Court was functus officio by the time the first respondent had received the application by the applicants. In other words, the door was already closed and the applicants could not get in.
60. Counsel for the first respondent further submitted that even though the applicants had no standing because they were not parties to the initial proceedings they were still given a reasonable opportunity to be heard on the application for leave to appeal by their father as evident from the response from the first respondent dated 24 May 2010 and conveyed by letter dated 25 May 2010 from the registrar. It appears to me from the response by the first respondent that the ground for denying the application by the applicants was that they had no standing but FP had standing to withdraw the appeal. I have already decided that the applicants had standing and the conduct of FP in withdrawing the appeal amounted to abuse of process. Not only the applicants were misled but also the first respondent. By withdrawing the appeal, FP had also misused his authority as the Sa’o of his family. His exercise of authority as Sa’o was subject to the law. By his abuse of process, the applicants did not receive a reasonable opportunity to be heard on the merits of the leave application to appeal. They have also been denied the opportunity to be heard on the merits of their father’s appeal had leave been granted.
61. In these circumstances, the withdrawal of the appeal is invalid and should be set aside. As a consequence, the decision by the first respondent granting leave to withdraw the appeal is also invalid and is set aside. Likewise the decision by the first respondent which in effect denied the application by the applicants to be joined as parties to continue their father’s appeal.

(f) Alleged breach of the freedom from discriminatory legislation under Article 15 (2) of the Constitution

62. Article 15 (2) of the Constitution which provides for freedom from discriminatory legislation states:
    • “(2) Except as expressly authorised under the provisions of this Constitution, no law and no executive or administrative action of the State shall, either expressly or in its practical application, subject any person or persons to any disability or restriction or confer on any person or persons any privilege or advantage on grounds only of descent, sex, language, religion, political or other opinion, social origin, place of birth, family status, or any of them.”
63. I am not satisfied that the decision of the first respondent of 24 May 2010 which had the effect of denying the application by the applicants was in breach of Article 15 (2) on the ground that it discriminated against the applicants on the basis of family status. What the first respondent in his decision/explanation was saying was that a family’s customary lands are held under the authority of the Sa’o of the family. The Sa’o of the family is also not bound by the decisions or opinions of a previous Sa’o. FP therefore had the authority to withdraw the appeal. I do not see anything that was discriminatory in what the first respondent was saying. The first respondent was considering the application by the applicants from the perspective of the Sa’o of the family and his authority. The matter was not being considered from the perspective of the applicants whether they should be granted leave to be joined as parties to continue with the appeal. In any event, the matter seems to have become functus officio and the first respondent could no long do anything about it.

Conclusions

64. (a) The withdrawal of the appeal is an abuse of process which had the effect of depriving the applicants of their constitutional rights to a fair trial and it is set aside as invalid.
    • (e) The decision of the first respondent of 22 April 2010 to grant leave to withdraw the appeal is declared invalid and is set aside.
    • (f) The decision of the first respondent of 24 May 2010 which in effect denied the application by the applicants for them to continue the appeal filed by Fui Silipa and FP is also declared invalid and is set aside.
    • (g) The strike out motion is dismissed.
65. The matter is remitted back to the LTC for the applicants to be joined as parties to the appeal and the application for leave to appeal and for that application for leave to appeal to be heard and determined on its merits.
66. The parties to file submissions as to costs in ten (10) days if agreement cannot be reached.

CHIEF JUSTICE