IN THE COURT OF APPEAL OF SAMOA
HELD AT APIA

CA 04/08

IN THE MATTER:
of the Appeal under the Judicature Ordinance 1961 & Part III of the Court of Appeal Rules 1961.

BETWEEN:

SALU SIA’AGA, LELEISI’UAO OTINERU, SAVEA ‘AU, LEMOA ESEKA,
LATU ASO, MATA’AFA TU’UUTA, MA’I MEKI, AUTAGAVAIA UIESE and
TOLUONO PENE, TOLUONO FETI, TOLUONO MAMERE, TOLUONO HAN,
TOLUONO NOME, being true heirs of TOLUONO MATENA LEAL’IFANO,
all Matais; appearing personally and in their capacity as representatives of Alii & Faipule of Vailoa,
Palauli, under Rule 36 of the Supreme Court (Civil Procedure Rules) 1981.
Appellants

AND:

O.F. NELSON PROPERTIES LIMITED,
a company duly registered & having its registered office at Apia,
and carrying on business at Palauli, Savaii.
Respondent

Coram: 	The Honourable Justice Baragwanath
The Honourable Justice Slicer
The Honourable Justice Fisher

Hearing: 	16 - 17 September 2008

Counsel:	LT Malifa for Appellants
TK Enari for Respondent 
R Wendt Assistant Attorney General

Judgment:	19 September 2008 

JUDGMENT OF THE COURT

The dispute

1.	This appeal concerns competing claims to an area of land at Vailoa in Palauli near the southern shore of Savaii, comprising Parcels 9 (574a 1r 32p), 1 (363a 3r 38p), 12 (60a) and 13 (40a), with a total area of 1154a 3r 30p. Fundamental to the case are ss 101-2 of the Constitution of Samoa. By the former all land is customary land, freehold land or public land. The latter prohibits the alienation of customary land. 

2.	In proceedings before the Supreme Court the respondent as plaintiff alleged against the appellants as defendants unlawful trespass to what the respondent claims is freehold land in its ownership. The appellants by contrast assert that the land is customary land held and protected by them and their forebears under their pulega faalenu’u (village authority) and pulega fa’amatai (matai authority). They claim that the land was never lawfully alienated so as to become freehold land and therefore the respondent has no valid title or right to ownership. They rely on the fact that under the Deeds System of land registration adopted by (now) the Land Registration Act 1992/1993, in a form more familiar to those versed in English law than to Torrens practitioners in New Zealand and Australia, a claimant may challenge an asserted title by reference to invalidity of prior transactions; registration is not an ultimate root of title. They plead in the alternative that there was no proper consideration paid for the land and that the taking was tainted by fraud, mistake or illegality; and in the further alternative that at most only 563a confirmed by decision of the German Imperial Court is claimable by the respondent. They finally plead that the respondent’s claim to Parcel 9 is barred by s 9(2) of the Limitation Act 1975. There is in addition a procedural submission that the directors of the respondent should have brought the proceedings in their own name and not of that of the Company.

The course of the proceedings

3.	In the Supreme Court the parties agreed that there should be an initial determination of the respondent’s claim that it had secured good title to the land. Other issues, including limitation and damages, were deferred. 

4.	Sapolu CJ concluded that the respondent had secured good title to the land. The appellants challenge that conclusion on appeal. Because of the importance of the issues, which potentially concern parties other than those before the Court, we invited the Attorney- General to consider whether to participate in the hearing. We express our appreciation to the Attorney and to Ms Wendt, for whose impartial but illuminating guidance as to the legal history of Samoa we are indebted.

The six eras of Samoan constitutional law

5.	The argument extended over six eras in Samoan constitutional law. It spanned:

Indigenous rule

•	the law of the period of indigenous rule prior to 1881 when the first Government of Samoa was recognised under the kingship of Malietoa. In the course of the hearing we paid tribute to the careful factual and legal research in numerous jurisdictions performed by Mr Malifa whose argument as to the status of the law of the first era we accept. In brief summary, it is now recognised that what was in the past sometimes called the "custom" of indigenous people in contradistinction to law is to be recognised as true law. The long line of authorities cited by Mr Malifa established beyond doubt that, in point both of public international law and of the developing concept of international conflict of laws, which concerns private international law, courts of other jurisdictions will attribute the status of law to custom which has been duly proved to serve the practical function of law in indigenous societies. The consequence must follow that the courts of Samoa itself, including this Court, will attribute similar status to such custom. That was indeed the effect of the decision of the Supreme Court of New Zealand in Samoan Public Trustee v Collins [1960-1969] WSLR 52, a decision cited by Ms Wendt upon a case stated under s 82 of the Samoa Act 1921, decided on the eve of Samoan independence, as to the nature of the law in force at the time of a disputed marriage in 1870. The true question is one of fact: what was the relevant custom? On that topic the arguments of the parties conflicted. The events of this era included: 1872 when, the respondents claim, a paramount matai Tualau Siole sold part of the land to a missionary, Frank Wilson (to whom with his family members, among whom there were various transactions recounted by the Chief Justice, we refer as "Wilson")

Government of Malietoa

•	Relevant events during this period were:

-	April 1886 when that transaction was confirmed by Tualau Saumani;

- December 1886 when the transaction was further confirmed by another paramount matai, Leleisiuao Peni.

6. 	The respondent contended that the processes that took place before and during the kingship of Malietoa were effective in accordance with the customs of the people of Palauli to confer good title on their predecessors and that Tualau Siale, Tualau Saumani and Leleisiuao Peni must be treated as having had authority to make and confirm the transaction to Wilson. The appellants relied on statements of principle in leading cases, notably by Brennan J in Mabo v Queensland (No 2) (1995) 175 CLR 1 at 58-9:

Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as a matter of fact by reference to these laws and customs …. the rights and interests which constitute a native title can be possessed only by the indigenous inhabitants and their descendants. Native title, though recognized by the common law, is not an institution of the common law and is not alienable by the common law. Its alienation is dependent on the laws from which it is derived. If alienation of a right or interest in land is a mere for by law enforced by a sovereign power, there is no machinery which can enforce the rights of the alienee. The common law cannot enforce as a proprietary interest the rights of a putative alienee whose title is not created either under a law which was enforceable against the putative alien or at the time of alienation and thereafter until the change of sovereignty or under the common law.

7. 	They also referred to affidavits by matai experienced in the customs and traditions of Palauli, which included the statement:

By our culture, customs and traditions, all land in Vailoa, Palauli, then and even now, were and are customary land held by and in accordance with those customs and traditions, our agaifanua ma aganu’u. By that customary land tenure, lands were not and could not be alienated. And it was not owned individually, or was subject to ownership of any sort. Indeed, we know of no authority outside of our village and polity’s pulega fa’amalumalu and pulega fa’amatai upon which customary land were allowed to be alienated. And more so was that customary land was never disposable to foreigners and outsiders like the Wilsons and the Moors. And for such large tracts of land, as in this case totalling roughly 1154 acres 3 roods and 30 perches, it is inconceivable that one matai alone and by himself, in this case Tualaulelei Siale, had authority to alienate and sole these lands. And even if he did have such authority, we are advised that by our customs and traditions, we nevertheless retained usufructuary right and title to those lands.

Our cultural right and customary authority and title to our lands follows no one matai in whatever capacity to have pule or authority alone and by that matai to otherwise deal with land than for the welfare and benefit of the community, in this case, the people of Vailoa, Palauli. That pule and authority is collective and ownership of those customary land is communal. And our rights to those lands have passed down from our forefathers to us up to now.

For the record we declare now under oath that Tualaulelei Siale did not have paramount authority, separate and distinct from title Lealiifanovalevale, or other prominent title in our village and polity. As we have mentioned, that authority, like similar chiefly authority in all of Samoa, is, in respect of customary land, trusteeship that holds no absolute pule, but in accordance only with and accountable to the collective authority of the Alii & Faipule. It follows there is no authority to alienate, sell and or divest with our collective right to these lands. In fact, we know it to be a fundamental principle of our cultural title to these customary lands that vast tracts of them under our pulega fa’amalumalu and pulega fa’amatai; as the 1,154 acres, 3 rods and 30 perches in this case, are not disposable by sale through authority of one matai, whether of Tualaulelei or any other.

8. 	As against that, the respondent relies on the following passage from the judgment of the learned Chief Justice who has brought his own formidable authority to bear on this issue;

[60] … It is submitted by counsel for the defendants that Tualau Siale did not have the sole pule or authority to sell the land to Wilson; Tualau Siale also had to obtain the approval or authority of the Alii and Faipule of Vailoa, Palauli, who held the pule faamalumalu over all the lands of the village. However, no evidence was produced in these proceedings to show that in 1872 a matai who wished to sell land pertaining to his matai title was required by Samoan custom and usage to obtain the prior approval of the Alii and Faipule of his village. Given the large number of land transactions that took place between Samoans and foreigners in the past, one would have thought that if there was actually such a customary requirement as submitted by counsel for the defendants, then there should be evidence of it. But no such evidence was produced.

[61]… In my experience as President of the Land and Titles Court from 1992 to 2005, and apart from the fact that I am also a Samoan matai, land in Samoa which is now called customary land is land held under a matai title. Every customary land in a village is held under a matai title which has the pule or authority over that land. If the holder of a matai title wants to alienate by way of lease or licence land to which his matai title pertains, he does not have to seek and obtain the prior approval of the Alii and Faipule of his village. There is no such customary requirement. If that was the same position in Samoa in 1872 when Tualau Siale sold the land to Wilson, then, with respect, the submission by counsel for the defendants that Tualau Siale should have had the prior approval of the Alii and Faipule of Vailoa, Palauli, cannot be right. But as I have said, there is no evidence to show that the position asserted for the defendants was Samoan custom in 1872.

[62]… From the "faalupega" of Vailoa, Palauli, provided by counsel for the defendants in his written submissions, it is clear that Tualau or Tualaulelei and Lelei or Leleisiuao are right at the very top of the faalupega of Vailoa. It is evidence of the very high rank of those titles in the village. This is also well-known to many Samoans. Autagavaia, as mentioned earlier, is also a high ranking orator of the village. All this evidence makes it difficult to accept the submission for the defendants that Tualau Siale did not have the sole authority to sell the land but should have obtained the prior approval of the Alii and Faipule of the village. 

Condominium

•	the law of the period of the British/German/US condominium created by the Final Act of the Conference of the Affairs of Samoa signed at Berlin in 1889, which, subject to the assent of the Samoan Government, established a Land Commission, a Supreme Court and the office of Chief Justice with responsibilities including the adjustment and settlement of all claims by aliens to land in Samoa. It received the assent of King Malietoa on 19 April 1890. 

German Protectorate

•	the law of the period of the German Protectorate from 1 March 1900 which continued, despite the occupation by New Zealand troops in 1914, until the Samoa Constitution Order (New Zealand) which came into force on 1 May 1920. During that period:

-	Wilson made a land claim for 970a
-	The Land Commission confirmed the claim in respect of an area of 1500a
-	Vavauoti, an orator of Palauli, lodged an objection on behalf of the people of Palauli
-	Upon investigation by the Land Commission it was found that the land claimed by Wilson amounted to 6000a for which he had paid $1500, which Vavauoti claimed was inadequate
-	A compromise was agreed between the parties and endorsed by the Land Commission that 1500a to be plotted on a map be confirmed to Wilson and the balance to Vavauoti on behalf of the Faleo of Palauli. His objection was accordingly withdrawn.
-	The Land Commission reported to the Chief Justice of the Supreme Court confirming the claim on such basis.
-	Wilson gave to a German company DHPG 350a of the 1500a confirmed to settle a debt owed to that company, leaving Wilson with a balance of 1150a. 
-	A survey established that the net amount of the land confirmed by the Land Commission and held by Wilson was only 563a.
-	The Supreme Court on 5 March 1897 issued to Wilson Court Grant 721 for the 563a. 
-	On 17 August 1901 Wilson sold the land to Mr H G Moors. Differences arose with the people of Vailoa, Palauli as Mr Moors started to assert his rights of ownership to the 1150a.
-	The differences resulted in proceedings between Mr Moors and the Alii and Faipule of Palauli heard in the Imperial District Court on 21 November 1905, 23 January and 17 July 1906.
-	On 27 July 1906 the Imperial District Court, comprising the Imperial District Judge, Dr Imhoff and two assessors, delivered its decision. It found that it was because the western boundary of the land bought by Wilson from Tualau Siale had been wrongly surveyed only 563a was established in Court Grant 721. Wilson had failed within a reasonable time to claim the balance of the 1150a remaining after transfer of the 350a to DHPG and as a result lost his right to question Court Grant 721 as he would otherwise have been entitled to do. So Mr Moors was entitled only to the 563a.
-	Two documents in the Samoan language cited by the Chief Justice assist the respondent. One, which is undated was signed by Lelei, the then leader of the Alii and Faipule of Palauli. It says that "we" have accepted the Court’s decision regarding the 563a given to Mr Moors. By the other, dated 16 October 1906, the Alii and Faipule wrote directly to Judge Schultz to say that they had not interfered with the Court’s decision which awarded 563a to Mr Moors.
-	Mr Moors appealed against that decision to the Supreme Court. But the hearing did not proceed because the appeal was settled by agreement between Mr Moors and the Alii and Faipule of Palauli. 
-	The terms of the agreement were recorded on 18 August 1907 and 20 March 1912 before District Judge Dr Sohubert as being between Mr Moors, the Treasury of the Protectorate of Samoa, and Lelei, Tolo, Laupue and Alipia as representatives of the Alii and Faipule of Palauli. It was agreed that in addition to the 563a Moors should receive a further adjoining 587a, making in all 1150a. But 200a would be removed from the 563a and transferred to the Treasury for the people of Palauli. So Mr Moors’ net area was 950a.

New Zealand trusteeship

•	the period of the New Zealand trusteeship.

-	On 14 December 1921 Mr Moors gifted the lands to his daughter Rosabel Nelson.

-	On 26 February 1923 Ms Nelson sold the land as fee simple to OF Nelson & Company Limited. 

Sovereign State of Samoa

•	the current era of the sovereign state of Samoa . 

-	in 1968 OF Nelson & Company Limited acquired a further 100 acres of adjoining land in two transactions, one for 60a and another for 40a from a Mr Gray.

-	On 22 March 1994 OF Nelson & Company Ltd sold the fee simple to the respondent OF Nelson Properties Limited.

Discussion

Classification of land

9.	The learned Chief Justice referred to the Final Act of the Conference of Berlin which contained recitals that the States Parties had adopted a Declaration respecting titles to land in Samoa, restricting their disposition by Samoan people, providing for the investigation of claims thereto and for the registration of valid titles. By Article IV it stated:

Section 1. In order that the native Samoans may keep their lands for cultivation by themselves and their children after them, it is declared that all future alienation of lands in the Islands of Samoa shall be prohibited [subject to certain limited exceptions]

10.	 The Chief Justice determined that it was not until the Samoa Constitution Order 1920 (SCO) enacted by the New Zealand Government that a classification was made of land in Samoa. Section 258 classified all land into three categories: Native land, which was later called Samoan land, European land and Crown land, which correspond to the later categories customary land, freehold land and public land described in the Constitution. 

11.	He cited s 267 of the SCO which explains ownership of European land:

All land in Samoa which at the commencement of this Order is owned by any person or body corporate (other than land owned by Samoans by Native title) shall on the commencement of this Order be deemed to be held by that person or body corporate for an estate in fee simple as by grant from the Crown, subject, however, to all encumbrances or other interests less than ownership which are the commencement of this Order vested in any other person or body corporate, and all such land is hereby declared to be European land accordingly.

12. 	 Sections 258 and 267 were later re-enacted as ss 268 and 277 of the Samoa Act 1921 of the New Zealand Parliament which remained in force until the enactment of the Constitution.

13. We respectfully endorse the conclusion of the learned Chief Justice that the expression "customary land" only came into use under the Constitution, albeit the same concept had been recognised since 1920 in the expressions "Native land" and "Samoan land". Importantly, as this Court illustrated in Taamale v Attorney General CA 2/95B 18 August 1995, the Constitution’s recognition by s 111 of Samoan custom and usage and also the English common law, insofar as not excluded by any other law in force in Samoa, requires a blending of these sources of law in a manner that is most in keeping with the values of the people and institutions of Samoa. Among them, as is recognised by Article 14 of the Constitution, is the stability of established property rights. It would be inconsistent both with that provision and with the common law presumption against retrospective effect for the statutory inalienability of "Native land", "Samoan land" and "customary land", contemplated by the Final Berlin Act and legislated with effect from 1920, to be read back into the antecedent law. Indeed if all land had been inalienable in Samoa from the beginning of Mr Malifa’s helpful chronology, which began in 1100 AD with the collapse of the Kingdom of Tuimanu’a which led to the years of Samoan rule by kings and kingship, the freehold land recognised by the Constitution could never have existed.

The German determination decisive 

14. 	That is not to provide any answer to what that antecedent law itself provided. As we have said, what was the custom is to be treated as a question of fact. But we find it unnecessary to explore in this case the issues concerning indigenous law on which expert opinion is deeply divided. Some of them, such as the scope of authority of the matai, may fall for consideration in Vaai v Ionatana [CA 8/07 19 September 2008], Whatever the answer to the challenge to the purported transaction by Tualau Siale, we can see no answer to the respondent’s argument that by the transactions of 18 August 1907 and 20 March 1912 before District Judge Dr Sohubert, between Mr Moors, the Treasury of the Protectorate of Samoa, and Lelei, Tolo, Laupue and Alipia as representatives of the Alii and Faipule of Palauli, it was agreed that Mr Moors’s claim to the 563a, less the 200a of the present Lot 8, should be confirmed. It was further agreed that he should receive a further adjoining 587a, making in all 950a. There was a contention that Mr Wilson had received, and alternatively claimed, a matai title which was disputed by the appellants. But any argument that he had received the land as a matai and not as European is also met by the participation of the representatives of the Alii and Faipule in the agreed settlement of the dispute before Judge Sohubert.

15. Mr Enari took us through the German plans which had been before the Chief Justice and related them to the modern aerial photographs on which the Parcels in dispute are marked. One, P4, depicts the position of the 563 and 587a blocks. Together they form an approximate rectangle, tilted somewhat to the west. Its southern boundary, about 900m in length, is formed by the main coast road between Mosula and Vailoa. Its western boundary is some five km in length and contains a slight indentation to the east at the southern end. The northern boundary is approximately 2000m long. The eastern boundary is about the same length as the western, with a very slight bend to the west above the junction between the northern and southern blocks and a small addition to the east at the southern end. The rectangle is bisected by an east-west division between the 587a block to the north and the 563a block to the south. The aerial photographs show that the 200a deducted from the 563a and transferred to the people of Palauli was of what is now Parcel 8, which had comprised the south-western portion of the 563a.

16. The areas in dispute, Parcels 9, 13, 12 and 1, are respectively the northern portion of the 563/587a blocks and three blocks of 40a, 60a and 116a, all adjoining the eastern boundary of the 563/587a blocks. The 40 and 60a blocks are the land bought by the respondent from Mr Gray in 1968; the evidence did not establish the source of Parcel 1 which runs south from the southern boundary of Parcel 12 to a point across and just to the south of the road.

17. 	The whole of Parcel 9 was the subject of the transactions of 18 August 1907 and 20 March 1912 before District Judge Dr Sohubert, between Mr Moors, the Treasury of the Protectorate of Samoa, and Lelei, Tolo, Laupue and Alipia as representatives of the Alii and Faipule of Palauli. In Mabo Brennan J further stated:

Sovereignty [in the Samoan situation, colonialisation] carries the power to create and to extinguish private rights and interests in land within the interests in land that may have been indefeasible under the old regime become liable to extinction by exercise of the new sovereign (i.e. colonial) power. The sovereign power may or may not be exercised with solicitude for the welfare of indigenous inhabitants…

However, the exercise of a power to extinguish native title must reveal a clear and plain intention to do so, whether the action be taken by the Legislature or by the Executive. This requirement which flows from the seriousness of the consequences to indigenous inhabitants of extinguishing their traditional rights and interests in land, has been repeatedly emphasized by courts dealing with the extinguishing of the native title of Indian bands in North America. That approach has been followed in New Zealand in Te Weehi v Regional Fisheries Officer [1986] 1 NZLR 680 (subsequently applied in cases such as Proprietors of Parininihi v Ngaruahine Iwi [2004] 2 NZLR 201). It is patently the right rule…

18. 	 In Ali’i and Faipule of Siumu District v Attorney General Supreme Court of Samoa 30 August 2007 Nelson J, in a thoughtful judgment, raised a question at p 33 whether the Berlin Act was properly assented to by the Samoan Government of the day and thus properly made part of Samoan law, which he said could only be resolved by a full and substantive hearing. The present appeal follows such a hearing at which the learned Chief Justice accepted the validity of the German regime and the authority of the German courts. The Assistant Attorney- General submitted that the Berlin Act was valid law and that the German courts had authority to confirm valid title.

19. We are wholly satisfied that the transactions before the German courts, giving effect to agreement by the Alii and Faipule, provide a definitive answer. As Professor FM Brookfield has demonstrated in his text "Waitangi and Indigenous Rights: Revolution, Law & Legitimation" (Auckland University Press 2006), sovereignty in law is ultimately a matter of political fact which the courts, by recognising it, will accept in point of law. The Government of Samoa having accepted the validity of the German regime, and there being no countervailing evidence to refute what is well known as a matter of historical fact, it is the duty of the judiciary also to confirm such validity, as we must do.

20. 	 Mr Malifa sought to challenge the decisions of the German courts as tainted by bias and cited the leading judgment in R v Bow Street Magistrate, ex parte Pinochet Ugarte (No.2) [2000] 1 AC 119 (HL). In that case the House of Lords set aside its earlier decision on the ground that one of its members had been so closely linked to one of the parties that there was an appearance of injustice. The case demonstrates the great importance of the courts’ always acting in such a manner as to maintain public confidents. But the criticisms made were limited to communication by Mr Moors to a judge other than Judge Dr Sohubert, namely Judge Schulz who was also acting Governor. The critical transactions which Judge Sohubert endorsed were ones to which the Alii and Faipule were party and made with their consent. The utmost respect in which this Court holds the present generation of Alii and Faipule is owed equally to their predecessors. There is simply no evidence of any impropriety in relation to those transactions. At this point, almost a century later, this court must apply the principle omnia praesumuntur rite esse acta; all things are presumed to have been duly done. We accept as a valid root of title the grant by the representative of the people formally recorded by the representatives of the regime then exercising legal authority. It follows in our judgment that the transaction endorsed by Judge Dr Sohubert is now unchallengeable.

Conclusion

21.	That conclusion entails a determination that the land in Parcel 9 was duly secured by the respondent which obtained a good title, subject to the defence of limitation which has yet to be tried.

22.	In the case of Parcel 12 and 13, there is no evidence that Mr Gray did not possess valid title which he then passed on to the respondent. Again it has secured good title, subject to the limitation defence.

23.	In the case of Parcel 1, we can find no relevant evidence in the record before us. Nor was it dealt with specifically in the judgment of the learned Chief Justice. That topic is referred back to the Supreme Court for determination.

The company law point

24.	We mention finally the appellant’s procedural submission that the terms of Article 19 (j) of the respondents’ Articles of Association required the proceedings in the name of the directors rather than in that of the company. The Articles empower the directors; 
To commence and carry on or defend, and to abandon or compromise any legal proceedings whatsoever by against the company ….

25.	That is however a common form provision as to the powers of directors. It does not limit any way the power of the company as a distinct legal person to sue and be sued in its own name as well as to exercise all the other functions of an incorporated company contemplated in section 27 (3) of the Companies Act 1955. But because a company can act only through the attribution to it of the conduct of natural persons, here the directors, the Articles have given them the authority to cause it to perform the legal act of bringing or defending proceedings. 

Result

26.	The appeal is therefore dismissed. Given the constitutional dimension of this litigation we reserve to the Chief Justice the issue of costs in this court as well as in the Supreme Court following its conclusion. 

Honourable Justice Baragwanath
Honourable Justice Slicer
Honourable Justice Fisher