IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

C.A. 06/10

BETWEEN:

ALI'I AND FAIPULE OF SIUMU DISTRICT
Appellants

AND:

THE ATTORNEY GENERAL OF SAMOA,
being sued on behalf of the Government of Samoa
Respondent

Coram: Honourable Justice Baragwanath
Honourable Justice Slicer
Honourable Justice Fisher

Counsel: HC Keyte QC and O Woodroffe for appellants
P Bednall and K Seuseu for respondent

Hearing: 21 September, 2010
Judgment: 24 September, 2010

JUDGMENT OF THE COURT

A.	The appeal is dismissed.

B.	Costs are reserved. Counsel may file submissions, the Attorney within 14 days and the appellant within a further 14 days. 

REASONS FOR DECISION

The dispute and the result

1	The appellants challenge the claim by the Government of Samoa to title to certain lands at Siumu and Safata on the Samoan island of Upolu. The Government relies on letters patent of 7 March 1896 and 12 May 1897, by which the then Chief Justice of the Supreme Court of Samoa, Henry C. Ide CJ, purported to declare under Article IV of the Final Act of the Conference of Berlin on Samoan Affairs of 14 June 1889 (the Berlin Act) that the lands were the property of certain Europeans. The Government title is said to derive from the declarations of the former Chief Justice. 

2	The appeal is from a decision of Nelson J who rejected the appellants' contention that it is arguable that the former Chief Justice lacked legal authority to make such declarations and struck out their claim. They assert that they may be able to prove that the Berlin Act never became part of the law of Samoa because King Malietoa had no authority to grant the assent of Samoa to the Berlin Act. It would follow that the purported appointment of the former Chief Justice under that Act was a nullity and so are his letters patent. So they contend that they should be permitted to take their claim to trial.

3	The Attorney makes two submissions. The first is that in Sia'aga v OF Nelson Properties Ltd [2008] WSCA 14 this Court has already determined the present issue in his favour. The second is that the appellants' case is not arguable. We have concluded that both the Attorney's submissions are correct.

The Berlin Act

4	In Sia'aga this Court recounted the six eras in the Samoan constitutional law. Following the period of indigenous rule, in 1881 the first Government of Samoa was recognised under the kingship of Malietoa. On 19 April 1890, King Malietoa gave his assent to the Berlin Act. The present issue concerns its legal effect during the period until 1 March 1900 when the German Protectorate commenced. It was during that period that the relevant letters patent were signed.

5	The Berlin Act was initially executed by plenipotentiaries for the Queen of England, the Emperor of Germany and the President of the United States of America. It provided for the establishment of a Supreme Court with jurisdiction in respect of all civil suits concerning real property situated in Samoa and all rights affecting the same Art III ss 1 and 9(1) and for the appointment of a Chief Justice learned in law and equity, of mature years and of good repute for his sense of honour, impartiality and justice (s2). Importantly, by s2:

His decision upon questions within his jurisdiction shall be final.

6	The Berlin Act provided that all future alienations of lands in Samoa to the citizens or subjects of foreign countries were prohibited apart from certain leases (Art IV s1). It provided for the establishment of Commissioners to adjust and settle all (existing) claims by aliens of titles to land (s2). The Commission was to report to the Court whether the alleged title should be recognised and registered or rejected. The Court was required to:

…make final decisions thereon in writing which shall be entered on its record.
 
7	The letters patent in respect of the lands the subject of this appeal have the appearance of being just such final decisions. But in seeking to challenge at trial the basic proposition that the Berlin Act became law in Samoa the appellants assert that neither the appointment of Ide CJ nor his letters patent have any legal effect.

8	They point to the language of Art II recording the view of the Plenipotentiaries of the United Kingdom, Germany and the United States that:

…the consent of the Samoan Government is requisite to the validity of the stipulations hereinafter contained
 
and that:

…the three Powers mutually agree to request the assent of the Samoan Government to the same, which, when given, shall be certified in writing…

The Berlin Act concluded with the statement:

The assent to this General Act shall be attested by a certificate thereof signed by the King namely Malietoa Laupepa, referred to in Art 1 whom the three Powers undertook to recognise.

9	It is not disputed that Malietoa in fact signed the necessary certificate, on 19 April 1890. According to the summary of this Court in Sia'aga v OF Nelson Properties Ltd at 8 the third era of Samoan constitutional law was:

Condominium 

•	[T]he law of the British/German/US condominium created by the Final Act of the Conference of the Affairs of Samoa signed at Berlin in 1899, 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...

10	But the appellant seeks to argue that, whatever the Plenipotentiaries of the three Powers may have agreed, that could have no effect in Samoa unless lawfully confirmed by the Samoan government. They wish to challenge the authority in terms of the law of Samoa of the King acting alone to bind the Government; that is a matter for the law of Samoa, which could not be affected by anything agreed by three foreign states. Unless the Berlin Act was adopted by Samoa in terms of its own law it could not have effect here and no purported appointment of a Chief Justice or purported issue of letters patent could have legal effect. 

The other evidence

11	The appellants filed an affidavit exhibiting documents held in the National Archives of New Zealand which on the outbreak of the First World War had taken over control of Samoa from the German Protectorate and later assumed trusteeship until Samoan independence in 1962. One, headed "Laws of the Samoan Government 1880" bore the sub-heading "Laws made by the King and Government of Samoa" which the appellants argued evidenced a distinction between the two suggestive of the performance of separate functions and of the Government's being an entity distinct from the King. Another is a "Treaty of Friendship" dated 28 August 1879, expressed to be made between "Her Majesty the Queen of Great Britain and Ireland" and "the King and Government (Malo) [the Samoan term for government] of Samoa." It recorded as Plenipotentiaries for the Queen two senior diplomats and for "the King and Government (Malo) of Samoa "the High Chief Malietoa Laupepa and the High Chief Saga". Malietoa was of course the King. So the appellants submitted that the document demonstrates the need for a Samoan representative other than the King to participate in order to bind the Government. No doubt a further possibility is that the King considered it appropriate to match the two British representatives with a similar number for Samoa. The appellants produced as well a letter dated 20 February 1892 from Malietoa to the Chief Justice expressing concern:

…that the Lands Commissioners are assuming to do the work of the Chief Justice. They not only examine foreigners' titles to land, but they judge them, wishing to finally decide them…Samoa cannot accept the Judgments of the Land Commissioners. They are all strangers to us, and in no way connected with the country, there being no Samoan Commissioners.

They submitted that the letter shows a rejection by the King of the Berlin Act. 

Discussion

12	We do not accept the latter submission. What the King was doing was appealing to the Chief Justice to exercise his authority as Chief Justice to put right concerns about the performance of the Commissioners. Indeed the letter is evidence supportive of the Attorney's position: that the King is acknowledging the role and status of the Chief Justice appointed under the Berlin Act; if the Chief Justice was accepted by the King for that purpose it is difficult to see how he could lack standing, in Samoan eyes, as signatory of the letters patent in this case.

13	The former submission – that the first and second documents evidence need for a Samoan representative other than the King to participate in order to bind the Government - was supported by the argument that on a strike-out motion the Court will assume that a plaintiff's pleading may be factually correct and so allow it to stand until the contrary is proved by the opponent at trial.

14	We have reservations as to the application of the latter principle in a constitutional case such as this. The judiciary are deemed to be familiar with the laws of the state in which they sit and to take judicial notice of them; to the extent they lack such knowledge, as is sometimes the case with expatriate judges, they must take care with the assistance of counsel to educate themselves in such matters. So we are not to be taken to accept the appellants' submission; we have not received the advice of expert historians that would be required for us to make a definitive decision on such questions. Had it been necessary to the resolution of the case we would have adjourned the hearing to receive further evidence and submissions on the point.

15	But we are satisfied that the issue has already been determined by this Court in Sia'aga v OF Nelson Properties Ltd. In that case the decision was not confined to land which was the subject of an agreement recorded by the Supreme Court during the era of the German Protectorate from 1 March 1900 which this Court held and the appellants accepted was binding as a determination of the then legal system of Samoa. One parcel of land was the subject of Court Grant 721 issued by the Supreme Court during the period of the Condominium, on 5 March 1897. Our judgment in Sia'aga stated:

18. In Alii 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. 

16	The judgment did not distinguish in terms of validity between the 1897 decision of the Supreme Court issuing Court Grant 721 during the Condominium period and the later decisions given during the German Protectorate period. No suggestion to that effect was made during the argument in Sia'aga in which counsel for the Attorney General and for the appellants alike had accepted the efficacy in law of judicial determinations in both Condominium and German Protectorate eras.

17	Had the appellants adduced substantial evidence to demonstrate that our approach in Sia'aga was wrong in relation to the Condominium era, we would have given careful consideration to whether we should treat it as decided per incuriam (in error) and adopt a different approach in this case. But having made what may be taken to represent their best case by the production of the documents referred to at [11] we have no doubt that such course is unjustifiable. Those documents are wholly consistent with the approach adopted both by the Plenipotentiaries who signed the Berlin Act and by King Malietoa who by his signature evidenced "the assent of the Samoan Government" to it: the act of a King exercising Royal sovereignty. We do not overlook the important roles of other matai and families, no doubt including that of the High Chief Saga who signed the Treaty of Friendship. But no case was made by the appellants that Malietoa lacked the authority of his senior compatriots to speak for the Government. A major purpose of the law is to ensure the stability of land title, values recognised not only by Art III ss 1 and 9(1) and Art IV ss 1 and 2 of the Berlin Act ([5-6] above) but by Art 14 of the Constitution of Samoa. This Court will not lightly contribute to unsettling what has already been determined. To distinguish in the Malietoa era between the role of a King and that of the Government is, we are satisfied, to engage in anachronism.

18	It follows that we agree with the admirable decision of the Nelson J that the statement of claim discloses no cause of action which the Supreme Court might properly entertain.

Result

19	The appeal is dismissed. While we will consider submissions as to costs received within the time fixed in the judgment of the Court we record our opinion that, as in the recent case Samoa Party v Attorney General [2010] WSCA 4 at [56], the litigation has served the public purpose of clarifying fundamental principle in relation to the Constitution of Samoa.

Honourable Justice Baragwanath
Honourable Justice Slicer
Honourable Justice Fisher