COURT OF APPEAL OF SAMOA
Pepe Seiuli and others v President and Registrar of LTC [2013] WSCA 10 

Case name: Pepe Seiuli v President and Registrar of LTC
Citation: [2013] WSCA 10 
Decision date: 15 November 2013
Parties: MAUALAIVAO SEIULI PEPE SEIULI, FA’AOLESA KATOPAU T, AINU’U, MATA’AFA TAMASAILAU SALU and AUIMATAGI SAPANI POMARE (Appellants) PRESIDENT OF LAND AND TITLES COURT (First Respondent) and REGISTRAR OF LAND AND TITLES COURT (Second Respondent) 
Hearing date(s): 11 November 2013
File number(s): CA15/13
Jurisdiction: Civil
Place of delivery: Mulinuu
Judge(s): 
Justice Fisher
Justice Hammond
Justice Blanchard
On appeal from: Maualaivao Pepe Seiuli and others v President of LTC and Registrar of LTC (Supreme Court matter)
Order: 
Representation: 
F K Ainuu for Appellants
M Lui and K Seuseu-So’o for Respondents
Catchwords: 
Words and phrases:
Legislation cited:
Land and Titles Act 1981
Cases cited:
Penaia II v Land and Titles Court [2012] WSCA 6
Summary of decision:

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

FILE NO: C.A15/13

BETWEEN

MAUALAIVAO SEIULI PEPE SEIULI, FA’AOLESA KATOPAU T, AINU’U, MATA’AFA TAMASAILAU SALU and AUIMATAGI SAPANI POMARE, 
Appellants

A  N  D:

PRESIDENT OF LAND AND TITLES COURT 
First Respondent

A  N  D:

REGISTRAR OF LAND AND TITLES COURT
Second Respondent 

Coram:	Honourable Justice Fisher 
	Honourable Justice Hammond
	Honourable Justice Blanchard

Counsel:	   F K Ainuu for Appellants
	M Lui and K Seuseu-So’o for RespondenB Squire QC and 

Hearing: 	13 November 2013
	
Judgment: 	15 November 2013

JUDGMENT OF THE COURT
1.	The usage of the customary land known as Gautavai located at Tauese in Apia is in accordance with the pule (authority) of the matai title Faualo.  But the Faualo title has been vacant for many years and there is disagreement between the heirs to the title about who should now become the matai, and therefore who should make decision about the use of the land.
2.	The applicants say that they have traditionally, and with the approval of previous now deceased matai, constructed and enjoyed the use of a house on a certain part of the land.  They now wish to construct a new replacement house in or about the same portion of the land but of course they have not been able to obtain an approval from a matai title holder to do so.  In these circumstances they began the construction of a new house.  Other heirs raised objection and approached the Land and Titles Court seeking to have the construction stopped.
3.	The Registrar issued an interim injunction on 24 September 2012 directing the applicants to stop the construction.  The Registrar appears to have done this in reliance on s.50 of the Land and Titles Act 1981 which reads:
“50.  Interim orders by Registrar – If the Registrar is satisfied that a dispute has arisen between Samoans which is within the jurisdiction of the Court, and is likely to be the Subject matter of proceedings under this Act, he may, with the concurrence of the President or two Samoan Judges at any time before the commencement of proceedings, make such order as he thinks fit to restrain any Samoan from:
(a) remaining in possession of or entering upon any land;
	(b) holding or using any Samoan name or title;
(c) exercising any right or doing any act matter or things concerning or affecting any land or any Samoan name or title.”
4.	When served with the injunction the applicants requested the Court to rescind or vary its interim order so as to enable construction to proceed.  They offered a written undertaking to remove the new house if, when a new matai title holder has been appointed, that matai does not agree to the presence of the house.  That application was referred to the President of the Court who refused it.  In a letter the applicants were given reasons, which included that there were already proceedings in the Court (which we understand had been commenced in February 2012) to determine the appointment of the matai title.  The President appears to have been acting under s.49:
“49. Interim orders by President – Upon the commencement of any proceedings and pending the final determination of the petition by the Court, the President sitting alone may make, either ex parte or otherwise, such interim orders as the President thinks fit as to the possession of the land, or the using of the title, or the exercise of the right to which the petition relates.”
5.	The applicants then applied in the Supreme Court for judicial review of the decisions of the Registrar and the President.  In a ruling of 24 June 2013, Vaai J struck out their application.  He declined to investigate alleged breaches of ss49 and 50 by the respondents, citing the privative provision in s.71.  It had been alleged that judicial review was nevertheless possible because the existence of the injunction was preventing the applicants from having the Land and Titles Court determine whether they could proceed with construction and thus was depriving them of “a fair and public hearing within a reasonable time”, contrary to Article 9 of the Constitution.  Vaai J concluded, however, that, as the injunction was an interim order only, it would not prevent a determination of the substantive dispute between the applicants and the other heirs about the house.  He was also mindful that such a determination at this time would be tantamount to denying the Faualo title holder, when appointed, the right to a fair trial on that issue.
6.	There has been some contention over whether the appeal now brought to this Court from Vaai J’s decision was in time or needed leave from this Court (he having refused leave).  However, counsel for the respondents responsibly accepted that any necessary leave should be granted and we were therefore able to go straight to the merits of the appeal.
7.	Mr Ainuu pointed out that, in accordance with s.42(1), a proceeding had been instituted in the Land and Titles Court when the heirs who were opposed to the construction of the house wrote to the Court expressing their objection and asking for work to be stopped.  He said that on receiving that communication the Registrar should have prepared a petition as required by s.42(2).  The notice so given by the opposing heirs also had the effect, Mr Ainuu said, that the Registrar did not possess the power to issue an interim injunction, as he can do this under s.50, with the concurrence of the President or two Samoan judges, only “at any time before the commencement of proceedings.”  
8.	There appears to be some force in these submissions but they cannot carry the day, first, because the President confirmed what the Registrar had done, effectively himself ordering that an injunction be in place, which he had power to do under s.49 once proceedings had been commenced; and secondly, because the Supreme Court and this Court are precluded by s.71 from interfering unless there has been a breach of a fundamental right found in Part II of the Constitution.  That is well established:  see Penaia II v Land and Titles Court [2012] WSCA 6.  
9.	Recognising the latter difficulty, Mr Ainuu said that, as the Registrar had not prepared a petition, his clients would not receive a trial within a reasonable time.  He said that it was unreasonable that the applicants were being required to await the appointment of the matai title holder before having the house construction dispute determined.
10.	That title matter itself had been awaiting determination by the Court since the proceedings about the title were commenced in February 2012.  Mr Ainuu said that it was likely to take at least five years more.  The Land and Titles Court has apparently looked into the matter, unsuccessfully tried to promote a resolution and has now, on 8 February 2013, directed the heirs to meet to resolve the appointment.
11.	It is clear to us that Vaai J was correct in his conclusion that no breach of the applicants’ constitutional right under s.9 has occurred.  The Land and Titles Court is seized of the dispute over the matai title.  Such matters can be difficult and it is understandable that the Court has chosen to approach the issue cautiously and to try in the first instance to get the disputants to resolve on an appointment by consensus.  The case has been in the Court for less than two years and in our view it cannot be said, that in a case of this kind, that is a delay which amounts to a failure to afford the parties a trial within a reasonable time.
12.	It would be unwise for us, especially without the assistance of a resident Samoan Judge, to express any view as when a delay in a case of this kind might became constitutionally unreasonable. Cases may well differ considerably.  The Land and Titles Court will be well aware that it must handle the matter in a way which does not give rise to any breach of Article 9.
13.	Because any ultimate resolution of the dispute over the construction of the house by the applicants will depend upon the selection of the matai title holder and that person’s decision, it is appropriate that any proceedings concerning that construction should be put on hold in the meantime.  The fact that the applicants are awaiting this decision will, however, be a matter to be considered in connection with the reasonableness of further delay in the appointment of a matai. 
14.	The appeal is therefore dismissed with costs to the respondents of $2000.

Honourable Justice Fisher
Honourable Justice Hammond
Honourable Justice Blanchard