THE SUPREME COURT OF SAMOA
Kalevini v Tausaga [2017] WSSC 90 

Case name: 	Kalevini v Tausaga	
		
Citation: 	[2017] WSSC 90	
		
Decision date: 	16 June 2017	
		
Parties: 	TALALELEI LOFIPO KALEVINI, pastor and  LESILI FIPE LOFIPO KALEVINI of Tulaele v TUALA TAMALELAGI TAUSAGA, of Matautu Lefaga, Matai for and on behalf of himself and all other Beneficial Owners of the Customary Land called Leaena at Matautu Lefaga, and LAND AND TITLES COURT, Mulinuu, and THE ATTORNEY GENERAL, for and on behalf of the Ministry of Natural Resources and Environment.

Hearing date(s): 	23 May 2017	
		
File number(s): 	CP118/16	
		
Jurisdiction: 	Civil	
		
Place of delivery: 	The Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Vaepule Vaemoa Vaai	
		
On appeal from:		
		
Order:	-	The motion by the second defendant to strike out the plaintiffs’ statement of claim is dismissed.
-	The second defendant is ordered to file and serve a Statement of Defence to the Claim within 30 days from the date of this decision. That is by the 17th of July 2017.
-	The proceedings against the third defendant as a party are discontinued and the third defendant is accordingly struck out as a party to these proceedings.
-	No order is made as to costs.

Representation: 	R Drake for Plaintiffs
S Ainuu and R Schuster for 2nd and 3rd Defendants

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IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

TALALELEI LOFIPO KALEVINI, pastor and  LESILI FIPE LOFIPO KALEVINI of Tulaele
Plaintiffs

A N D

TUALA TAMALELAGI TAUSAGA, of Matautu Lefaga, Matai for and on behalf of himself and all other Beneficial Owners of the Customary Land called Leaena at Matautu Lefaga, and LAND AND TITLES COURT, Mulinuu, and THE ATTORNEY GENERAL, for and on behalf of the Ministry of Natural Resources and Environment.
Defendents

Counsel:
R Drake for Plaintiffs
S Ainuu and R Schuster for 2nd and 3rd Defendants

Decision: 16 June 2017

DECISION OF THE COURT                                                                                             (MOTION TO STRIKE OUT)
Introduction
These proceedings are about a motion filed for the second and third defendants to strike out the plaintiff’s statement of claim of the 30th of May 2016 filed against the first, second and third defendants.                                                                                                                                          The plaintiffs are a married couple from Tulaele.					 The first defendant is a matai of Matautu Lefaga. He is sued for and on behalf of himself and the beneficial owners of the customary land called Leaena at Matautu Lefaga.                                                                                       			 The second defendant is the Lands and Titles Court - (LTC).                                                          The third defendant is the Ministry of Natural Resources and Environment - (MNRE).                                                                      
Background
The land the subject of these proceedings (hereafter referred to as “the Land”) is part of the customary land Leaena at Matautu Lefaga, described for the purposes of these proceedings as:                                                                                                                                                                                 Lot 1 in Plan 11420, Comprising of 9212 square meters                                      
On the 28th April 2015 a notice of intention to lease the land to the plaintiffs was published in the Savali Newspaper. A copy of the notice as published in Samoan is attached to the affidavit of the Registrar of the second defendant as annexure “A”. It is clear from the notice that was published the intended lessor was the Chief Executive Officer of the third defendant. The publication was made on behalf of the beneficial owner, the first defendant in accordance with section 8 of the Alienation of Customary Lands Act 1965. The land is described as Lot 1 in Plan 11420 (kept at the office of the applicant) and approximately two and a quarter acres in size. The intended lessees were the plaintiffs. The purpose of the lease was for a business. Objections to the leasing of the land in terms of the publication were to be filed with the Office of the Registrar of the second defendant within three (3) months from the date of publication. The three (3) month period for objections expired on Thursday the 28th of July 2015.                     
On the 3rd of August 2015 the Registrar of the second defendant informed the CEO of the third defendant that no objection had been lodged against the publication.                                                     						  On the 4th of September 2015 a Deed of Customary land Lease was signed by the plaintiffs as lessees and the CEO of the third defendant as lessor on behalf of the first defendant.
Between the 9th and 10th of September 2015 the plaintiffs secured the necessary building permits acquired the materials and constructed a residential house on the land.
On the 28th of September 2015, the third defendant received a letter of complaint from relatives of the first defendant regarding the lease. A few days later, the third defendant advised the relatives of the first defendant it cannot stop the work of the lessees on the land because a lease agreement had been signed in accordance with the Alienation of Customary Lands Act 1965. 
On the 1st of October 2015, the Registrar of the second defendant received a complaint from the same relatives of the first defendant who complained previously to the third defendant objecting to the lease for lack of consultation of them by the first defendant.                                                      				  On the 7th of October 2015, the first defendant with his relatives wrote to the Registrar of the second defendant seeking an order to stop the plaintiffs from doing any further work on the land.                                                                                                                   The same day the Registrar requested the plaintiffs to attend a meeting with the first defendant and his relatives on the 14th of October 2015 at Mulinuu.                                                                          
In a report dated the 20th of October 2015 prepared by an officer of the second defendant, a meeting purportedly held between the plaintiffs and the first defendant and his relatives at Mulinuu on an unknown date did not resolve the first defendant’s grievances. Presumably the meeting was held on or before the date the Interim Order was issued.                            
An Interim Order pursuant to section 50 of the Lands and Titles Act 1981 dated the 14th of October 2015 was issued by the Registrar of the second defendant requiring the plaintiffs to stop all work in progress on the land and not to set foot on the land again until the so called dispute was resolved.
By letter dated the 23rd of May 2016, the plaintiffs sought permission from the Registrar allowing them to dismantle the partly constructed house they had built on the land. 
A Statement of Claim dated the 30th of May 2016 was filed by the plaintiff’s Solicitors. In it, the plaintiffs claim against the defendants (inter alia) the sum of $111,874.42 for losses they incurred as a result of the Interim Order issued by the Registrar of the second defendant, a sum of $150,000.00 for general damages, $50,000.00 for exemplary damages and costs of the proceedings. The cause of action pleaded is breach of a condition of the lease.
By letter dated the 6th of June 2016, an officer of the second defendant requested the first defendant and his relatives to meet at its Office on the 20th of June to discuss the plaintiff’s request of the 23rd of May 2016 for permission to dismantle the partly built house on the land. 
On the 22nd of August 2016, the first defendant filed a Statement of Defence.
On the 19th of September 2016, the second and third defendants filed a Notice of Motion to strike out the Statement of Claim.
On the 25th of January 2017 the plaintiff filed a Memorandum of Discontinuance in favour of the third defendant. The motion to discontinue the third defendant as a party to the proceedings was granted by his Honour Sapolu CJ on the 2nd of February 2017 and the proceedings against the third defendant were therefrom discontinued.
The remaining parties for the purposes of these proceedings are the plaintiffs and the second defendants. The first defendant did not file a response to the Motion to strike out the plaintiffs Statement of Claim nor did his counsel appear at the hearing of the Motion. 
Motion to strike out the claim
The second defendant relies on the following grounds in its strike out application.	
(i)	The Plaintiffs failed to comply with the requirement under section 21 of the Limitation Act 1975 as there was no notice provided to the Second Defendant regarding this claim;
(ii)	The Registrar and the judges who alongside him signed the Interim Order issued are protected by judicial immunity. Therefore the plaintiffs claim against the second defendant is not likely to succeed;
(iii)	The plaintiff’s claim is defective in form and an abuse of process. The appropriate relief the plaintiffs should seek in the circumstances against the second defendant are an order or orders to quash the Interim Order issued instead of compensatory damages.
(iv)	The claim is frivolous and/or vexatious.
Discussion 	
A.	Section 21 Limitation Act 1975
In view of opinions expressed in recent decisions by judges of this court and the Court of Appeal that procedural failure to give notice of a claim under the Section 21 of the Limitation Act 1975 goes to form rather than substance senior counsel for the second defendant appropriately abandoned this ground to strike out the claim. 
B.	Judicial Immunity
The argument put forward for judicial immunity protection goes like this. The land in question is customary land and falls under the jurisdiction of the second defendant. The Interim Order issued by the Registrar on the 14th of October 2015 was issued pursuant to his powers under section 50 of the Land and Titles Act 1981 (“the L&T Act”). It was issued with the concurrence of two judges of the LTC. By virtue of section 52 of the Act, an Interim Order issued pursuant to the Registrar’s powers under S. 50 is taken as an Order of the Court. The third defendant was bound by the Interim Order. Because the Interim Order is taken as an order of the Court the Registrar when he issued it (with the concurrence of the two judges who signed it) was acting in a judicial capacity and are therefore protected by judicial immunity.                                                      
The argument against judicial immunity is this. The Registrar lacked the capacity to do what he did because at the time and in the circumstances in which he issued the Interim Order, he was by virtue of the lease agreement entered into by the plaintiffs and the third defendant in accordance with the provisions of the Alienation of Customary Lands Act 1965 deprived of the jurisdiction afforded him under section 50 of the L&T Act. In other words the Registrar in the circumstances did not act in excess of his jurisdiction. Rather he had no jurisdiction to act even if the land is customary land in terms of the Lands & Titles Act. Alternatively, the issuance of the Interim Order in the circumstances it was issued was clearly unlawful.                                                                             
The second defendant relies on the view of McGrath and William Young JJ in Attorney General v Chapman [2011] NZSC 110. In considering whether judicial immunity protection applies the learned justices at page 166 of their judgment (which was the majority view) say: 
“The principles of judicial immunity are the result of a balancing exercise. On the one hand is the problem of a disappointed litigant with a genuine grievance but no remedy. On the other hand there are the undesirable consequences of permitting claims against Judges. The response of the Courts in cases such as Nakhla and Gazley has been to allow the latter consideration to trump the former.” (emphasis mine)
The principles to be balanced were discussed with approval by Sapolu CJ in Tafililupetiamalie v Attorney General [2015] WSSC 62 (30 June 2015). In his judgment his honour concluded that the common law principle of judicial immunity from liability in a civil suit for damages against judges of the Court of Appeal, the Supreme and District Courts also apply to judges of the Lands and Titles Court. 
In the particular circumstances of this case however and therefore these proceedings, I am unable to extend the judicial immunity protection as discussed in the above referred authorities to the issuing of the Interim Order when it was issued.                                                                                                 			 First, the plaintiffs in these proceedings are hardly “litigants” in the contextual meaning of the word litigant as it is used in the balancing exercise McGrath and William Young JJ refer to in their discussion of the judicial immunity protection in Chapman. From the pleadings and the affidavit filed, the Registrar of the second defendant knew before the Interim Order was issued the plaintiffs were parties to a lease of customary land registered with third defendant. The correspondence clearly shows this. At the same time the plaintiffs were never and still are not litigants to any proceedings either already commenced or yet to commence in the Lands and Titles Court. It is also most unlikely they can be parties to any proceedings in the Lands & Titles Court in a dispute over land to which their only legal connection to is a lease. The plaintiffs in Chapman and Tafililupetiamalie were both litigants who were parties to legal proceedings which ran their full courses through the relevant court systems before judicial immunity protection was claimed by the judges who presided in the proceedings from which claims for damages was sought. That is hardly the case here.                                                                                                                               Second, the Registrar even if he is considered in the circumstances he issued the Interim Order a judicial officer is again hardly a ‘judge’ in the context of and in the circumstances within which a judge for the purposes of considering judicial immunity protection was seen in the discussions in Chapman and Tafililupetiamalie.                                                                                                                   Third, there is I find merit in the plaintiffs’ argument that judicial immunity may not apply in circumstances where a judge or a judicial officer is proven to have acted without jurisdiction or unlawfully. This issue requires further and full submissions as well as hearing the relevant evidence.                                                                                                                                               It follows the motion by the second defendant to strike out the plaintiffs claim based on the common law protection of judicial immunity is not proven and consequently fails. 
A.	Plaintiff’s claim is defective
In my humble view, it is not settled law whether a judicial officer in this jurisdiction is protected by judicial immunity from liability in a civil suit for damages if it is proven that he or she acted with the clear knowledge he or she did not have the relevant jurisdiction in circumstances where he or she acted to the detriment of an aggrieved party. It follows this is an issue which is to be properly determined after hearing the evidence and further and full submissions.                                       The motion to strike out the claim based on this ground is also refused. 
B.	The Plaintiffs’ claim is frivolous and vexatious
A proceeding is said to frivolous when a party is trifling with the court or when to put it forward would be wasting the time of the court or when it is not capable of reasoned argument.proceeding may be held to be vexatious for example where it is shown to be without foundation or where it cannot possibly succeed or where an action is brought or defence raised only for annoyance or to gain some fanciful advantage, (see page 7 plaintiffs’ submissions). In determining whether the plaintiffs’ claim here is frivolous and/or vexatious based on the above explained tests, I am not satisfied submissions by counsels for the second defendant in support of this ground meet the required standards to establish it. This ground for striking out the plaintiffs’ claim also fails.
Decision 
1.	The motion by the second defendant to strike out the plaintiffs’ statement of claim is dismissed.
2.	The second defendant is ordered to file and serve a Statement of Defence to the Claim within 30 days from the date of this decision. That is by the 17th of July 2017.
3.	The proceedings against the third defendant as a party are discontinued and the third defendant is accordingly struck out as a party to these proceedings.
No order is made as to costs.
JUSTICE VAEPULE VAEMOA VAAI