THE COURT OF APPEAL OF SAMOA
Malifa v President of Land and Titles [2014] WSCA 11

Case name: 	Malifa v President of Land and Titles	
		
Citation: 	[2014] WSCA 11	
		
Decision date: 	7 November 2014	
		
Parties: 	savea sano malifa (appellant) v president of the lands and titles court, maulolo wairaki toevai (second respondent) fata pemila ututa’aloga charlie ulia (third respondents) saena tialino penaia II, fata meafou (fourth respondents)

Hearing date(s): 	4 November 2014	
		
File number(s): 	CA 07/14	
		
Jurisdiction: 	Civil	
		
Place of delivery: 	Court of Appeal of Samoa, Mulinuu	
		
Judge(s): 	His Honour Justice Fisher
His Honour Justice Hammond
His Honour Justice Blanchard	
		
On appeal from:	Supreme Court	
		
Order:	-	The appeal is dismissed 
-	The first respondent, who carried the burden of the appeal, will have costs of $5,000 and disbursements as fixed by the Registrar.
-	Each of the other respondents will have costs of $500 and disbursements as fixed by the Registrar.
-		
		
Representation: 	L T Malifa for appellant
M T Lui and S Ainu’u for first respondent
M V Peteru for second and first third named respondents	

Catchwords: 	strike out application for judicial review – fundamental human rights - right to a fair trial -determination of civil rights - constitutional breach – appeal dismissed	
		
Words and phrases:	“authority”- “ring-fenced”-	
		
Legislation cited:	Constitution of the Independent State of Samoa 1960, ss.2, 4(1), 4(2), 9(1) 
Land and Titles Act 1981, ss.70, 71, 74, 91
Supreme Court (Civil Procedure) Rules 1980, R. 70, 206 

Cases cited:	Penaia II v Land and Titles Court [2012] WSCA 6 
Savea Sano Malifa v The President of the Lands & Titles 
LC 724 P3-P11 
LC 8809 P2-P10 

Summary of decision:		

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

FILE NO: CA 07/14

BETWEEN

SAVEA SANO MALIFA of Afega, Chief Editor
Appellant

A N D
PRESIDENT OF THE LANDS AND TITLES COURT established under the Constitution and the Lands and Titles Act 1981
First Respondent

A N D

MAULOLO WAIRAKI TOEVAI
Second Respondent

A N D

FATA PEMILA and UTUTA’ALOGA CHARLIE ULIA
Third Respondents

A N D

SAENA TIALINO PENAIA II and FATA MEAFOU
Fourth Respondents

Coram:	Honourable Justice Fisher
Honourable Justice Hammond
	Honourable Justice Blanchard
	
Counsel:	L T Malifa for appellant
		M T Lui and S Ainu’u for first respondent
		M V Peteru for second and first third named respondents	
Hearing:	4 November 2014
Judgment:	7 November 2014

JUDGMENT OF THE COURT
Introduction
1. 	The appellant appeals against a decision of the Supreme Court of Samoa striking out his application for judicial review of Savea Sano Malifa v The President of the Lands & Titles Court, 17 April 2014, Misc 1202/12, Nelson J.
2. 	A considerable volume of material was filed by the appellant.  We will proceed by indicating the nature of the underlying dispute; the position of the parties with respect to that dispute; why the Supreme Court took the course that it did; and then set out our resolution of the appellant’s fundamental concern: that his proceeding should not have been struck out.
3. 	We appreciate the importance of this case to the appellant, and the value of the material filed.  But we take the view that the issues before us are within a narrow compass.
The underlying dispute
4. 	A dispute arose as to the Ututa’aloga and Savea titles of the village of Afega.
5. 	The assistance of the Land and Titles Court and, on appeal, the Land and Titles Court of Appeal was sought to resolve these issues.  There were two cases: 
(a) 	LC 724 P3-P11 (28 August 2009) related to the pule (control/authority) of the matai (chiefly) title of Savea; and
(b) 	LC 8809 P2-P10 (23 March 2012) related to the pule of the matai title of Ututa’aloga. 
6. 	The Land and Titles Appeal Court held that the true heirs of the Savea title included the appellant and certain other persons.  As to the Ututa’aloga title, it held that title resided jointly in the heirs of the third respondents and the heirs of the fourth respondents, including the appellant.
7. 	Importantly, it was also held that the consent of one branch of a bestowal of the title in the other was not required.
The appellant is dissatisfied but faces a jurisdictional block 
8. 	The appellant disagreed with those outcomes.  He wished to advance his concerns further on appeal.  However, the Land and Titles Act 1981, which deals with customary land in Samoa, gives jurisdiction only to the Land and Titles Courts we have already mentioned.
9. 	The judgments of those Courts are “ring-fenced”, in two important respects.  Under s.70 “every final decision of the Court on a petition is deemed to be judgment in rem and shall bind all Samoans who are affected by it, whether parties to the proceeding or not.”  Secondly, under s.71, “...no decision or order of the [Land and Titles] Court shall be reviewed or questioned in any other Court by way of appeal, prerogative writ or otherwise howsoever.”  Nevertheless, enforcement of decisions and orders of the Land and Titles Courts is through the Supreme Court, or as the case may be, through the District Court (s.74).  We will refer to the Land and Titles Courts as LTC.
The appellant raises a constitutional concern
10. 	The Constitution of the Independent State of Samoa provides that it is “the supreme law of Samoa” (s.2).
11. 	It also provides for certain “Fundamental Rights” for all Samoans.  “Any persons may apply to the Supreme Court by appropriate proceedings to enforce the rights conferred by the Constitution” (s.4(1)).  Section 4(2) gives the Supreme Court “...power to make all such orders as may be necessary and appropriate to secure to the applicant the enjoyment of any of the rights conferred by the Constitution.”
12. 	The appellant pointed to s.9(1) of the Constitution which provides:
	9. Right to a fair trial - (1) In the determination of his civil rights and obligations or of any charge against him for any offence, every person is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established under the law. Judgment shall be pronounced in public, but the public and representatives of news service may be excluded from all or part of the trial in the interests of morals, public order or national security, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the Court in special circumstances where publicity would prejudice the interests of justice.
13. 	The appellant claimed that he had not been “heard”, or at least not properly so in some respects, in the LTC.  We will detail these respects shortly.
14. 	It was therefore said that there has been a breach of the Constitution.  The appellant sought to judicially review the LTC decisions in the Supreme Court.
The jurisdiction of the Supreme Court to judicially review LTC decisions 
15. 	At first blush it might have been thought that s.71 of the LTC legislation, standing alone, precludes any review by any Court in any circumstances.  But the section does not stand alone.  Such an outcome would be inimical in a constitutional regime which protects fundamental rights.  Section 71 has to be read alongside Article 4(2), which specifically enables the Supreme Court to make orders to secure fundamental rights.
16. 	The Attorney-General very properly accepts that s.71 of the Land and Titles Act cannot oust the jurisdiction of the Supreme Court in this respect.  This had been confirmed by this Court in Penaia II v Land and Titles Court [2012] WSCA 6 (6 May 2012).  This, because, on the language of s.91, and a policy which respects both Samoan values (fa’a Samoa, or traditional Samoan way, which remains a strong force in Samoan life and politics) and the importance of fundamental human rights, this relatively narrow, but important window of reviewability had been created by the Parliament of Samoa.  The result, as this Court noted in Penaia II is that the LTC may reach decisions with which the Courts of general jurisdiction may disagree.  “But that is the price to be paid for the benefit of the regime.” (Penaia II at [25]).
17. 	So there is no doubt that the Supreme Court had jurisdiction to entertain the application; the issue is whether the appellant could sustain it.  
The appellant’s complaint 
18. 	The thrust of Article 9 is that an affected person has the right of access of the Court, the opportunity to take part in the proceedings, and to be heard in any relevant respects in those proceedings.
19. 	It is necessary at this point to deal in more detail with what was being advanced to the LTC.   Nelson J summarised the Savea title issue this way:
	“The applicant’s position in relation to the title Savea was better clarified by Mr Malifa in oral argument.  He said the breaches complained about consisted of the Land and Titles Court applying wrong custom to the point of inventing new customary practices.  This was done in its decision to place the three kinds of heirs – suli fa’avae also known as suli moni, suli tautua and suli pa’i suafa – on an equal footing in the Savea family without the applicant being given the opportunity to comment thereon.  As a consequence the applicant being a suli moni now shares the pule with respondents who are not true heirs.”
20. 	As to the Ututa’aloga title he said:
	“As noted earlier it appears from the grounds of the application/motion for review that the applicant is essentially questioning the findings and conclusions of the Land and Titles Court of Appeal in relation to the geneaology of Ututa’aloga Leo’o whom he says died without issue and from whom he says he is not descended.  He also questions the courts finding that the sa’o-tama’ita’i of the Ututa’aloga title is the same as that of the Savea title but accepts that Savea and Ututa’aloga are in custom and reality “uso-tuofe.”  The final ground of his application is that the court did not take into account his genealogy as confirmed in previous decisions of the Land and Titles Court in 1953, 2007, 2010 and 2012.”
21. 	Nelson J took the view, after examining the record, that the appellants were heard on these matters.  And the Judge took the view (at [21]) that what was really being questioned was not the fairness of the conduct of the hearing, but the fairness of its conclusion.  The Judge was satisfied on his perusal of the record that the appellant was “heard”.  
22. 	We were assisted by a translation of the exchange between the Judges in the LTC and the applicant.
23. 	It is clear that there were many questions asked by the Judges in the Appeal Court and responded to directly by the appellant.  As only one instance we note the following exchange relating to the Savea title:
	“Question: 	Let’s leave Mata Meafou for a while, we are still on custom and traditions, what you have prepared seems to be inconsistent with custom and tradition, you have said that the authority to select the holder of the Savea title should be selected by those who hold pule as blood heirs of the title, and not by those who earned pule through service.  The question is, how about adopted heirs, are they able to participate in the selection of a holder of the title Savea?
	Answer:	Adopted heirs or children, if they are already part of the gathering of the family, there is no difference between them and heirs by blood because they are now part of the gathering of the family and respect has been afforded to them accordingly and if adopted heirs or children wish to leave the gathering of the family, they may do so, but they are part of the family and should be present during the selection, however for the Savea title there does not seem to be any selection at all as the family is scattered and we think something should be done about (it) because we have combined adopted heirs and heirs by service which is the root of this all (sic) fiasco”
24. 	In this Court the appellant has to show that the Supreme Court Judge was wrong to say he had been heard.  On the basis of the written record alone, he was heard, on the merits.  And he was not deflected or prevented from advancing his concerns.
25. 	This ground of appeal has not been made out.  That leaves the question of what course the Supreme Court was to adopt, to which we now turn.  
Strike out
26. 	The Judge struck out the appellant’s proceeding.  The Supreme Court has statutory power under Rule 70 in combination with Rule 206 of the Supreme Court (Civil Procedure) Rules 1980; and an inherent jurisdiction to strike out where, inter alia, a claim is untenable or without substance.  That power or jurisdiction must be exercisable in such a case notwithstanding that a supposed constitutional breach is being raised.  It would be futile to allow the matter to proceed further. 
27. 	Nelson J correctly reminded himself that the strike out jurisdiction should be exercised sparingly and only in obvious cases.  We agree with the Judge that this is just such a case: it has no prospect of success.  
Conclusion 
 (1) 	The appeal is dismissed 
(2) 	The first respondent, who carried the burden of the appeal, will have costs of $5,000 and disbursements as fixed by the Registrar.
(3) 	Each of the other respondents will have costs of $500 and disbursements as fixed by the Registrar.

Honourable Justice Fisher
Honourable Justice Hammond
Honourable Justice Blanchard