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Tu'isila v Attorney General [2025] WSCA 9 (19 June 2025)

IN THE COURT OF APPEAL OF SAMOA
Tu’isila v The Attorney General & Anor [2025] WSCA 9 (19 June 2025)


Case name:
Tu’isila v The Attorney General & Anor


Citation:


Decision date:
19 June 2025


Parties:
TU’ISILA MALUFITI FAGASOAIA TU’ISILA (Appellant) v THE ATTORNEY GENERAL (First Respondent) & THE PUBLIC TRUSTEE (Second Respondent)


Hearing date(s):
9 June 2025


File number(s):
2024-04424


Jurisdiction:



Place of delivery:



Judge(s):
Hon. Justice Harrison
Hon. Justice Asher
Hon. Justice Young
Hon. Justice Roma


On appeal from:
Supreme Court of Samoa, Mulinuu


Order:
The appeal is dismissed.
The question of costs was not raised orally before us by the respondents. We will assume that given the undoubted sincerity of the appellant and the difficulty of the issues raised no costs are sought by the respondents, unless we hear otherwise.


Representation:
R Harrison KC and K Koria for Appellant
D Fong and V. Leilua for First Respondent
L Sio for Second Respondent


Catchwords:



Words and phrases:
“ownership of Namu’a Island” – damages and compensation also sought


Legislation cited:


Cases cited:
Ali’i & Faipule of Siumu District v Attorney-General [2010] WSCA 5;
Fagasoaia v Attorney General [2024] WSSC 80 (20 September 2024) [Supreme Court decision];
Mabo v Queensland (No. 2) [1992] HCA 23; (1992) 175 CLR 1.
Ngati Apa v Attorney-General [2003] NZCA 117, [2003] 3 NZLR 643;
Sia’aga v O.F. Nelson Properties Ltd [2008] WSCA 15.


Summary of decision:

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU


BETWEEN:


TU’ISILA MALUFITI FAGASOAIA TU’ISILA


Appellant


AND:


THE ATTORNEY GENERAL


First Respondent


AND:


THE PUBLIC TRUSTEE


Second Respondent


Hearing: 11 & 12 June 2025


Coram: Hon. Justice Harrison
Hon. Justice Asher
Hon. Justice Young

Hon. Justice Roma


Appearances: R Harrison KC and K Koria for Appellant
D Fong and V. Leilua for First Respondent
L Sio for Second Respondent


Decision: 19 June 2025


JUDGMENT OF THE COURT

Introduction

  1. This appeal concerns the ownership of Namu’a Island (Namu’a), a small island off the coast of Upolu. The Appellant, Tu’isila Maluafiti Fagasoaia Tu’isila, claims ownership of Namu’a and seeks declarations to that effect and damages and compensation.
  2. The First Respondent, the Attorney General, is joined for and on behalf of the Government of Samoa. The Government has registered title to Namu’a, and declarations are sought by the Appellant that the vesting and registrations placing the island in the name of the Government were unlawful, invalid and of no effect. It is also claimed that all former leases by the Government including a lease now held by the Second Respondent, the Public Trustee, joined as Executor of the estate of Salaevalu Tu’isila Ulberg is similarly of no effect.
  3. The Appellant’s claims were dismissed by Justice Tuatagaloa in a judgment of 20 September 2024.[1] That judgment is the subject of this appeal.

Overview of key facts

  1. The history of the title to Namu’a has been the subject of detailed dissection in the submissions of the Appellant, and we will discuss that history in due course. However we set out in broad overview some key events. We draw assistance, throughout this judgment, from Justice Tuatagaloa’s analysis of the extensive facts, and a detailed chronology with references provided by counsel for the Appellant, Mr Harrison KC, which has been most helpful.
  2. In Sia’aga v O.F. Nelson Properties Ltd, the Court of Appeal set out a widely accepted judicial classification of the historic phases of rule in Samoa.[2] The division is Indigenous rule (pre-European), the Government (sometimes referred to as Kingdom) of Malietoa (1881 – 1889)[3], the Condominium (1889 – 1900), the German Protectorate (1900 – 1920), the New Zealand Trusteeship (1920 – 1962), and the sovereign state of Samoa from 1962 onwards. The story behind this appeal goes back to 1873, during the period known today as the Indigenous rule of Samoa.
  3. It is uncontested that in 1873, Namu’a was owned by Tu’isila of Mutiatele on behalf of his family. Tu’isila was an ancestor of the Appellant, and is also an ancestor of Salaevalu Tu’isila Ulberg whose estate is represented by the Second Respondent as Trustee.
  4. On 24 November 1873, the Tu’isila entered into a short written agreement to lease the island with three Europeans, one of whom was a German called “Peter Laban”. Mr Laban appears to have occupied the land until his death in 1891. It was then occupied by his son, William Laban who was in possession of the island in 1895 when its ownership came to be judicially determined.
  5. We will discuss events through the 1880s and 1890s in more detail later in this judgment. Central to the history of this early period is an order of 2 October 1895 made by Ide CJ of the Supreme Court of Samoa under the number “167”, declaring, according to a transcription of the original documents, “William Labaw of Naumua off Aliepata Upolu Samoa settler” proprietor of “the island of Naumua”. It appears obvious and to be uncontested that, whether as a result of inaccurate spelling or issues with the legibility in relation to the original document, “William Labaw” was Peter Laban’s son William Laban. As will be seen, the lawfulness, validity and effect of this order is very much contested by the Appellant.
  6. At some stage during 1895 the then Tu’isila occupied Namu’a for an unknown period. He did so despite efforts by Mr Laban to get back occupation. The outcome of this struggle for possession is not known exactly, but from the limited documentation available, it seems likely that Tu’isila evicted Willim Laban from Namu’a but eventually possession was recovered by William Laban. As will be set out later, it also seems likely that William Laban mortgaged the island to a German company DH and PG. The certain history of possession of the island after 1895 and during the 20th century cannot be stated with certainty, but Tu’isila does not appear to have had possession for most of that period, and does not have possession now.
  7. Following the end of World War I and the Treaty of Versailles, the governance of Samoa was transferred from Germany to, ultimately, New Zealand. On 19 November 1921 there was an entry on the Land Register showing “His Majesty the King” as owner of Namu’a. This remained the position until the land was transferred to the Independent State of Samoa in 1962 which remains the registered owner. The lawfulness, validity and effect of registration in favour of the King and the registrations that followed are also very much contested by the Appellant.
  8. The island has been subject to a number of leases. The most recent was a lease entered into by the Government of Samoa to Mrs Ulberg expiring on 30 June 2035 with a right of renewal for a further twenty years. The rent is ST$800 per year. It is uncontested that Mrs Ulberg’s father held the title of Tu’isila. However, Mrs Ulberg recognised that the Appellant is the current holder of the title Tu’isila in an affidavit filed on her behalf of 1 March 2019. In that affidavit she supported the Appellant’s claim and expressed her view that the Tu’isila family are the rightful owners of Namu’a. However she has since died, and her heirs do not support the Appellant’s claim and seek to maintain their lease. This is why the Public Trustee as Trustee of Mrs Ulberg’s estate now opposes the Appellant’s claim.
  9. It is necessary now to go back to 1873 and trace the history of the claims to the title of Namu’a. There is, of course, no living person who is able to attest to those early events of well over one hundred years ago, nor indeed a record of anyone who even spoke to such persons. While a surprising amount of historical documents have been found, it is clear that there are many others that have not, including some relevant parts of the German Land title register known as the Grundbuch. The documents referred to are largely in handwriting, and in English or Samoan, and the transcriptions and interpretations that we set out may on occasions be open to differing readings or interpretations. Unless a differing reading or interpretation is of high relevance we set out the words as we read them, doing our best with the original documents, transcriptions and interpretations provided.
  10. We regret the length of the consideration of the old recovered documents that follows in the next parts of this judgment. Those documents were the subject of submissions before us, and to do justice to the careful and extensive arguments put to us relating to them it is necessary to go through them with care. They were presented to us in a bundle, with no objection taken to their admissibility save for some submissions referred to below. They are relevant as the Appellant’s argument that the His Majesty had no valid title in 1920, and the State of Samoa has no valid title today, depends on how those documents are interpreted.
  11. The English handwritten documents that we have been provided have been conveniently transcribed in printed form. As we have gone over the documents and checked the transcriptions against originals, we have found some of the transcriptions to be incorrect and have used the original handwritten words.

The period from 1873 to 1890

  1. Following the agreement to lease of 24 November 1873, Peter Laban appears to have become accepted as the only lessee of Namu’a and the other two lessees do not appear in the documents that are available. Some documents indicate that Peter Laban was interested in some land in Upolu known then as “Vanuvanu”[4] (or variations on that spelling), which he had acquired or had an interest in with one William Cowley. There is also a suggestion that by 1882 there was a “quarrel” between Mr Laban and the then Tu’isila known as “Ekoke” or “Ikoke”, the Tu’isila with whom Mr Laban had entered the lease having died.
  2. On 9 October 1882, the Imperial German Consul General Zembsch recorded in the introductory words of a handwritten document that he and “the Judge, appointed by the King and the Government of Samoa” had heard the “dispute case” between Peter Laban and Ikoke as to the ownership of Namu’a “which was offered by Tuisila Matagi to Peter Laban by agreement for a sum of $75.00”. The ruling appears to have been that of what was known as a “Mixed Court” presided over by the German Consul sitting with two Samoan matai.[5] The original document was written in Samoan, and appears to have the signature of the Consul General and up to four persons with single Samoan names, although it is impossible to confidently say who signed.
  3. The ruling states that the “Tuisila family will pay the balance of $42 today to make up the $100 to be paid by 18 October 1882” to Zembsch, and $30 to be paid to Peter Laban by 8 November 1882 “towards the development of Namu’a”. Peter Laban’s possession of Vanuvanu was not to be interfered with and should the “Tuisila family” not pay the $42 and $30 by the due date, “then the land of Namu’s will pass to Peter Laban” (original spelling). There are then references which it is hard to put in context to certain high chiefs investigating to see if any of their people owe money to Peter Laban, and that Peter Laban “will not rest,” (a better translation might be ‘enjoy peaceful possession’), “until he is paid the money debt to him”. These sums may be different from the sums of $42 and $30 referred to elsewhere (see further reference at [17]).
  4. This ruling might be seen as indicating that Tu’isila owed Peter Laban $75.00 and that Peter Laban had been offered Namu’a for that sum, presumably as security for the debt.
  5. In terms of the documents available there is then a part of a handwritten document recording that on 9 October (no year is shown) a complaint was heard about Namu’a, it would seem, by the Mixed Court “which had been ... [words missing] ...gaged by Tu’isila Matagi to Peter Laban for $75”. Beside a page, which appears to be ripped on its right hand side, there appears, in the margin, two written entries that $42 and $30 “has been paid on 17 October”. These two margin entries are signed “Zembsch”.
  6. Although, for reasons that will become apparent we do not consider the issue of repayment of the debt of $75 to be determinative of what happened in the years that followed, unlike the Supreme Court we are satisfied that these entries in the margin show that the $75 debt owed by Tu’isila was paid. The handwriting appears to be identical to that shown in other documents of Consul General Zembsch, in particular the writing of the letter “Z” with a line through the stem of the letter and other identical distinctive lettering.
  7. The judge thought that there was no evidence that the money referred to in the margin notes went to Peter Laban, but despite ongoing communications about their affairs there is no further reference to this sum of $75 being owed. This is consistent with repayment. We accept Mr Harrison KC’s submission for the Appellant that the evidence should have been admitted under s 129 of the Evidence Act 2015 as “ produced from proper custody” and “prima facie evidence of the document, unless the contrary is proved”. Even without the application of this section the entries seem to us to be admissible and reliable. It seems to us that the dispute between Tu’isila and Peter Laban went on to other different contentious issues, the $75 having been paid as recorded.
  8. There is then a letter of 18 April 1883 to King Malietoa from the Consul General, in which there is reference to both the claim of Mr Laban to Vanuvanu and “W. Cowley”. Of more relevance is the statement in the letter that “...nor have the debts owing to him [Peter Laban] by Samoans been paid”. There are also references to Peter Laban still living on Namu’a and being allowed to remain until “...other the other parts of the agreement have been carried out”. There is reference to how “Peter Laban has spent much money and labour” on Namu’a “...in clearing the land, making the breadfruit trees bear...” and by doing other things on the land including laying stone foundations for a house and making a stone embankment on the beach. It is said “...I think it right that Peter Laban should be protected and the matter settled quickly and fairly”. It is stated that if Peter Laban was required to wait for resolution of the dispute and has built a new house to live in during that time “...then he will have new claims for compensation if he has to give up again the island of Namua”.
  9. We interpret this letter as most likely referring to different debts than the $75 given the reference to “Samoans” and not “Tu’isila”, and to be setting the scene for a further claim to Namu’a by Peter Laban.
  10. There is then a further letter of 7 December 1883 from the Consul General to the King. It is stated that it continues to be Peter Laban’s wish to have ownership of Vanuvanu. If he is not to get Vanuvanu then “the land of [Namu‘a] should therefore pass to Peter Laban forever”. The letter has a threatening tone in that it appears to be holding the ownership of Namu’a by Peter Laban as something that will happen if his demand for Vanuvanu is not met. It ends “...if there is no ending soon to this, I will honour the ownership of Peter over [Namu’a] forever”. The emphasis by use of italics is in the original letter. This was followed by the first page of another apparently threatening letter to similar effect sent by the Consul General to the King, dated in script that is difficult to read but appears to be 21 February 1884.
  11. This is followed by yet another letter, it would seem to the King, from an unidentified person in German. This letter generally follows the wording of the earlier letter of 7 December 1883, but in more polite terms, while still threatening to protect Peter Laban’s ownership of Namu’a “forever” if he does not receive the title deed for Vanuvanu “...and the debts are not paid”. This is followed by a letter of 1 March 1884 from the Consul General to Peter Laban which confirms a promise that if the Samoans do not give him title to the land at Vanuvanu and they do not pay debts owed to him, the “Imperial Consulate will protect your possession of [Namu’a] forever”.
  12. Following the correspondence of 1884 the correspondence that is available stops and there is no more for the rest of that decade. The next development of relevance is some six years later when the General Act of Berlin (the Act of Berlin) was passed, coming into effect on 12 April 1890.

The period from 1890 to 1920

The Act of Berlin 1890

  1. The Act of Berlin was entered into between the governments of the United States, Germany and the United Kingdom. It was negotiated at a high level and plenipotentiaries are recorded as including the former United States’ envoy to the German Empire, the Minister of State for Germany and the United Kingdom Ambassador to Germany. The Government of Samoa is not referred to as a specific plenipotentiary or party and there is no provision for its signature, but it is recorded at the beginning of the printed version that it was “Assented to by the Government of Samoa April 19 1890”, and it was stated in the line above that it had come it had been “entered into force April 12 1890”. Later letters from King Malietoa to the Chief Justice refer to the King having signed “the Treaty”, (clearly the Act of Berlin).
  2. The Act of Berlin is introduced by a statement that the three nations wish to provide for “...the security of the life, property and trade of the citizens and subjects of their respective Governments residing in, or having commercial relations with the Islands of Samoa.” A wish is expressed to avoid all dissension between “...their respective Governments and the Government and people of Samoa...” while there is reference to promoting as far as possible “...the peaceful and orderly civilisation of the people of these Islands...”.
  3. Declarations are made respecting the “independence and neutrality of the Islands of Samoa”, and the establishment of a Supreme Court of Justice and defining as its jurisdiction, the titles to land in Samoa. There are declarations respecting titles to land “...restraining the disposition thereof by natives...” and providing for the investigation of claims and for the registration of valid titles. Under Article III a single judge is to be appointed who is to be styled the Chief Justice of Samoa and “His decision upon questions of his jurisdiction shall be final”. Under Section 10 of Article III the “practice and procedure of Common Law, Equity and Admiralty, as administered in the courts of England, may be—so far as applicable—the practice and procedure of this Court”.
  4. Article IV of the Act of Berlin is of particular relevance to what followed in the 1890s to Namu’a. At Section 1 it is provided that “...the native Samoans may keep their lands for cultivation by themselves and by their children after them...” and that all future alienation of lands to foreign citizens or subjects, whether “...by sale, mortgage or otherwise...” shall be prohibited, subject to two exceptions which are not relevant to this appeal. Sections 2 and 3 set up a Commission which is to give public notice that all claims by foreigners to any title or interest in lands in Samoa must be presented to the Commissioners, providing to the Commission certain stipulated information. (the Land Commission). Section 4 provides that the Land Commission must investigate all claims of foreigners “...and to report to the Court in every case the character and description of the claim...”.
  5. Sections 6, 9 and 10 of Article IV are of particular relevance to the events that followed in relation to this appeal, and we set them out in full:

Events after 1890

  1. It would seem that at a date before late 1891, Peter Laban brought a claim to the Land Commission as a “Statement of Claim by Alien” under number 134. The undated document is of some importance as it appears to begin the process that led in 1895 to Peter Laban’s son William obtaining an order that he had title to Namu’a.
  2. In this document Peter Laban described the land to which he was making a claim as the island of Namu’a and stated that its size is 20 to 30 acres. The title or interest claimed was “mortgage for about $300 debts for copra and merchandise”. It is stated that Peter Laban is in actual possession, and that the land was first occupied in 1872. It is stated that it was occupied “originally as a lessee, after the fixed [unclear] months as mortgagee”. As the document progresses under the header of “The name and residence of any adverse claimants” it is stated that they are not known. Under the header of “List of all deeds and documents concerning the claim handed over to and received by the Commission”, there is a sentence that is difficult to follow. As best we can read it, it refers to a “sentence of the German Samoan Court dated 9 October 1882” and that a list of mortgage debts will be forwarded as soon as possible through the “I.G. Consulate” (see para 14 above). The initials can be taken as referring to “Imperial German”.
  3. The document goes on to state that the consideration paid by Peter Laban is “The abovenamed sum of $300” and that in relation to whether there are registered deeds and documents in any Consulate, it is stated that the “above sentence of 9th October 1882 registered in the Imperial German Consulate”. There is no copy of such a registration.
  4. On 20 February 1892 King Malietoa wrote in typed English to Chief Justice Cedercrantz, the Judge appointed as Chief Justice of Samoa under the Act of Berlin, objecting to land commissioners assuming to do the work of the Chief Justice. This was a general objection and did not refer to Namu’a or any other specific land claims. The King stated the commissioners were not only examining the foreigners’ titles but judging them and deciding them. He stated “I am astonished at this new thing. It is not right. It is not according to the Treaty I signed”. He stated that Samoa could not accept the judgments of the Land Commissioners. The commissioners were in no way connected with the country and there was no Samoan commissioner. He begged the Chief Justice to make known to all Samoans that they have no injustice to fear, and that the commissioners were not right.
  5. This was followed by a declaration of Cedercrantz CJ of 23rd February 1892 stating to whom it may concern that “the Supreme Court of Samoa shall make final decision upon all claims to land and Samoa”. This had been preceded by a published letter from the Chief Justice to the Samoan Land Commission asking it to adapt itself to his opinion and to alter its present mode of procedure. These documents are followed in the bundle by a printed copy of a letter from the Marquis of Salisbury to Count Metternich stating that Her Majesty’s Government was of the opinion that the final decision upon all disputed claims was intended to rest with the Court and that the view taken by the Chief Justice was correct.

Land Commission Claim

  1. The next document of relevance is a handwritten document dated 26 July 1892 and headed “Before the Chief Justice” and then “The claim is No 133 and 134”. (There is an element of doubt about claim No 133 as unlike claim no 134 we do not have the 133 original claim). This is then followed by a statement “W Laban sworn – Re 134”. It is a statement of William Laban who states he is the son of the Laban who lived at Namu’a. He states that his father died about nine months ago. He, the son, has lived on Namu’a for over 20 years and is 29 years old now. He states that when he first went there, there were about 40 to 50 coconut trees and a few breadfruit trees. It is also said that Namu’a had just “...22 or 24 acres of good land... The rest of the land is iron rocks. That is on the [unclear] East side. It goes down precipitously.” He states that his father planted coconuts on the whole of the fertile land and half are now bearing with the others mainly bearing. There are also planted breadfruit trees and there are houses. His father built a wharf.
  2. Thus, it would seem that the claim no. 134 lodged in late 1891 by Peter Laban, was followed some nine months after his death by a reiteration of claim 134 and a reference to another claim, no. 133.
  3. There is then, in the bundle, an absence of produced documents for over a period of two years through to 1894. The next document available is dated 17 October 1894 and is headed “Native Samoan Objection to Alien’s Claim”. This document was apparently lodged with the Land Commission. The number of the claim objected to is no. 134 and the objection is from “Tu’isila and Uo of Aleipata”. The name of the land included in the claim objected to is stated to be Namu’a and in the reasons for objection it is stated (original spelling):

This document is signed by “E. W. Gurr” who is described as “Natives’ Advocate”.

  1. In the documents available this is followed by a report from the Samoan Land Commission on claim no. 134, dated 18 October 1894. It is signed by three Commissioners. It is stated that the claimant, Peter Laban, has title to “the same” by “Judgment of a mixed Court returned herewith and under the terms of the said Judgment is the lawful mortgagee thereof”. It is stated that the consideration paid by the claimant was advances to the amount of $300 which was a sufficient consideration. It is stated (original spelling):

Supreme Court Order

  1. There is then some eight months later a document which appears to show (original spelling) “Tuisila and Uo” as appellants and W. Laban as respondent. It shows that a “W Laban” had applied for a hearing in the Supreme Court of claim no. 134 on 22 June 1895. By this time Cedercrantz CJ had been replaced by Ide CJ.
  2. This was followed or accompanied by a document of the same date of 22 June 1895 in the matter of Application No 134 and headed “Application for Rehearing”, filed also in the Supreme Court. The “Appellants” are stated to be Tu’isila and Uo, and it is stated they are native Samoans and the owners of the island of Namu’a. It is stated that the conveyance (presumably the mortgage) upon which the claimant bases his claim to the island has been released and that the claimant will not give up. It is stated that the title of the claimant is invalid under the provision of Article IV of the Berlin General Act. The Appellants “pray this Honourable Court will order the respondent to immediately surrender the said Island to the Appellants”. It is signed by Tu’isila and Uo by their attorney E.W. Gurr. This may mean that the mortgage debt has been repaid and that William Laban should give up the land. The “conveyance” referred to is not available.
  3. Then a document headed Land Claim 134 dated 17 July 1895 records that in the “rehearing” of the claim the Court decided not to comply with the request that the Consul General be asked to furnish certain documentary testimony, and this is followed by a further document before the Chief Justice headed “Rehearing of Claims Nos 133 and 134”, and that Mr Gurr, a natives advocate, appeared as natives advocate for the objector, presumably Tu’isila, and that Mr Gurr opened his case. A Mr Carruthers replied. A further hearing was adjourned until 26 July 1895.
  4. On 14 September 1895, the Samoa Weekly Herald published a report of a Supreme Court hearing on 10 September 1895 of “P. Laban’s claim 133”. It read (original spelling):
  5. This shows therefore a notable development of the Laban claim. From the objection of 22 June 1895 it appears to be recognised by the parties that the issue between William Laban and Tu’isila is about title to Namu’a, rather than payment or recognition of a mortgage, and that Mr Laban’s claim appears to be based on his belief that he had good title “by reason of transactions that occurred in 1892” and had improved the land relying on that belief. It is to be noted that although we have referred to quite a number of documents which relate to claim no. 134, in relation to claim 133 no statement of claim has been found and produced in the bundle of documents (as stated in para [35], and no objection by Tu’isila has been found and made available. Both these documents presumably existed and the above quoted report appears to confirm Peter Laban’s claim to Namu’a upon payment of $400. There are no documents indicating what the claim relates to and there is no evidence of an earlier hearing in the Supreme Court although that reference may be to an earlier hearing before the Land Commission.
  6. What is clear from the above quoted report in the Samoa Weekly Herald, which is one of a number of printed reports of Supreme Court orders, is that the Laban title is confirmed subject to the payment of $400 and costs by William Laban. He appears to have become the owner subject to a payment.
  7. The next document in sequence is the most important of all. It is a handwritten order of the Supreme Court of Samoa dated 2 October 1895 which reads (original spelling):
  8. There could be arguments about some of the words in the transcript, given the faintness of the handwritten original. But the words declaring “William Labaw” (presumably Laban) proprietor of Namu’a are clear. On the face of it, this is a valid order of the Supreme Court declaring that William Laban is the proprietor of Namu’a. There is no reference to a requirement imposed on William Laban to pay the $400 which it seems from later correspondence had been paid but not accepted by Tuisila.

Attempted Enforcement of Order

  1. There is then a letter of 13 November 1895 from Chief Justice Ide. The letter is informative in relation to the dispute between Peter Laban and Tu’isila. It says that many years previously Peter Laban, under some arrangement with “native Samoans” the precise character of which is uncertain, came into possession of the island of “Nunua”, which seems to refer to Namu’a. It was stated that Peter Laban supposed that his title was good and during the remainder of his life he resided on the island, erected permanent buildings and converted it, by his labour, into a productive property. It is stated that the Law Commission decided that Peter Laban’s title was imperfect and that it should be rejected upon the payment to him of a certain sum of money by the objector. Tu’isila was the objector and had refused to make payment and applies for a rehearing in the Supreme Court. That Court had found there were strong equities on both sides and the case was postponed for several months to enable the parties to reach an amicable arrangement. This did not transpire and the case came on for a final hearing.
  2. The letter goes on that in that final hearing it was decided that under s 10 of Article IV of the Act of Berlin that “Laban’s title should be confirmed upon payment of $400”. It is recorded that this sum was immediately paid into the Court. Tu’isila did not attend the Court in person but was represented by his relative Uo and by the Natives’ Attorney Mr Gurr. The letter reports that Tu’isila refused to accept the money and violently drove William Laban, the son and heir of Peter Laban, from the island, stating that he would shoot him and his family if they ever returned. Remarks are made about Tu’isila being a “desperate character” who had deliberately shot his own nephew recently and was sufficiently desperate to execute his threat against William Laban. He lived on Upolu directly opposite Namu’a.
  3. The letter reports that William Laban had since been living at his own expense in Apia and his family did not dare return home. Attempts to arrest Tu’isila had not met with any success. It records that Tu’isila’s father “is a member of the Samoan government”. The Chief Justice refers to various options to try and recover the land from Tu’isila. He concludes that because of the action being so connected with the general peace of Samoa, he thinks the Court should not act further without the aid and advice of the Consulate and the President. He appears to propose a conference concerning this.
  4. The next document is a typed report from Ide CJ to “Consuls” on 16 November 1895. It states (original spelling):
  5. This had been preceded by a paragraph where the Chief Justice had stated that the proposal to use force from a warship to hold boats from Tu’isila’s village as a condition for Tu’isila being given up was agreed to by “M”, possibly referring to King Malietoa. However, it was stated that “M” (presumably King Malietoa) would not agree to a bombardment of the village, as it would be too serious a move which would be a wrong act against the villages, and too severe for the crime. It would probably upset the uneasy peace. There is also a typed entry dated 2 December 1895, possibly from the US Consul General, recording that an attempt to arrest Tu’isila for defying the mandate and authority of the Supreme Court was being prepared, and the Supreme Court wanting to get a warship to enforce the order. It would seem that this exchange led to an inconclusive outcome. There was a reference to Tu’isila being charged with murder but that was not under the jurisdiction of the Supreme Court.
  6. On 20 November 1895, there was a letter from the Chief Justice to the German Consul General referring to a conference that had been held in the German Consulate, and that adequate arrangements had been made for a suitable force to proceed. It was hoped that seven revolvers with ammunition would be provided. There was a proposal to use a ship of war to assist in recovering the island, but that Captain Wincklair had refused to provide his ship, the Bussard, as had been proposed. The Captain explains that there were no special maps of the eastern coast in that area and that a deep sea going vessel would be at risk.
  7. There is also a letter from the Consulate General of the United States dated 7 December 1895 to the Washington Assistant Secretary of State, where the Consul, James H Mulligan, explains that it would not be appropriate to offer a reward for Tu’isila dead or alive. The Consul was not prepared to risk women and children being sacrificed or destroyed as a result of a punishment for offences with which they were not in any way connected.
  8. From this point there are no further relevant documents through to 1919. We are left to speculate as to how the impasse between William Laban and Tu’isila in relation to occupation of the island worked out. It seems likely that William Laban recovered possession given that, as is referred to later, he appears to have taken out a mortgage on the land. There is also a newspaper article from January 1896 stating that “Tuisila gave over possession of the island of Aunnu”, (original spelling). There is no suggestion that Namu’a also was called “Aunnu”, although this may have been an uncharacteristic typing error given that there is no evidence of an island called Aunnu.

Conclusion as to the events of 1895 – did William Laban get title to Namu’a?

  1. It is our interpretation of these events that by 1895 there was a clear dispute between William Laban, as descendant and heir of Peter Laban, and Tu’isila. Both sides were heard during the course of the dispute. It began with William Laban appearing to claim an interest in the Island as mortgagee, but developed into a claim for ownership. This appears to have been clearly understood by Tu’isila who objected to the Laban claims and was represented.
  2. In the Supreme Court decision of 10 September 1895 in relation to claim 133 and its order of 2 October 1895 in relation to claim 134, both of Laban’s claim 133 and William Laban’s claim 134 were upheld. The order made on 2 October 1895 was specifically that William Laban was the proprietor of Namu’a.
  3. Mr Harrison KC strongly submitted that the events through this period were legal nullities that could not be relied on by the First Respondent as demonstrating divestment of ownership of Namu’a from the then Tu’isila, and far less a complete abrogation of the base nature of title. Neither the Land Commission decision nor Ide CJ’s order in Court Grant No. 167 could be relied on as conclusive as to the matter of ownership. The point is made that under the Act of Berlin, William Laban’s title to Namu’a could not operate as, or constitute a guarantee of, valid title of the type that might arise under the Torrens title system. He also argued that the order of Ide CJ in Court Grant No. 167 was not admissible under s 40(1) of the Evidence Act 2015. The ownership of Namu’a is not a fact in issue. The order of Ide CJ is not a judgment in rem or gives rise to the doctrine of res judicata or issue estoppel.
  4. In seeking title William Laban apparently argued that he and his father had undisputed possession and continuous cultivation of Namu’a for ten years or more, and could claim a valid title by prescription to the lands so cultivated, and seek an order for the registration of the title. It was also apparently argued that the land had been acquired in good faith and had been improved or cultivated upon a title which was found to be defective. He appears to be seeking that the title could be confirmed under the Act of Berlin.
  5. The available documents appear to show that the parties were adopting the process required by the Act of Berlin in relation to the claims of foreigners to Samoan land. There was to be an inquiry before the Land Commission. A report was prepared and provided to the Chief Justice. The Chief Justice can be taken to have been properly appointed in accordance with the Act of Berlin. He proceeded to hear both sides of the argument, from William Laban, and from the then Tu’isila. Under the Act of Berlin there was a legitimate procedural pathway for Peter and William Laban to follow to obtain title to Namu’a under sections 6, 9 and 10, and an order was made at the end of that process.
  6. Ide CJ’s order of 2 October 1895 specifically refers to Article IV of the Act of Berlin. In his letter of 13 November 1895, he stated that when the case came on for final hearing it was “... ultimately decided under Sec.10 of Art.IV of the Act of Berlin that Laban’s title should be confirmed upon payment of $400.” The rationale of Ide CJ’s decision may well be that what started off as a mortgage came to be seen by Peter Laban and his son as ownership. A view that is perhaps understandable given the judgment of the Mixed Court and the communications of the German consul. The Land Commission treated his titles as a mortgage which he had to discharge if paid what was owed. The Tu’isila, not being willing to pay what was owed, Ide CJ took the view that William Laban had a title, but a defective one, which he could validate which he did.
  7. Section 10 of Article IV of the Act of Berlin, set out above, specifically particularises that in cases where land had been acquired in good faith and improved or cultivated upon a title, which was found to be defective, that it could be confirmed. Mr Harrison queried whether the land could be said to have been acquired in good faith. However, it is impossible for us, 135 years on, to second guess or review the decision of Ide CJ. We are effectively being asked to rehear Tu’isila’s case without the bedrock benefit of hearing argument from both sides and all the available evidence to enable us to reevaluate the merits through a contemporary jurisprudential lens.
  8. There is no doubt that the Land Commission and Supreme Court had a factual basis for accepting that Peter Laban had a right to occupy the land, had improved it, and cultivated it. We cannot know the exact history of his and his son’s 23 years of occupation. The decisions of the Supreme Court, on their face, appear to have been made following the procedure set out in the Act of Berlin, being an inquiry by the Land Commission, and both sides being given the opportunity to be heard before the Supreme Court. There was no evidence of fraud, and indeed Ide CJ appears to have been carrying out his judicial duty of applying the legal principles clearly enunciated in the Act of Berlin to the facts as he found them. Under the Act of Berlin, his decision was final. Mr Harrison accepted that Tu’isila had no legal right of challenge under the Act of Berlin.
  9. With so many documents missing and the effluxion of time it is impossible to reconstruct with any accuracy where the merits of the dispute lay. What is clear is that there was a dispute, a legitimate procedure under the Act of Berlin appears to have been followed with both sides being represented and heard, culminating in the Chief Justice, as he had specific jurisdiction under the Act of Berlin to do, ordering that William Laban had title.
  10. It might be said that at this time of colonial rule there was a gross inequality of bargaining power between Samoans who were used to their system of customary land title, and Europeans who were imposing on them a European system. However any perceptions of general unfairness arising in the colonial era must take second place to judicial recognition of the validity of decisions made under the law that it is accepted applied at the time. They have been in place for so long that to doubt their general validity because of the colonial “inequality of arms” would be to disrupt political fact and the legal stability of title. As we set out below, this situation has been long accepted in Samoa.
  11. We see no benefit in applying the provisions of the Evidence Act. A Court today to work off the best evidence available, assessing its reliability on a document-by-document basis. We note that under s 4(2) of the Evidence Act 2015, all relevant evidence is admissible in a proceeding except evidence that is inadmissible under that Act, or any other enactment, and is excluded under that Act or any other enactment. At s 4(4) evidence is to be excluded if its probative value is outweighed by the risk of unfair prejudice on the proceeding or needless prolongation of the proceeding. The probative value of the order of 2 October is great.
  12. We do not consider that s 40 of the Evidence Act 2015 is of assistance. The section relates to the admissibility of evidence in relation to facts, not the admissibility of a Court order. The judgment is on the Court form and properly signed by a person who appears to be the Registrar. It is a matter of record and part of the law of Samoa. Unusually in this case there is corroboration that it is an order of the Court to be found in the letter of Ide CJ of 13 November 1895, quoted above. We note that s 129 of the Evidence Act provides that when a document that is more than 20 years old and produced from proper custody, it is prima facie evidence of the document unless the contrary is proved.
  13. We are entirely satisfied that the order of 2 October 1895 is a bona fide order of the Samoan Court with jurisdiction in 1895, relevant to this proceeding, and admissible as such. We are satisfied that this was a judgment in rem. This is because it declares the status of Namu’a Island. The function of the Supreme Court under the General Act of Berlin extended, under Art IV, section 7, to the “provision of a complete registry of all valid titles to land in the Islands of Samoa which are or may be owned by foreigners”. Proceedings under section 10 could (and in this case did) result in a “title being confirmed”. It is stated in Laws of New Zealand that orders of this kind are properly seen as being in rem.[6]
  14. It is also said in Laws of New Zealand that as regards persons domiciled and property situated within the jurisdiction of the Court pronouncing the judgment, a judgment in rem is conclusive against all the world.[7] This principle applies regarding whatever the judgment settles as to the status of persons or property. It also applies regarding whatever the judgment settles as to the right or title to the property or whatever disposition the judgment makes of the property itself or of the proceeds of sale of the property. In other words, all persons, whether party to the proceedings or not, are estopped from averring that the status of persons or things, or the right or title to property, is other than the Court has declared or has made it to be by such a judgment.

Authority supporting our conclusion

  1. In the constitutional debates of 1960 that led to the passing of the Constitution in 1962 it was stated by the late Honourable Tupua Tamasese Mea’ole:
  2. He later stated:[9]
  3. Any doubts as to the validity of this approach were put to rest in the decision of Sia’aga v O F Nelson Properties Limited where it was stated:[10]
  4. The following words in Sia’aga apply to the present case:[11]
  5. These principles were applied in the case of Ali’i and Faipule v Attorney-General.[12] In that case the efficacy in law of judicial determinations in both the condominium and German protectorate eras was recognised. It was stated at paragraph 17 of that decision that the Act of Berlin was signed with the authority of the Samoan government. It was stated:
  6. We also note Article 101 of the Constitution which states that all land in Samoa is customary land, freehold land or public land. It is in this context that not only Article 14 but also Article 102 (no alienation of customary land) were enacted. By virtue of the process we have outlined culminating in the order of 2 October 1895, Namu’a which was customary land, became freehold land. As Article 101(3) of the Constitution confirms, freehold land means land held from Samoa for an estate in fee simple. There is no question of Article 14 arising as this freehold island is legitimately in the name of the Samoan Government. Similarly there is no question of Article 102 applying.
  7. Mr Harrison referred us to cases such as Mabo v Queensland (No. 2)[13] and Ngati Apa v Attorney-General[14]. These cases refer to the underlying validity of pre-existing native title and rights, that have not been extinguished by a lawful process. We see them as irrelevant to the issue before us, which concerns a lawful process during the Condominium, which as set out above has been firmly recognised in Samoa as capable of giving rise to a valid title.
  8. The land therefore from 1895 was validly owned in accordance with the laws then prevailing in Samoa by William Laban. It is not certain whether William Laban actually resumed occupation of the land, but a finding on that issue is not necessary, and has not been suggested as a relevant matter by any party.

The period from 1919 to 1962

The New Zealand mandate

  1. On 28 June 1919 the Treaty of Versailles was signed. The government of Germany surrendered all right and title to the islands of Western Samoa and in pursuance of that treaty, the League of Nations conferred upon “His Majesty in right of his dominion of New Zealand” a mandate to govern Samoa for and on behalf of the League. The New Zealand Parliament and Executive Council, as a consequence, acquired the authority to exercise any jurisdiction initially held by Germany in Samoa. The New Zealand Parliament enacted the Treaties of Peace Act 1919 which, at s 5, conferred on the Governor-General the power to make, by Order in Council, “...such provisions as he deems necessary in New Zealand for the due and effective exercise of any jurisdiction or authority...” for the government of the islands of Western Samoa.
  2. The New Zealand Government then enacted the 1920 Samoa Constitution Order (the Constitution order) to realise the goal of the Treaty of Versailles. The preamble of the Constitution Order recorded the administration of the Territory of Western Samoa “...by His Majesty in his Government of the Dominion of New Zealand”. It is recorded that the Parliament of New Zealand could, by Order in Council, make laws for the peace, order and good government of Western Samoa. The Constitution Order by some 382 clauses, set out to do this. Part IX at clauses 258 – 273 related to land. There were two other orders of relevance to this claim, the Samoan Land Registration Order and the 1920 Samoan Crown Estates order. These were both enacted in the month before the enactment of the Constitution order.
  3. The intention of the Treaty of Versailles, as recorded in the 1920 Samoan Crown Estates order, was to confer on the Allied Powers the right to “retain” all property owned by German nationals or companies. The division of land into Crown land, European land, Native land and Native title was set out in cl 258 of the Constitution Order. This can be seen as the predecessor of Article 101 of the present Constitution of Samoa, which recognises the holding of land in Customary, Freehold for an estate in fee simple, and Public title.
  4. Clause 268 of the 1920 Constitution Order provided that all land in Samoa which, at the commencement of the Order was held by Samoans by native title, was vested in the Crown subject to such native title. Clause 378 provided that His Majesty the King was declared to be the successor in title to all the property and proprietary rights of the government of Germany in respect of Western Samoa. It was also stated at cl 267:
  5. Further, at cl 376 it is provided that all rights, obligations and liabilities already existing under the former laws of Samoa shall continue to exist and be recognised, exercised and enforced accordingly. This plainly would have applied to rights to Namu’a. Under cl 376(2), in respect of matters where there may be any doubt, difficulty or injustice or a matter arising by reason of the transition from the previous legal system, the High Court and other courts in Samoa or in New Zealand were empowered and directed to exercise the jurisdiction in accordance with equity and good conscience and not otherwise.
  6. Also relevant was enactment of cl 7 of the Samoan Land Registration Order of 1920 which provides in relation to European land that it should be the duty of the Registrar to include such European lands or European interests in the Land Register. It is stated at cl 8 that no instrument of title shall in any manner affect the legal title to land in Samoa unless it is registered.
  7. Clause 378 of the Constitution Order provides:
  8. Finally, of relevance is the Samoan Crown Estates Order 1920 where it is noted that the Treaty of Versailles provided that the Allied and Associated Powers shall be entitled to retain all property belonging to German nationals or companies controlled by them within the colonies, possessions and protectorates of those powers. Clause 2 provides that all land belonging to any German company would vest in “His Majesty in right of the Government of New Zealand free from all encumbrances...”. Under cl 3 of this order there is provision for the Minister of External Affairs, if satisfied that land belonged to a German and that vesting of the land in His Majesty was expedient, to make an order vesting such land “absolutely in His Majesty”.
  9. Based on cl 267 of the Constitution order it might be expected that any new title would be in the name of William Laban, or any successor in title if he was not a German citizen. As we have set out, the land was vested in him in 1895, and if Peter Laban had been a German under cl 5 of the Samoan Estates Order, his son would have been a “German”, (although his mother was Samoan). Assuming he was a German, clause 378 would not apply unless his land had been transferred or taken over by the German government. Depending on what happened and assuming he was a German his land might have passed to His Majesty in Right of New Zealand under cl 3 of the Samoan Estates Order, which we discuss below, or if D.H and P.G as a company had taken title, cl 2 could have been applied.

What actually happened to the title to Namu’a following the 1920 New Zealand Mandate?

  1. After 1895 the next document relating to the title of Namu’a that is available today and in the Bundle of Documents is the entry in the Western Samoa Land Register on 19 November 1921. The entry shows “His Majesty the King” as owner of the island of Namu’a and records that the land is “Subject to a mortgage securing the sum of 12,000 marks in favour of the D.H. & P.G. (fuller Memorial on Court Grant)”. It is stated:

It would be most surprising if the Crown was liable on a mortgage to D.H and P.G, but that what the Register records.

  1. There are a number of observations that need to be made about this entry in the Register. First, there is no entry on the Register or other document that has been found that offers a direct explanation of how the land has come to be registered in the name of His Majesty, when on 2 October 1895 it was recorded as being vested in William Laban. That 1895 grant to William Laban is clearly recognised on the Register by a reference to the land being the whole of the land included in “Court Grant No. 167”. There is no explanation on the title or any other document that is available explaining the entry of the mortgage to D.H. and P.G. Counsel appeared to agree that D.H. and P.G. was a German company that had been prominent in Samoa and was amongst other things a lender.
  2. In the book ‘Modern Samoa’ by Felix M Keesing,[15] D.H. and P.G are described as a great firm which bought extensively in Samoa. There is a clue to the sudden appearance of D.H. and P.G in Mr Keesing’s book. He observed:
  3. Mr Harrison submitted that Namu’a could not have been validly vested in the Crown pursuant to cl 378 of the Constitution Order, or for that matter cl 2 of the Samoan Crown Estates Order 1920. We agree that cl 378 does not, on its face, apply as there is no evidence that Namu’a had been transferred into the ownership of the government of Germany. Clauses 2 and 3 of the Samoan Crown Estates Order do not obviously apply as the land was not owned by a company, and it does not appear to be land vested under cl 3 as private land belonging to a German to be vested in His Majesty. There was such an order made, but the island of Namu’a is not recorded as one of those vested lands.
  4. However, that does not mean at all that we should treat the entries on the registered title of 19 November 1921 as invalid or of no effect.
  5. The registration can be seen as being part of a chain of title beginning in the order of 2 October 1895 that we have discussed above, given the reference on that 19 November 1921 title to Court Grant No. 167 (being the 2 October 1895 order). It is impossible to say what circumstances have led to the land being vested in “His Majesty the King”, but there is no reason to believe that the process that led to the Crown being an owner was in any way illegitimate or unlawful. The fact of the chain of title from 2 October 1895 is recognised in the reference to Court Order No. 167 indicates a legitimate connection to William Laban’s title.
  6. Our rejection of the submission that we should assume that the title entries are invalid stems not only to the reference to Court Grant no 167. It is plain that there are other documents in existence that are no longer available. There is a reference to the Samoan Land Records – Volume 2 Folio 234 which appears to be a different number from the number of the entry of 19 November 1921. There may well have been a transaction in the years preceding 1921, possibly where William Laban transferred the land, subject to an existing mortgage to D.H. and P.G, to the German government. Another possible explanation as to what happened is that D.H. and P.G acquired Namu’a from William Laban, possibly utilising its position as mortgagee, and it that company became the owner of Namu’a, and the land under cl 2 of the Samoan Crown Estates order became the property of the Crown. However, if that were so, the relevant regulation mentioned on the title would not have been cl 378 of the Crown Constitution Order, but rather cl 2 of the Samoan Crown Estates Order 1920.
  7. We note that there is a reference in relation to the D.H. and P.G mortgage to “fuller memorial on Court Grant”. We do not have a copy of that Court Grant. It is quite possible that through some legitimate process William Laban’s title had been transferred to the German Government. Obviously the early twentieth century was a time of change and disruption.
  8. There appears to have been no protest by any person to the land being held by the Crown. This in itself supports a conclusion that the title entry is legitimate and valid. Further, the Crown, as owner proceeded to enter various transactions in relation to the land, and there is no document that casts any doubt on its ability to do so.
  9. In this regard, on 18 February 1926, the memorials on the title show that His Majesty the King entered into a lease for 40 years from 1 November 1925 to one R P Burking as lessee. Then there is an entry showing that on the 22nd day of a month that cannot be deciphered in 1927, Rudolph B Burking transferred the land to William Adolf Boderlow. Nothing is known of these transactions and it appears that no document has been found, save for the entries on the title.
  10. However, the lease transactions indicate that the Crown, seemingly without protest from any party, was acting as owner and that other parties were acquiring rights in relation to the land from the Crown. The various leases appear to be commercial leases to parties who, from their names, are possibly of German extraction. There is no suggestion of protest from the persons who held the title of Tu’isila. We note that Tu’isila in 1895 had no hesitation in objecting to title processes. He did not apparently do so in 1921.
  11. Given the sequence of events we that we have outlined, we see no basis for Mr Harrison’s submission that Namu’a had been wrongly classified, by the stroke of a pen, as land vested in the Crown free from native title. It was not in native title and there was no wilful stroke of the pen. In 1919 we can assume Namu’a was in legitimate European title, the validity of European title being expressly recognised in cl 267 of the Samoa Constitution Order as we have set out. In any event, given our acceptance of the valid title of William Laban, any irregularities in the early 1920’s can have only adversely affected William Laban (or his estate) and D.H and P.G, and cannot give rise to a claim by the Tu’isila.
  12. In relation to these events involving the creation of the new 1921 title we rely on the principle of omnia praesumunter rite esse acta; all things are presumed to have been duly done. We also rely on the approach to titles from the era of German control, set out in the debates that led to the 1962 enactment of the Constitution and the case of Sia’aga, referred to earlier in this judgment.

Events since 1962

  1. The next record of transactions relating to Namu’a was a declaration of forfeiture published in the Western Samoa Gazette on 6 August 1962. In that it was declared that William Adolph Boderlow, formerly of Apia Planter, had died and following his death no claimant for the lease of Namu’a could be found, and that therefore the Land Board of Western Samoa resolved his lease should be forfeited and revert to the government of Western Samoa.
  2. There is then a declaration of ownership of Namu’a island by the current Tu’isila, and on 25 October 1982, a decision of the Court of Lands and Titles of Samoa recording that in relation to the claim by the current Tu’isila that the family had reconciled and the petition was withdrawn by leave of the Court.
  3. The next relevant development shown on the title was the lease to Mrs Ulberg on 10 April 2015. During the intervening period there had been the passing of the Lands and Titles Act 1981 and the Land Registration Act 1992/1993.
  4. Ultimately the current Act, the Land Titles Registration Act 2008, was enacted. This provided for a modern Torrens systems of title in relation to European land. It is recorded at s 94(2) that the Land Registration Act 1992/1993 was repealed and that all entries, registers, notices, instruments, information, search copies and proceedings and generally all acts of authority which were made or originated under the Land Registration Act 1992/1993, which were in force on the date of the Act commenced, shall remain in force for all purposes.
  5. We are satisfied that the State of Samoa’s title to Namu’a existed and was in force as at 2008, and therefore remained in force. There is a new certificate of title now under the 2008 Act, and it shows the Government of Samoa as the registered proprietor of the land in fee simple. The only encumbrance was the lease to Mrs Ulberg. That is how the title appears today.
  6. The doctrine of indefeasibility is raised by the State as a defence to the claim. Although it is relied on by the State we have insufficient information about the relevance of a caution showing on the new title of 25 September 2017 to form any final conclusion whether the doctrine applies. That caution echoes the language of s 14 recording that the land might be subject to any existing titles, whether recorded therein or not in accordance with ss 14 and 15 of the Land Titles Registration Act 2008. The caution still appears to have had statutory force when this proceeding was filed[16].
  7. Further there is no need to resolve the issue of indefeasibility, finding as we do that there is a clear chain of title from 1895 down to the present time in favour, first of William Laban and after 1921 His Majesty and now the Government of Samoa.

Relevance of the passage of time

  1. As has already been outlined, the events that are focused on in relation to the question of whether a declaration should be made occurred, in the 1880s and 1890s and the early 1920s. All the events that have been the subject of extensive factual submissions from the Appellant occurred over a hundred years ago. The Land Register title showed first the government, through His Majesty the King, as the registered proprietor of the land. The lease transactions recorded on the title in 1925, 1927 and 1963 would presumably have had practical consequences that would have been evident to the Tu’isila of the time.
  2. However, through the period from 1895 through to 1981 there were no steps by the Tu’isila of the time to claim ownership of Namu’a. Although there was a claim made on 30 December 1981, that was settled on 25 October 1982 and appears have been a dispute between Samoan families. The settlement document relating to this claim indicates this was a family settlement, and the government was not involved. In other words, the only challenge to the government’s title by the relevant Tu’isila since 1895 was the statement of claim in this proceeding filed on 5 April 2019.
  3. We appreciate there was an inequality of resources when it came to the Appellant and his predecessors issuing Court proceedings, but by any standards the lack of any direct challenge to the government’s title for over a hundred years involves an extraordinary delay.
  4. It is the submission of Mr Fong for the Attorney-General that the inordinate delay is inexcusable, and that the defendants are likely to be seriously prejudiced by the delay. In support of its submission the Attorney-General relied on the New Zealand Court of Appeal decision of New Zealand Industrial Gases Limited v Andersons Limited.[17] However, that case quoted the relevant New Zealand rule relating to strike out and focused largely on delays following the filing of a statement of claim. Here the issue is not procedural delays in the proceeding itself, but rather the colossal delay in initiating any proceedings to challenge the government’s title.
  5. As this judgment has shown, there is prejudice arising because of the great lapse of time in this case. There is no complete documentary record of what happened. Key documents are missing and cannot be found. There is no firsthand evidence from deponents as to what happened. It is not known whether if the full record from 1890 was available, it would work for or against the case of the Appellant.
  6. However, we have already found that the Appellant’s case is not made out. It fails whether or not there has been fatal delay. Therefore, we do not propose taking the issue of delay any further, having noted it and briefly referred to some of the arguments. We have decided to avoid the artificiality of trying to construct what we might have done should we have found that the Appellant was entitled to relief.
  7. We therefore do not make any determination on the issue based on the claim of delay, and our decision and the comments made should not be taken as indicating that a defence based on delay would be upheld.

Limitations

  1. We have already dealt briefly with the issue of indefeasibility and delay.
  2. We have not dealt with the Limitation Act arguments, and given that the appeal will be dismissed on substantive grounds, there is no need for us to do so. Indeed, the Limitation Act arguments would involve us making assumptions as to the nature of the cause of action that could be successful. It would involve us reaching conclusions on matters of fact about the cause of action that arose, which given our finding that no claim has been established, would be a barren exercise. We therefore do not determine the limitation submissions that have been made.

Result

  1. We have found that the Government of Samoa has valid title to Namu’a. Tu’isila and his predecessors who had valid title to the island in 1873 ceased to have title to the land following the Court Grant No 167 in 1895. Like Tuatagaloa J we draw in conclusion on the accurate summary of the position of Nelson J in ruling on an earlier strike out application in this proceeding:[18]
  2. The appeal is dismissed.

Costs

  1. The question of costs was not raised orally before us by the respondents. We will assume that given the undoubted sincerity of the appellant and the difficulty of the issues raised no costs are sought by the respondents, unless we hear otherwise.

HON. JUSTICE HARRISON
HON. JUSTICE ASHER
HON. JUSTICE YOUNG
HON. JUSTICE ROMA


[1] Fagasoaia v Attorney General [2024] WSSC 80 (20 September 2024) [Supreme Court decision].
[2] Sia’aga v O.F. Nelson Properties Ltd [2008] WSCA 15 at [5]–[8].
[3] “Malietoa was the name of the Matai who was recognised by the European nations prior to 1889, and during the Condominium, as the King of Samoa.
[4] There appears to be no recognised part of Samoa, known today under this name or variations of it. Presumably the land in question is now known by another name.
[5] Supreme Court decision, above n 1, citing Mauro Bussani and Ugo Mattei The Cambridge Companion to Comparative Law (Cambridge University Press, Cambridge, New York, 2012) at 382.

[6] See Laws of New Zealand, Estoppel, at para 8.

[7] See Laws of New Zealand, Estoppel, at para 8.

[8] Debates on the Constitution page 653.

[9] Debates on the Constitution page 654.

[10] Sia’aga v O F Nelson Properties Limited, above n 2, at [18].

[11] Sia’aga v O F Nelson Properties Limited, above n 2, at [20].

[12] Ali’i & faipule of Siumu District v Attorney-General [2010] WSCA 5 at [9], [16]–[17].

[13] Mabo v Queensland (No. 2) [1992] HCA 23; (1992) 175 CLR 1.

[14] Ngati Apa v Attorney-General [2003] NZCA 117, [2003] 3 NZLR 643.

[15] Felix M Keesing “Modern Samoa” (Gordon Allen & Unwin, London, 1934) at 257.

[16] See s 18 as amended of the Land Titles Registration Act 2008 and the time limit of 17 years.

[17] New Zealand Industrial Gases Limited v Andersons Limited [1970] NZLR 58 (CA).

[18] Tu’isila v Attorney General and Public Trustee Misc 118/18 3 May 2023 at [30]

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