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Saeni v Fa'alafua [2019] WSCA 3 (15 April 2019)

IN THE COURT OF APPEAL OF SAMOA
Lemalu Saeni & Ors v Lemalu Faalafua & Ors [2019] WSCA 3

CA 10/19

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

BETWEEN:

LEMALU SAENI, matai of Lotofaga and New Zealand; LEMALU LAUTI, matai of Lefaga and Australia; REV SIALOGA LEMALU, Methodist
Minister of Samoa, and TUPE LEMALU, Businesswoman of Lefaga
Appellants

AND:

LEMALU FA'ALAFUA, LEMALU AILIMA AUALA LEMALU MATAGI. APE VAVEGA, AUALA ENELE and AUALA TALAIFO, all matais of Lefaga
First Respondents

AND:

SUA PALE LIMITED a duly registered company trading as 'Return to Paradise
Beach Club'
Second Respondents

AND:

LANDS AND TITLES COURT a court of record continued under the Lands & Titles Act 1981
Third Respondent

AND:

LANDS AND TITLES APPELLATE COURT, a court of record with powers under Part IX of the Lands Titles Act 1981
Fourth Respondents

Court: Honourable Justice Fisher
Honourable Justice Panckhurst
Honourable Justice Harrison
Hearing: 9 April 2019

Counsel: Leuluaialii T. Malifa for the appellants
Taulapapa B. Heather-Latu & George Latu for the first and second respondents
D. Fong for the third and fourth respondents

Judgment: 15 April 2019

JUDGMENT OF THE COURT

Introduction

1. This appeal raises two questions of law - (i) the jurisdiction of the Land and Titles Court to revoke a Minister’s lease granted under the Alienation of Customary Land Act 1965 and (ii) the Supreme Court’s jurisdiction to review decisions of the Land and Titles Court.
2. The appellants and the first respondents are in dispute over the use of jointly owned customary land at Matautu (“Faga”). Given that they share the name “Lemalu” it will be convenient to refer to the appellants as “the Saeni family” and the first respondents as “the Fa’alafua family”.
3. The Fa’alafua family arranged for the Minister of Lands to lease the land to the second respondent (“SPL”). SPL built a resort known as the “Return to Paradise Beach Club” on this and other leased land at Faga.
4. When the Saeni family filed an objection to this particular lease, the third and fourth respondents (together “the LTC”) cancelled the lease. The Fa’alafua family and SPL responded with judicial review proceedings in the Supreme Court. The Supreme Court overturned the LTC decisions and reinstated the lease. From that decision the Saeni family has appealed to this Court.

Factual background

5. The Saeni and Fa’alafua families, and the wider relatives they each represent, are the beneficial owners of the Faga land. In June 2009 the Fa’alafua family asked the Minister of Lands, as he was then known, to lease the land to SPL. The Ministry published the intention to lease in the Savali newspaper on 28 August 2009. The notice specified the period within which objections to the lease would need to be lodged with the LTC.
6. The Saeni family filed its objection within the required period. However when the relevant petition was called before the LTC on 7 December 2011, the Saeni family agreed not to proceed further. The LTC decision records that the petition was withdrawn for the reason that “[B]oth sides of this matter have agreed to withdraw this in order to reach a decision which seeks peace and harmony with their family”.
7. Mediation followed but was unsuccessful. In the meantime the Ministry of Justice and Courts Administration had written to the Ministry of Lands advising that the Saeni family’s petition had been withdrawn. In reliance on that letter the Minister of Lands granted the lease on 1 December 2012.
8. In reliance on the lease SPL proceeded with improvements to the disputed land. This was part of a much larger enterprise spread over a number of other leases. On this particular land it installed services and villas costing over $6 million.
9. On 27 February 2013 the Saeni family filed a fresh petition objecting to the lease. The fresh petition came before the LTC on 21 June 2013. The LTC granted the petition and held that the lease was “revoked and has no effect”. The Fa'alafua family’s appeal to the Land and Titles Appellate Court was dismissed on 25 July 2014.
10. SPL was not a party to the proceedings in either the original or appellate levels of the LTC.

Proceedings in the Supreme Court

11. When the LTC purported to cancel the lease, the Fa’alafua family and SPL were understandably concerned. If the LTC decision stood, the leasehold interest in the land on which SPL had invested its money would have been lost. They issued proceedings in the Supreme Court. The proceedings sought to judicially review the LTC decisions. The grounds advanced were that the LTC decisions breached SPL’s constitutional right to a fair hearing, that the LTC had no jurisdiction once the original petition had been withdrawn by leave, that LTC’s role was confined to determining whether the objector was a beneficial owner of the land, and that once a Minister had granted such a lease the LTC had no power to terminate it. They sought a declaration that the lease was still valid.
12. The Saeni family denied each of those grounds. In addition they argued that ss 38, 42 and 43 of the Land and Titles Act 1981 removed the Supreme Court’s jurisdiction to interfere with the LTC decisions.
13. Tuala-Warren J held that the LTC was wrong to assume that it still had jurisdiction, first because the Saeni family’s second petition was out of time and secondly because the LTC had no jurisdiction over a Minister’s lease once granted. She pointed out that to hold otherwise would have a major impact on the commercial viability of leases of customary land and the incentive for lessees to invest in them.
14. As to the Supreme Court jurisdiction to intervene, Tuala-Warren J held that SPL had been given no right of audience in the LTC, that this was a breach of art 9 of the Constitution and that art 4 of the Constitution gave the Supreme Court the overriding function of remedying breaches of the Constitution. She rejected delay as a reason for denying a remedy. She held that the lease was still valid and binding.

The Appeal to this Court

15. The Saeni family appealed to this Court. They expressed their grounds of appeal in many ways but in substance they appear to come down to four:
    • (i) The exercise of LTC jurisdiction to make findings in relation to customary land can have the incidental effect of nullifying a Minister’s lease over that land.
    • (ii) The Supreme Court did not have the jurisdiction to interfere with the LTC decisions.
    • (iii) The Saeni family never lost its right to object to the lease.
    • (iv) The Minister should not have granted the lease.

Ground 1: LTC jurisdiction over customary land after grant of Minister’s lease

16. For the Saeni family, Mr Malifa conceded that the LTC has no jurisdiction to cancel a Minister’s lease of customary land once granted. Nevertheless he sought to argue that even after such a lease had been granted, the LTC retained the jurisdiction to give decisions relating to the underlying customary land and that those decisions could have the incidental effect of nullifying any lease over it. As best we could understand the argument, it appeared to be that without in any way challenging the lease itself, the LTC could take away the right to possession of the underlying customary land. This would leave the lease intact but with no land to which it could apply.
17. There is no point in conceding that the LTC has no jurisdiction to cancel a Minister’s lease if the jurisdiction comes in again through the back door. Proceedings in the LTC under s 9 of the Alienation of Customary Land Act 1965 (“the ACLA”) start from an objection to the proposed lease. Whether or not there should be a lease is the sole point of the proceeding. The argument as expressed by Mr Malifa is pure sophistry. However he chose to express it, he was really submitting that the LTC does have the jurisdiction to cancel a Minister’s lease.
18. To explore that submission it is necessary to start with the relevant provisions of the ACLA. They are:
    • 4. Power to grant lease or licence – (1) Subject to section 3, the Minister, if in his or her opinion the grant of a lease or licence of any customary land or any interest therein is in accordance with Samoan custom and usage, the desires and interests of the beneficial owners of the land or interest therein and the public interest, may grant a lease or licence of that customary land or interest therein as trustee for such owners:
    • (a) for an authorised purpose approved by the Minister; (b) if the authorised purpose so approved is a hotel or industrial purpose, for a term not exceeding 30 years, with or without a right or rights of renewal for a term or terms not exceeding an additional 30 years in the aggregate, as may be approved by the Minister; (c) if the authorised purpose so approved is not a hotel or industrial purpose, for a term not exceeding 20 years with or without a right or rights of renewal for a term or terms not exceeding an additional 20 years in the aggregate, as may be approved by the Minister;(d) for such rent or other consideration payable to the Chief Executive Officer, reviewable or not, and if reviewable at such intervals or on such occasions and in such way, as may be approved by the Minister; and (e) subject to such other covenants, conditions and stipulations as may be approved by the Minister.
    • 5. Application to grant lease or licence – Wherever any Samoan claiming to be a beneficial owner of any customary land or of any interest therein desires that the Minister shall grant a lease or licence of such land or of any interest therein under the powers conferred by section 4, the Samoan shall make written application in that behalf to the Chief Executive Officer
    • 6. Form of application – (1) An application under section 5 shall propose a beneficial owner or beneficial owners of the customary land or interest therein desired to be leased or licensed as the agent or agents of all beneficial owners, to whom the Chief Executive Officer or the Chief Executive Officer of the Ministry of Finance may account for the rent or consideration to be derived from the lease or licence of that land or interest.
    • 8. Publishing of application–(1) Except as provided in subsection (3), the Chief Executive Officer shall publish in the Savali the main particulars of each application received by him or her under section 5, including the names of the proposed agent or agents.(2) With each such publication of particulars of an application, the Chief Executive Officer shall publish in the Savali a notice fixing a date or period, not being less than 3 months from the date of the publication, not later than or within which, and a place at which, written objections to the proposed leasing or licensing or to the proposed agent or agents may be lodged with the Registrar by any Samoan who claims that he or she would be affected thereby
    • 9. Disposal of objections – The Registrar shall, as soon as convenient after receiving any objection, prepare, sign and file a petition to the Land and Titles Court for the purpose of having that objection heard and disposed of, and send a copy of the objection to the Chief Executive Officer, and another copy to the applicant
    • 10. Preparation and completion of lease or licence – (1) Within 1 year of the date when all objections to the application have been disposed of, or when the date or the period not later than or within which objections may be lodged has expired without any objection being lodged, and when the Chief Executive Officer has informed the applicant that the Minister is of the opinion as required by section 4, whichever later occurs [lease is prepared executed and registered]:
    • 11. Payment of rent or other consideration – (1) Every such lease or licence shall operate as if it was a lease or licence as the case may be of public land, but the rent or other consideration derived therefrom shall be received by the Chief Executive Officer in trust for the beneficial owners of the land or interest therein as the case may be.
19. It will be seen from those provisions that statutory scheme involves five steps:
    • (a) The application to grant a lease is made to the Minister’s Chief Executive Officer (s 5).
    • (b) The Minister’s Chief Executive Officer publishes the application (s 8).
    • (c) If there is an objection to the proposed lease the LTC deals with the objection (s 9).
    • (d) The Minister then needs to form an opinion on a number of matters (s 4).
    • (e) The lease is then drafted, executed and registered with the Registrar of Land (s 10).
20. The fourth step in that sequence was that before the Minister could grant a lease he or she had to form an opinion on a number of matters. They are these:
    • (a) Whether the lease would accord with Samoan custom and usage (s 4(1)).
    • (b) Whether the lease would accord with the desires and interests of the beneficial owners of the land (s 4(1)).
    • (c) Whether the lease would accord with the public interest (s 4(1).
    • (d) Whether the Minister approves the purpose of the lease (s 4(1)(a)).
    • (e) What the duration, rent and other terms of the lease should be (s 4(1)(b) to (e)).
21. Of those matters it is implied, rather than expressed, that if an objection is lodged the Minister will look to the LTC for guidance on two of them:
    • (a) whether the proposed lease would accord with Samoan custom and usage (s 4(1)); and
    • (b) whether the proposed lease would accord with the desires and interests of the beneficial owners (s 4(1)).
22. That is the statutory scheme in which the jurisdiction of the LTC is to be assessed. Several points follow.
23. First, whether a lease should be granted, and on what terms, is solely for the Minister to decide. The LTC’s function in this process is purely advisory or consultative. The preliminary matters left to the LTC under s 9 of the ACLA arise only if there is an objection. Even then, the matters left to the LTC are essentially factual (conformity with Samoan custom and usage and the desires and interests of beneficial owners). Once the LTC has provided guidance to the Minister on those matters, the Minister moves on to make a series of further decisions. The decisions include both factual and policy matters. The LTC plays no part in the policy matters. It would be surprising if, after the Minister has made those decisions, the LTC could effectively overrule the result by cancelling the lease.
24. Secondly, it is to be expected that once the lease has been granted the lessee will carry out improvements to the land and enter into commitments on the strength of the lease. . The statutory scheme confirms that once granted by the Minister, the lease has full legal force and effect as a contract between lessor and lessee. Thereafter it could be challenged only on grounds pertinent to that relationship. The prospect that such leases might be terminated by decision of the LTC would be a major disincentive against investing in them in the first place. It would introduce intolerable uncertainty if a lease could be terminated for no reason other than a dispute among the beneficial owners. A dispute among the beneficial owners has nothing to do with the relationship between lessor and lessee. We cannot put it better than Tuala-Warren J who said (para 92):
    • Where a lessee under a lease over customary land can be deprived of their lease without being heard, without being a party or being represented, that lease to an investor like the Second Applicant or any other lessee is of no value whatsoever as it provides no certainty and security as to tenure over the land. Such a position in my respectful view undermines the whole intent of leases over customary land, the certainty that they are intended to provide to parties and more generally, the benefits that customary landowners can obtain through lease rentals, employment and other benefits that flow from such investments.
25. Thirdly, the LTC’s fundamental purpose does not extend to determining rights between lessors and non-customary lessees. The relationship between lessors and non-customary lessees is governed by a set of legal principles derived from statute and common law. They are not derived from “the customs and usages of the Samoan race” which is the LTC’s unique area of expertise.^[1] This is reinforced by the status of the lease once granted. Tuala-Warren J put it as follows:
    • Once this lease was granted, it became a lease of public land according to section 11 ACLA. As a lease of public land by operation of law, the Minister becomes trustee for the beneficial owners. It is a lease which in accordance with section 25 of the Land Titles Registration Act 2006. [It] must be endorsed with a certificate of correctness and registered in accordance with section 26 of [that Act]. This removes such leases from the jurisdiction of the LTC.
26. Fourthly, it is not as if disputes among beneficial owners cannot be resolved after a lease has been granted. There is nothing to prevent the LTC from continuing to determine rights as between actual and alleged beneficial owners. That is a significant jurisdiction given that it determines who is entitled to possession of the land when the lease term ends and the way in which the rent is to be distributed in the meantime. It is just that it is too late to go back to the question whether or not a lease should have been granted.
27. Fifthly, there is no guaranteed procedural protection for lessees if their interests could be put in jeopardy by a dispute between beneficial owners in the LTC. The principal purpose and function of the LTC is to determine disputes between “Samoans” over customary land and titles.^[2] Pursuant to the ACLA, those who are eligible to apply for leases to be granted (s 5), and those who are eligible to object (s 8(2)), must be “Samoans”. As the Judge pointed out, a ''Samoan” is defined in section 3 of the Samoan Status Act 1963 as a person who is a citizen of Samoa and who has any Samoan blood. Artificial legal entities such as limited liability companies could not qualify as “Samoans”. Whether the LTC could direct that non-Samoans be notified, and given a right to be heard, is not something we need to decide in this case. But nothing has been prescribed in either the ACLA or the Land and Titles Act to guarantee that that course would be followed. The sequence followed in the present case, where the lease was purportedly cancelled without hearing from the lessee, shows that procedural protection for lessees cannot be relied upon.
28. In our view those five considerations are overwhelming. We are satisfied that the LTC does not have the jurisdiction to cancel a lease of customary land once it has been granted by the Minister. This ground of appeal fails.

Ground 2: the Supreme Court did not have the jurisdiction to interfere with the LTC decisions.

29. It appeared to be implicit in Mr Malifa’s submissions that the Supreme Court did not have the jurisdiction to interfere with decisions already made by the LTC. Certainly that was the way Tuala-Warren J interpreted his submissions. We approach them in the same way.
30. It is true that the LTC normally has exclusive jurisdiction over all claims and disputes between Samoans relating to customary land, and the right of succession to property held in accordance with the customs and usages of the Samoan race.^[3] Its decisions are not subject to any general power of review in the Supreme Court.^[4]
31. However the Supreme Court does have jurisdiction to intervene in exceptional circumstances. The exceptions are well-established.^[5] The most important one arises where there has been a breach of the Constitution. Where that occurs, the Constitution requires the Supreme Court to step in and provide a remedy for the breach.^[6]
32. In the present case there were two breaches of the Constitution by the LTC. The first involved the purported making of orders beyond the jurisdiction conferred on it by the Constitution. In that regard the Constitution relevantly provides:
    • Art 103. Land and Titles Court - There shall be a Land and Titles Court with such composition and with such jurisdiction in relation to Matai titles and customary land as may be provided by Act.
33. Art 103 is to be read with s 34 of the Land and Titles Act which materially provides:
    • 34. Jurisdiction of the Court
    • (2) ... the Court shall have exclusive jurisdiction in all claims and disputes between Samoans relating to customary land, and the right of succession to property held in accordance with the customs and usages of the Samoan race
34. Because art 103 of the Constitution defines the role of the LTC by reference to such Act as might be passed by Parliament, and Parliament has defined the jurisdiction in s 34(2) of the Lands and Titles Act, that provision has special constitutional status. The effect of s 34(2) is that the LTC’s jurisdiction is concerned with claims and disputes between Samoans relating to customary land, and the right of succession to property held in accordance with the customs and usages of the Samoan race.
35. We agree with Chief Justice Sapolu that the jurisdiction referred to in s 34 is not only exclusive but limiting. The LTC cannot go beyond the jurisdiction defined in s 34. If it does so it breaches the Constitution. As the Chief Justice said in the case of Latter Day Saints:^[7]
    • Article 103 of the Constitution clearly provides that the Land and Titles Court shall have such jurisdiction over matai titles and customary land as may be provided by Act. Clearly to go beyond the jurisdiction given by such Act is to exceed not only the mandate given by the Constitution but the jurisdiction given by the Act itself. It is the constitutional role of the Supreme Court to interpret the written law which includes the Constitution and any Act of Parliament. If any person or body exceeds the parameters of the powers given to him by the Constitution or Act of Parliament, the Supreme Court should be able to say so. In this way, the Supreme Court will only be fulfilling its constitutional role of ensuring that a person or body is acting within the powers given to him by law, whether that law be the Constitution or an Act of Parliament
36. The Latter Day Saints decision is particularly pertinent given that, there too, the LTC had purported to invalidate a lease granted by the Minister of Lands over customary land pursuant to the ACLA. The Chief Justice held that the LTC had exceeded its jurisdiction in attempting to do so. The Supreme Court had the jurisdiction to grant a remedy because it fell within the constitutional exception to ss 34 and 71 of the Land and Titles Act.
37. There was a similar breach of the Constitution in this case. In purporting to cancel the lease on this occasion the LTC was stepping outside its jurisdiction. The excess of jurisdiction was a constitutional breach. The breach was one which the Supreme Court was entitled to remedy.
38. That conclusion is reinforced in this case by a distinct breach of the Constitution. Article 9 of the Constitution relevantly 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.
39. SPL had important rights as lessee. The effect of the LTC decision would have been to override them. Even if the LTC had had jurisdiction to embark on the issue at all, which it did not, it could not have exercised that jurisdiction without giving SPL an opportunity to be heard. That was a distinct breach of the Constitution.
40. We conclude that the Supreme Court was entitled to find that the LTC decisions were unconstitutional. It follows that the Supreme Court had the jurisdiction to set aside the LTC decisions. It was entitled to declare that the lease is still valid and binding.
41. This ground of appeal fails.

Ground 3: The Saeni family never lost its right to object to the lease

42. Mr Malifa submitted that for a variety of technical reasons the Saeni family had never lost its right to pursue its objection to the lease in the LTC. The family’s original objection was brought within time. The family agreed not to pursue the objection only because the parties agreed to negotiate. Whatever the technicalities, one can understand the family’s frustration that when the negotiations failed, it was unable to revert to its original objection or lodge a new one.
43. However the fact is that the lease was granted. Once the Minister granted the lease, the LTC lost any power to cancel it. The horse had bolted. It is therefore academic whether objection procedures were properly observed within the LTC. We can make no comment as to whether they were or not.
44. This ground of appeal fails.

Ground 4: the Minister should not have granted the lease

45. Mr Malifa advanced a series of points in support of his contention that the Minister should not have granted the lease.
46. Unfortunately, this bracket of arguments meets the same obstacle. Once the Minister granted the lease, the LTC lost any power to cancel it. The decision under challenge in the Supreme Court was the decision of the LTC and its appeal division, not the decision of the Minister.
47. This fourth and final ground of appeal fails.

Result

48. The appeal is dismissed with costs to the first and second respondents in the sum of $5,000 each. The third and fourth respondents abided the decision of the Court. There will be no award of costs in their favour.
    

HONOURABLE JUSTICE FISHER
HONOURABLE JUSTICE PANCKHURST
HONOURABLE JUSTICE HARRISON

^[1] Land and Titles Act 1981, s 34
^[2] Constitution, art 103; Land and Titles Act 1981, s 34.
^[3] Land and Titles Act 1981, s 34.
^[4] Land and Titles Act, s 71.
^[5] Penaia II v Land and Titles Court [2012] WSCA 6 at para 16; Lavea v Kerslake [2015] WSCA 3 at para 39.
^[6] Constitution, art 4.
^[7] An application for a declaratory judgment by the Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter Day Saints (Unreported 22 November 2000, Sapolu Chief Justice; 2009, Sapolu CJ).