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Siaosi v Attorney General [2019] WSSC 48 (4 October 2019)

SUPREME COURT OF SAMOA
Siaosi v Attorney General [2019] WSSC 48

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

TUILETUFUGA SIAOSI of Apia, Samoa matai and businessman.
Plaintiff

A N D

ATTORNEY GENERAL on behalf of the Minister of Lands of the Independent State of Samoa.
Defendant

Counsel:
T R S Toailoa for plaintiff
R Wendt for defendant

Judgment 4 October 2019

JUDGMENT OF SAPOLU J
TEMPORARY JUSTICE OF THE SUPREME COURT
AND FORMER CHIEF JUSTICE

Proceedings

1. The Court was concerned in these proceedings with a motion by the defendant to strike out the plaintiff’s statement of claim on the general grounds that the statement of claim disclosed no reasonable cause of action and it was frivolous, vexatious, and an abuse of process.
2. There are two causes of actions pleaded in the statement of claim. The first of cause of action is pleaded in paras 1 to 10 and the second cause of action is pleaded in paras 11 to 14. The first cause of action is against the Attorney General on behalf of the Minister of Lands for alleged trespass to land and for recovery of land alleged to be customary land which pertained to the matai title Tuiletufuga of Apia. The second cause of action which is also against the Attorney General on behalf of the Minister of Lands is for alleged unlawful taking of land pertaining to the title Tuiletufuga of Apia without compensation and for alleged trespass to land.
3. n support of its grounds to strike out the plaintiff’s first cause of action, the defendant provided the following reasons:
   • (a) Article 123 of the Constitution has vested the disputed land absolutely in the Independent State of Samoa;
   • (b) Given that the alleged transfer of the disputed land from Tuiletufuga Leapai of Apia to the Imperial Government of Germany occurred on 21 September 1901, this matter ought to have been dealt with expeditiously during the time of the German administration in Samoa;
   • (c) Any liability arising out of the alleged deficiencies of the aforesaid transfer of the disputed land on 21 September 1901 would accrue to the Imperial Government of Germany being the alleged transferor and not to the Government of Samoa which was not responsible for any such deficiencies as it was not in existence at the time;
   • (d) Any claim by the plaintiff arising from the matters alleged above would be time barred by s.6 and/or s.9 of the Limitation Act 1975;
   • (e) Through inordinate delay in raising the matters alleged in the statement of claim, the plaintiff and/or his predecessors must have acquiesced or is otherwise estopped from bringing his present action; and
   • (f) The inordinate delay on the part of the plaintiff and/or his predecessors in bringing these proceedings against the defendant or the earlier administrations has substantially prejudiced the defendant in defending the present proceedings, for example, none of the witnesses to the events which are the subject of the plaintiff’s claim was still alive at the time of the hearing of the defendant’s strike out motion.
4. In support of its grounds to strike out the plaintiff’s second cause of action, these are some of the reasons given by the defendant:
   • (a) Immediately before Independence on 1 January 1962, the alleged access way described by the plaintiff in his statement of claim as “Apia Lane” was marked as a public road (Crown land) in the relevant survey plan prepared by the then Land and Survey Department of Western Samoa;
   • (b) On Independence Day, the said Apia Lane was vested in the State of Samoa by virtue of Article 123 of the Constitution, and became known as public land; and
   • (c) There is no interest of the plaintiff or his family recorded on the Land Register in respect of Apia Lane immediately before or since Independence Day.
5. In the affidavit of Safuta Toelau Iulio a licensed surveyor and Assistant Chief Executive Officer, Technical Services, of the Ministry of Natural Resources and the Environment (MNRE), which was filed in support of the defendant’s strike out motion, it is there shown that from the records of the MNRE, survey plan 2342 that was approved on 12 November 1961 is the latest survey plan approved before Independence for the area which included Apia Lane. Survey plan 2342 shows Apia Lane to be a public road and therefore Crown land as it was known before Independence. Survey plan 2342 also shows Apia Lane to be lying between parcel 482/84 and parcel 85 with customary land being parcel 112 to the south and Main Beach Road to the north.
6. There is also nothing in the records of the MNRE to show that Apia Lane was land belonging to the Tuiletufuga title or to show the existence of the any agreement between the Government of Samoa and the owner of the customary land being parcel 112 for the provision of Apia Lane. Furthermore, there is nothing in the records of the MNRE of any person other than the Crown during the time of the New Zealand administration or the Government of Samoa after Independence having an interest in Apia Lane.

Approach to a strike out motion

7. The relevant principles and approach to a motion to strike out a statement of claim on the ground that it discloses no reasonable cause of action has been well settled in a number of Samoan cases: see, for example, Apia Quality Meats Ltd v Westfield Holdings Ltd [2009] WSSC 1, paras [5] – [16]; Bluesky Communications v Attorney General [2007] WSSC 58; Enosa v Samoa Observer [2005] WSSC 6. This approach was conveniently stated in summary form in Slavich v Judicial Conduct Commissioner [2011] NZHC 1569 paras [17] – [19] where Andrews J said:
   • “[17] The relevant principles to be applied in considering an application to strike out a proceeding on the basis that it discloses no reasonably arguable cause of action are well settled. They were summarised by the Court of Appeal in Attorney General v Prince and Gardner [1998] 1 NZLR 262 at 267, and by the Supreme Court in Couch v Attorney General [2008] NZSC 45, [2008] 3 NZLR 725 at [33].
     • “The following principles stated in McGeehan on Procedure at [HR 15.1.02 (1)] apply:
       • “(a) Pleaded facts, whether or not admitted, are assumed to be true. This does not extend to pleaded allegations which are entirely speculative and without foundation.
       • “(b) The cause of action must be clearly untenable. It is inappropriate to strike out a claim summarily if the Court cannot be certain that it cannot succeed.
       • “(c) The jurisdiction is to be exercised sparingly and only in clear cases.
       • “(d) The jurisdiction is not excluded by the need to decide difficult questions of law, requiring extensive argument.
       • “(e) The Court should be particularly slow to strike out a claim in any developing area of the law, especially where the law is confused or developing.
   • “[18] With respect to the principle that pleaded facts are assumed to be true, the Court of Appeal in Attorney General v McVeigh [1995] 1 NZLR 558 at 566 acknowledged:
     • “ ‘... there may be a case where an essential factual allegation is so demonstrably contrary to indisputable fact that the matter ought not to be allowed to proceed further’.
   • “[19] It has been held that a proceeding is frivolous or vexatious, and therefore an abuse of process, if it is an attempt to re-litigate matters that have already been determined, or is a duplication of other proceedings. Attempts to re-litigate matters already determined are referred to as collateral attacks on judgments of another Court of competent jurisdiction. In Hunter v Chief Constable of the West Midlands Police [1981] UKHL 13; [1982] AC 529 at 541 Lord Diplock said:
     • “ ‘The abuse of process which the instant case exemplifies is the invitation of proceedings in a Court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which has been made by another Court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of correcting the decision in the Court by which it was made”
8. In relation to the relevant principles and approach to a motion to strike out a statement of claim on limitation grounds, this Court in Godinet v Chan Mow & Co Ltd [2001] WSSC 65 and Strickland Bros v Attorney General [2014] WSSC 15 adopted the approach in Johns v Johns and Holloway [2004] NZCA 42, para [2] where Tipping J said:
   • “As the case is one involving strike out, the facts upon which the Court must act are those alleged in the plaintiff’s pleadings, which must for present purposes be taken as capable of proof. Causes of action or aspects thereof should only be struck out before trial on the basis that they are statute or otherwise barred, if the defendant can establish that proposition conclusively. If there is any real doubt about the matter, the case should be allowed to go to trial where all issues of fact and law can be fully explored. This is no more than the ordinary strike out principle applied in the context of a strike out application which is based on limitation grounds”.

Background

9. Paragraphs 1 to 10 of the statement of claim which relate to the plaintiff’s first cause of action show that the present action was brought by the plaintiff on behalf of himself and all the members of the Tuiletufuga Leapai clan of the village of Apia. It was alleged that the disputed land is where the CIB (now CID) and the traffic section of the Apia police station are located and contains an area of 0a.0r.24p. It was also alleged that the disputed land is still customary land pertaining to the title Tuiletufuga of Apia.
10. The plaintiff further alleged that on 21 September 1901 the German Imperial Governor permitted one Tuiletufuga Leapai of Apia to convey the disputed land to the German Imperial Government for 1800 marks and on 21 October 1901 District Court Judge Dr Schultz confirmed the said sale. The plaintiff also alleged that at the time the sale was confirmed, only a sketch plan was prepared but not a proper survey plan.
11. It was further pleaded in the statement of claim that by virtue of the Samoa Constitution Order 1920 enacted by the New Zealand administration the disputed land was vested in the Crown free from Native title and from any estate in fee simple and became known as “Crown land”. Upon Independence, the said land was vested in Samoa free from customary title and from any estate in fee simple and became known as “public land”.
12. It was then pleaded that the aforesaid transfer of the disputed land from Tuiletufuga Leapai to the German Imperial Government and its subsequent vesting in the Crown and finally in the Government of Samoa should be declared null and void upon the following grounds:
    • (a) The procedure adopted for the transfer of the said land from Tuiletufuga Leapai to the German Imperial Government was not in accordance with the provisions of the Final Act of the Conference of Berlin on Samoa Affairs of June 4, 1889;
    • (b) The documentation evidencing the supposed contract of sale between Tuiletufuga Leapai and the German Imperial Government does not appear authentic for these reasons:
      • (i) no proper survey was done but only a sketch plan;
      • (ii) the transcript of 21 October 1901 notes Tuiletufuga agreeing to transfer his land to the “Government of Samoa” but there was no “Government of Samoa” at the time but only the German Imperial Government;
      • (iii) the sketch plan denotes the owner as the “Imperial Government” and not “Government of Samoa” to whom Tuiletufuga Leapai presumably agreed to transfer his land.
      • (iv) the signature of Tuiletufuga Leapai on the Minute of the hearing of 21 October 1901 is too refined when Tuiletufuga Leapai was known to be illiterate and cold not sign his name; and
      • (v) there is no confirmation that 1800 marks was actually paid and received by Tuiletufuga Leapai.
13. The plaintiff then sets out in his statement of claim what appears to be legal arguments claiming that no legal title passed from Tuiletufuga Leapai to the German Imperial Government. In consequence, no legal title passed from the German Imperial Government to the Crown during the time of the New Zealand administration and no legal title passed from the Crown to the Government of Samoa upon Independence. Alternatively, the plaintiff claimed that if title did pass from Tuiletufuga Leapai to the German Imperial Government, then such title was voidable and ought to be voided.
14. The plaintiff also alleged that the issue of compensation was raised with the Government of Samoa by his immediate predecessor Tuiletufuga Papalii Enele and then by the plaintiff himself after he succeeded to the title Tuiletufuga. Both were unsuccessful. So it was only relatively recent when this matter was raised by the holders of the Tuiletufuga title with the Samoan government.
15. In paras 11 to 14 of the statement of claim which relate to the second cause of action, it is there alleged that when the plaintiff’s family lands fronting on to the Main Beach Road were taken for public purposes, there was reserved to the plaintiff’s family an access way described as “Apia Lane” to provide access for the plaintiff’s family from their lands to the Main Beach Road. However, the said Apia Lane had now been extinguished by the construction of the new New Zealand High Commission on land given to it by the Samoan government.
16. The plaintiff further alleged that the extinguishing by the Samoan government of the Apia Lane was unlawful and constituted trespass to land. It also constituted violation of Article 14 of the Constitution and the provisions of the Taking of Land Act 1964 presumably with regard to payment of adequate compensation for land taking for a public purpose.

Disposition of this case

17. I do not propose to deal with all the grounds and reasons advanced by the defendant in support of its motion to strike out. I will deal with only the crucial ones. In this connection, I will deal first with the plaintiff’s first cause of action and then with his second cause of action.

(a) Plaintiff’s first cause of action

18. In my respectful view, the plaintiff’s first cause of action on trespass to land and for recovery of land is so clearly and plainly out of time that it is time barred and must therefore be struck out. It is clear from the statement of claim that the sale the plaintiff is complaining about took place on 21 September 1901 between Tuiletufuga Leapai and the German Imperial Government and was confirmed on 21 October 1901 by District Court Judge Dr. Schultz. The deficiencies alleged by the plaintiff regarding the way the said sale was carried out must have occurred prior to 21 September 1901. The plaintiff’s first cause of action in trespass to land and for recovery of land must have accrued on 21 September 1901 or at least around that time. That is more than one hundred years ago to the time the plaintiff commenced his proceedings on 4 October 2004.
19. At the time of the alleged sale in 1901, there was no classification of land in Samoa: see Alii and Faipule of Satapuala v Attorney General [2008] WSSC 88; Board of Trustees of the Congregational Christian Church of Samoa v Pouvi [2003] WSSC 4. It was not until the Samoa Constitution Order 1920 enacted by New Zealand that land in Samoa was classified into Native land, European land, and Crown land. In terms of the claim by the plaintiff, the disputed land became Native land under the Samoa Constitution Order 1920 classification because the plaintiff alleged that the sale between Tuiletufuga Leapai and the German Imperial Government was unlawful and void. On the other hand, the effect of the argument for the defendant is that the disputed land would be Crown land in terms of the Samoa Constitution Order 1920.
20. The classification of land under the Samoa Constitution Order 1920 was re-enacted in the Samoa Act 1921 which was a New Zealand statute. Subsequently, the expression “Native land” was changed to “Samoan land”. Up to the Constitution, land in Samoa was thus classified into Samoan land, European land, and Crown land. When the Constitution came into force, Article 123(2) thereof provides:
    • “(2) Subject to the provisions of clause (3), land which immediately before Independence Day is, under the provisions of the Samoa Act 1921, Samoan land, European land or Crown land shall, on and after Independence Day be held under the provisions of this Constitution as customary land, freehold land or public land, respectively”
21. I turn now to the question of limitation which was raised by the defendant in its strike out motion. It has not been possible to locate any limitation legislation in force in Samoa during the time of the German Imperial Government. However, s.359 of the Samoa Act 1921 provided:
    • “Save so far as may be otherwise provided by regulation or ordinance, the law of Samoa as to prescription and the limitation of suits and actions should be the same as that which is in force for the time being in New Zealand.”
22. It is not entirely clear to me what was the law in New Zealand in 1921 with regard to limitation of suits and actions. However, there is reference in the First Schedule of the Limitation Act 1950 (NZ) to the Limitation Act 1623 (UK) which was one of the United Kingdom enactments that used to apply to New Zealand but was repealed by the Limitation Act 1950. So I presume that it was the Limitation Act 1623 (UK) that applied in New Zealand in 1921 and therefore also applied to Samoa by reason of s.359 of the Samoa Act 1921. Unfortunately, I have not been able to find a copy of the Limitation Act 1623 (UK).
23. The Limitation Act 1950 applied to Samoa by reason of s.359 of the Samoa Act 1921. This New Zealand legislation continued to apply to Samoa until 1975 when its application to Samoa was repealed by our own Limitation Act 1975.
24. Section 34 of the Limitation Act 1950 (NZ), as far as relevant, provided:
    • “Nothing in this Act shall –

“(a) Enable any action to be brought which has been barred before the commencement of this Act by any enactment repealed or amended by this Act or ceasing to have effect by virtue of this Act, except in so far as the cause of action or right of action may be revived by any acknowledgement or part payment made in accordance with the provisions of this Act”.

25. What this means is that if any action was barred before the commencement of the Limitation Act 1950 (NZ) by any enactment repealed or amended by the 1950 Act or ceasing to have effect by virtue of the 1950 Act, then such an action cannot be brought again. However, the cause of action or right of action may be revived by an acknowledgment or part payment made in accordance with the provisions of the 1950 Act.
26. Section 31 of our Limitation Act 1975 is in identical terms to s.34 of the Limitation Act 1950 (NZ). It follows that in terms of s.31, if an action was already barred under the provisions of its predecessor the Limitation Act 1950 (NZ), then such an action cannot be brought again. However, such an action may be revived by an acknowledgment or part payment in terms of the 1975 Act.
27. As for the limitation period for an action on tort, section 4(1) of the Limitation Act 1950 (NZ) provided that an action founded on tort shall not be brought after the expiration of 6 years from the date on which the cause of action accrued. Trespass to land is, of course, a tort. The plaintiff’s first cause of action is partly for trespass to land and partly for recovery of land.
28. Section 6(1) (a) of our Limitation Act 1975 provides a limitation period of 6 years for actions founded on tort and is in similar terms to s.4(1) (a) of the New Zealand Limitation Act 1950. The limitation period for the plaintiff’s action founded on the tort of trespass to land would therefore be 6 years.
29. Section 7 of the Limitation Act 1950 (NZ) which is relevant to the plaintiff’s cause of action for recovery of land relevantly provided:
    • “(1) No action shall be brought by the Crown to recover any land after the expiration of 60 years from the date on which the right of action accrued to the Crown or some person through whom the Crown claims.
    • “(2) No action shall be brought by any other person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him or to some person through whom he claims”.
30. Section 9 of our Limitation Act 1975 which provides the limitation periods for actions to recover land is almost identical in terms to s.7 of the New Zealand legislation.
31. There is nothing that could be found to show whether there were any limitation periods for bringing any suits or actions during the time of the German administration to the time New Zealand took over Samoa in 1914. It would appear that the Limitation Act 1623 (UK) which applied to New Zealand also applied to Samoa by reason of s.359 of the Samoa Act 1921. But as a copy of the Limitation Act 1623 (UK) could not be found, one does not know what was in that legislation.
32. Be that as it may, I am of the clear view that the plaintiff’s first cause of action for trespass to land and for recovery of land was barred under ss.4(1) (a) and 7(2) of the Limitation Act 1950 (NZ) which applied to Samoa until its application to Samoa was repealed by the Limitation Act 1975. This is because of the fact that the sale of land that the plaintiff is complaining about must have occurred about 21 September 1901 which was the date of the sale. If that was not so, then perhaps the plaintiff’s first cause of action started to accrue on 21 October 1901 when the said sale was confirmed by District Court Judge Dr. Schultz. Whichever of the two dates is taken as the starting point when the plaintiff’s first cause of action started to accrue, it is clear that the plaintiff’s first cause of action must have become time barred under ss.4(1) and 7(2) of the Limitation Act 1950 (NZ) if it was not already barred under the Limitation Act 1623 (UK).
33. In terms of s.31 of our Limitation Act 1975 an action that was already barred under the provisions of its predecessor the Limitation Act 1950 (NZ) cannot be brought again unless there was an acknowledgment or part payment in terms of the Act. There was no such acknowledgement or part payment in this case. It follows that the plaintiff’s first cause of action is already time barred and cannot be revived. It is therefore struck out in its entirety.

(b) Plaintiff’s second cause of action

34. The plaintiff’s second cause of action, as earlier mentioned, is for alleged unlawful taking of land without compensation and trespass to land.
35. As also earlier pointed out in para 15 of this judgment, what the plaintiff was saying here was that when his family’s lands fronting on to the Main Beach Road were taken for public purposes, there was reserved to the plaintiff’s family an access way described as “Apia Lane” to provide access for the plaintiff’s family from their lands to the Main Beach Road. However, the said Apia Lane had now been extinguished by the construction of the new New Zealand High Commission on land give to it by the Samoan government. There is nothing else to support the plaintiff’s second cause of action except these assertions.
36. These factual allegations by the plaintiff which form the core of his second cause of action are strongly denied and contradicted by the defendant in its strike out motion. I have already referred in para 5 of this judgment to the sworn affidavit of Safuta Toelau Iulio a licensed surveyor and Assistant Chief Executive Officer, Technical Services, of the MNRE. Safuta deposed in his affidavit that the records of the MNRE show that survey plan 2342 which was approved on 12 November 1961 is the latest survey plan approved before Independence for the area of land which included Apia Lane. And survey plan 2342 shows Apia Lane to be a public land and therefore Crown land as it was known before Independence. In other words, Apia Lane being Crown land it was not Native land or customary land pertaining to the title Tuiletufuga as claimed by the plaintiff.
37. As earlier pointed out in para 7 of this judgment, for the purpose of a strike out motion facts which are pleaded in a statement of claim in support of a cause of action are assumed to be correct and capable of proof. However, the New Zealand Court of Appeal in Attorney v McVeigh [1995] 1 NZLR 558 at 566 acknowledged:
    • “ ... there may be a case where an essential factual allegation is so demonstrably contrary to indisputable fact that the matter ought not to be allowed to proceed further”
38. The approach in Attorney General v McVeigh [1995] 1 NZLR 558, 566, was re-affirmed by the New Zealand Court of Appeal in Pharmacy Care Systems Ltd v Attorney General (2001) 15 PRNZ 463, 472. Both these cases were cited with approval by this Court in Apia Quality Meats Ltd v Westfield Holdings Ltd [2009] WSSC 1.
39. In view of the sworn affidavit of Safuta and the statement of principle in Attorney General v McVeigh [1995] 1NZLR 558, 566, the core allegation by the plaintiff that Apia Lane was reserved to this family as an access way is so demonstrably contrary to the information contained in survey plan 2345 kept in the custody of the MNRE that I cannot assume the plaintiff’s core allegation to be correct and capable of proof. I disbelieve it given the affidavit of Safuta. It follows that the plaintiff’s second cause of action ought not to be allowed to proceed further. It is therefore struck out.

Conclusions

40. (a) The plaintiff’s first cause of action is time barred and is therefore struck out.

(b) The plaintiff’s second cause of action is factually incorrect and incapable of proof and is therefore also struck out.

41. The parties to file memorandum as to costs in 7 days if agreement cannot be reached.

Patu F M Sapolu
Temporary Justice of the Supreme Court and
Former Chief Justice