IN THE COURT OF APPEAL OF SAMOA
The Land Titles Court v Kalevini & Anor [2017] WSCA 8

Case name: 	The Land and Titles Court v Kalevini & Anor	
		
Citation: 	WSCA 8	
		
Decision date: 	15 September 2017	
		
Parties: 	THE LAND AND TITLES COURT (Appellant) and TALALELEI LOFIPO KALEVINI & LESILI FIPE LOFIPO KALAVINI (Respondents)	
		
Hearing date(s): 	12 September 2017	
		
File number(s): 	CA08/17	
		
Jurisdiction: 	CIVIL	
		
Place of delivery: 	Court of Appeal of Samoa, Mulinuu	
		
Judge(s): 	Honourable Justice Fisher
Honourable Justice Panckhurst 
Honourable Justice Hansen	
		
On appeal from:	Supreme Court of Samoa	
		
Order:	The appeal succeeds. The respondents claim against the appellant is struck out.  The appellant is entitled to costs in the sum of $5,000.	
		
Representation: 	S Ainuu and T Peniamina for Appellant
R Drake for Respondents	
		
Catchwords: 		
		
Words and phrases:	Land and Titles Court matter – judicial immunity – building project stopped – customary land leased – Registrar stopped without lawful justification.	
		
Legislation cited:	Alienation of Customary Land Act 1965;
Crown Proceedings Act 1950 s. 6(5); 
Government Proceedings Act 1974 ss. 2; 2(2); 9(3)
Land and Tiles Act 1981 ss. 50; 51(1); 51(2); 51(3);
Limitation Act 1975 s. 21	
		
Cases cited:	Attorney General v Chapman [2011] NZSC 110;
Crispin v Registrar of the District Court [1986] 2 NZLR 246;
Tafililupetiamalie v Attorney General [2015] WSSC 62 (30 June 2015).	
		
Summary of decision:		

CA 08/17

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

BETWEEN:

LAND AND TITLES COURT, Mulinuu
Appellant

A N D:

TALALELEI LOFIPO KALEVINI, Pastor & LESILI FIPE LOFIPO KALAVINI, married woman both of Tulaele.
Respondents

Coram:		Honourable Justice Fisher
		Honourable Justice Panckhurst 
		Honourable Justice Hansen

Counsel:	S Ainuu and T Peniamina for Appellant
		R Drake for Respondents 

Hearing:	12 September 2017

Judgment:	15 September 2017

JUDGMENT OF THE COURT
1.	The Land and Titles Court appeals against the refusal of Vaai J to strike out the respondents claim against the Court. 
2.	On 4 September 2015 the respondents entered into a lease of customary land known as Leaena at Matautu Lefaga.  The lessor was the Chief Executive Officer of the Ministry of Natural Resources and Environment as trustee for the beneficial owners.  He granted the lease under the Alienation of Customary Land Act 1965 on the application of Tuala Tamailelagi Tausaga, a matai of Matautu Lefaga, as agent for the beneficial owners.
3.	Following the grant of the lease the respondents obtained the necessary building permit and began to construct a house on the land.  Their intention was to build the house and then a shop and service station.
4.	On 14 October 2015, following complaints by some beneficial owners that they had not been consulted about the proposed lease, the Registrar of the Court with the concurrence of two Samoan Judges made an order under s.50 of the Land and Tiles Act 1981 (the Act) requiring the respondents to stop work and not to enter onto the land.
5.	The respondent’s subsequently issued proceedings against Tuala Taimalelagi Tausaga as first defendant, the Land and Titles Court as second defendant and the Attorney General for and on behalf of the Ministry of Natural Resources and Environment (the Ministry) as third defendant.  The Land and Titles Court was alleged to have acted unreasonably and without lawful justification in issuing the restraining orders.  The first and third defendants were claimed to have been in breach of the lease. The respondents seek to recover losses of $111,874.42 and general and exemplary damages. 
6.	The Court and the Ministry applied to strike out the claims against them.  The respondents subsequently discontinued their claim against the Ministry.  The application to strike out was accordingly pursued by the Land and Titles Court alone.
Grounds of strike out application 
7.	The strike out application was brought on the ground that the claim against the Land and Titles Court was frivolous and vexatious, an abuse of process and without prospect of success in that:
a)	The Land and Titles Court is protected by the principle of judicial immunity.
b)	The plaintiffs failed to give notice under s.21 of the Limitation Act 1975.
c)	The plaintiff’s claim against the Land and Titles Court is defective in that they should have sought an order quashing the interim order instead of claiming damages. 
8.	The Limitation Act argument was abandoned at the hearing.
Judges decision 
9.	Vaai J held that the Land and Titles Court had failed to make out either of the remaining grounds.  Citing the decision of Sapolu CJ in Tafililupetiamalie v Attorney General [2015] WSSC 62 (30 June 2015), he accepted that the common law principle of judicial immunity from liability in a civil suit for damages extends to judges of the Land and Titles Court.  However, he found reason to doubt that the principle applied to the actions of the Registrar in this case having regard in particular to the following passage from the judgment of McGrath and William Young JJ in the New Zealand case of Attorney General v Chapman [2011] NZSC 110 at 166:
“The principles of judicial immunity are the result of a balancing exercise.  On the one hand is the problem of a disappointed litigant with a genuine grievance but no remedy.  On the other hand there are the undesirable consequences of permitting claims against Judges.  The response of the Courts in cases such as Nakhla and Gazley has been to allow the latter consideration to trump the former.” (The emphasis was added by the Judge).
10.	Vaai J noted the reference in the passage quoted is to a ‘litigant’ and said the respondents are hardly litigants in the sense used in Chapman. After observing that the evidence showed the Registrar knew the respondents were parties to the lease, he continued:
“At the same time the plaintiffs were never and still are not litigants to any proceedings either already commenced or yet to commence in the Lands and Titles Court.  It is also most likely they can be parties to any proceedings in the Lands and Titles Court in a dispute over land to which their only legal connection to is a lease.  The plaintiffs in Chapman and Tafililupetiamalie were both litigants who were parties to legal proceedings which ran their full courses through the relevant court systems before judicial immunity protection was claimed by the judges who presided in the proceedings from which claims for damages was sought.  That is hardly the case here.
11.	Vaai J then considered the reference in Chapman to ‘judges’, saying:
“Second, the Registrar even if he is considered in the circumstances he issued the Interim Order a judicial officer is again hardly a ‘judge’ in the context of and in the circumstances within which a judge for the purposes of considering judicial immunity protection was seen in the discussions in Chapman and Tafililupetiamalie. 
12.	Third, the judge found merit in the respondents’ argument that judicial immunity may not apply where a judge or judicial officer has acted without jurisdiction or unlawfully.  He said this issue required further evidence and submissions.  On this basis, also, Vaai J was not prepared to find the respondents claim to be defective or an abuse of process.
Preliminary issue
13.	As a preliminary issue, it is necessary to comment on the joinder of the Land and Titles Court itself as a defendant.  The acts complained of were those of the Registrar not the Court.  He is an officer of the Government as defined in Section 2 of the Government Proceedings Act 1974 and, by s.2 (2), included in any reference to Government in the Act.
14.	Section 9 (3) provides that the Government may be joined as a defendant to any civil proceedings by joining the Attorney General.  This is how the Registrar of the Land and Titles Court should have been joined.  Had it been necessary to do so we would have granted an application to amend to give effect to this requirement.
The cause of action 
15.	The claim against the Land and Titles Court as pleaded in the statement of claim is:
“THAT the Second Defendant being aware of the lease in favour of the Plaintiffs has acted unreasonably and without lawful justification in issuing the restraining orders against the Plaintiffs thereby causing loss and damage to the Plaintiffs as particularized hereunder”
16.	At the hearing we inquired of Mrs Drake how the pleading could found a claim for damages against the Registrar.  She acknowledged that the current pleading did not disclose any cause of action.  She also accepted that, there being no suggestion that the Registrar acted maliciously or otherwise in bad faith, no claim could lie for misfeasance in public office.  She proffered that, by interfering with the respondents’ rights to use their land, the Registrar could have trespassed on the land.  But that is plainly untenable; trespass requires a physical intrusion onto land.
17.	It became clear in the course of exchanges between Bench and bar that there simply is no legal basis on which the respondents could maintain a claim for damages arising from the making of the interim orders.
18.	The power to make such orders is conferred on the Registrar by s.50 of the Act which provides:
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 2 Samoans Judges before the commencement of proceedings, make an 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; or
c)	exercising any right or doing any act matter or things concerning or affecting any land or any Samoan name or title.
19.	There is uncontested evidence (filed in support of the strike out application) that the Registrar made the order at the request of Mr Tausaga and five other beneficial owners.  In their letter of 7 October 2015 they complained that a permanent house was being built on the land whereas the land had been leased for the purpose of building a shop.  The lease itself provides, more generally, that the land is leased for business purposes.  Clause 5.1.1 of the lease requires that the land be used for the stated purpose and no other.
20.	By section 51 (1) of the Act an order made under section 50 remains in full force and effect until the final judgment of the Court.  However, subsections (2) and (3) provide as follows for orders to be modified, varied or rescinded:
“(2)	The President may after the commencement of proceedings, upon the application of any party affected by an order made under section 50, modify, vary or rescind the order.
“(3)	The Registrar may before the commencement of proceedings, upon the application of any person affected by an order made under section 50, modify, vary or rescind the order. 	
21.	The respondents took no steps to have the interim orders rescinded.  They appear to have accepted that they were not entitled to build a house on the land.  According to the affidavit of the Registrar filed in support of the strike out application, at a meeting prior to the issue of the interim orders and subsequently at a meeting with beneficial owners convened by a mediator, the respondents admitted they were wrong to build a house on the land. 
22.	In the circumstances it is clear that there is no conceivable basis on which the respondents could bring a claim arising out of the interim orders.  The pleading as it concerns the Land and Titles Court cannot be cured and must be struck out.  
Judicial immunity 
23.	Our finding that the claim against the Land and Titles Court is irremediably defective is sufficient to dispose of the appeal.  However, in deference to the findings in the Supreme Court on the potential application of the principle of judicial immunity, we will briefly comment on that topic.
24.	As earlier noted, Vaai J doubted that the Registrar’s acts would be protected by judicial immunity because the respondents were not ‘litigants’, the Registrar was not a ‘judge’ (as those terms were used in the passage cited from Attorney General v Chapman) and because the Registrar may have acted without jurisdiction or unlawfully.
25.	The term ‘litigant’ was used in Chapman to refer to a person affected or aggrieved by the judicial act in question and who seeks to mount a claim.  It is not to be characterised as a prerequisite to the application of judicial immunity.  Had the respondents been able to mount a claim arising out of the interim orders, the question whether judicial immunity applied could undoubtedly have been explored. 
26.	It is well established that judicial immunity does not apply simply to shield judges from claims for damages but extends to any person exercising judicial functions:  see Chapman at [161] and the discussion in Tafililupetiamalie at paras 31 – 43.  The broad scope of immunity as it affects claims in tort is enshrined in s.6 (3) of the Government Proceedings Act 1974 which provides:
“No proceedings lie against the Government by virtue of this section in respect of anything done or omitted to be done by a person while discharging or purporting to discharge responsibilities of a judicial nature vested in the person, or responsibilities which the person has in connection with the execution of the judicial process.”
27.	Mr Ainuu referred us to Crispin v Registrar of the District Court [1986] 2 NZLR 246 as an example of a case in which a Registrar exercising judicial functions was entitled to immunity under the common law and also to the protection available under section 6(5) of the Crown Proceedings Act 1950, the equivalent New Zealand statutory provision to s.6(3) of the Government Proceedings Act.
28.	In exercising, with two judges, the responsibility of deciding whether and, if so, in what terms, to make interim orders, the Registrar was demonstrably exercising a judicial function and was entitled to judicial immunity and the protection afforded by the Government Proceedings Act.
29.	The principle of judicial immunity applies even when the judge or judicial officer acts in excess of jurisdiction – see the discussion in Tafililupetiamalie at paras 33-35. That said, for the reasons already discussed, there can be no question in this case of the Registrar not having jurisdiction or otherwise acting unlawfully.  
30.	We conclude that Vaai J erred in finding that judicial immunity may not apply to the respondents claim.
Result
31.	The appeal succeeds. The respondents claim against the appellant is struck out.  The appellant is entitled to costs in the sum of $ 5,000.

HONOURABLE JUSTICE FISHER
HONOURABLE JUSTICE PANCKHURST
HONOURABLE JUSTICE HANSEN