IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

ATTORNEY GENERAL
on behalf of the Department of Lands, Surveys & Environment
APPLICANT

AND:

LEAPAI ALAIVA’A
of Vaimoso, Matai
FIRST RESPONDENT

AND:

THERESA McCARTHY
of Fugalei, Member of Parliament
SECOND RESPONDENT

Counsel: Mr AP Petaia for the Applicant
Mr D Potoi for the First Respondent
Mr P Fepuleai for the Second Respondent 

Hearing: 
Decision: 27 January 2003

DECISION OF JUSTICE VAAI

INTRODUCTION

On the 9th September 1996 Chief Justice Sapolu gave the following judgment:

“UPON READING the Statement of Claim dated the 22nd day of July 1996 and Affidavit for Formal Proof dated the 6th day of September 1996 sworn and filed by the Plaintiff herein and upon hearing Pierre F. Meredith for the Plaintiff this Court being satisfied that the Plaintiff’s case has been made out gives judgment as follows:

a)	Survey Plans 4444L, 5561 and Cadastral 13 are invalid as they are incorrect and this Court hereby Order that such Survey Plans be corrected so that be in accordance with Survey Plans be corrected so that be in accordance with Plan of Parcel 52 dated 28 July 1936 and Plan Flur 4A.

b)	Pay costs of $69.60.

BY THE COURT

DEPUTY REGISTRAR”`

In response to the said judgment the applicant in these present proceedings retained the services of a surveyor from a firm of surveyors in Tauranga New Zealand to examine the boundaries in the plans referred to in the above decision of Sapolu CJ. As a result of the recommendations in the written report from the surveyor the Applicant filed an application for Declaratory Order that the boundary between parcels 523 and 53 on Plan 5561 and Plan 4444L be declared to be the correct boundary between the two parcels on the grounds:

1)	That pursuant to the Order made by this His Honour the Chief Justice Sapolu on 9th September 1996 the applicant has retained the services of an independent surveyor to investigate the disputed boundary.

2)	The independent surveyor has investigated the disputed boundary and based on his investigations he has defined a possible new boundary definition.

3)	That the margin of error in the new boundary definition is estimated at between fifteen and twenty meters.

4)	That the new boundary definition is similar to the current boundary definition. At all times the new boundary definition is within 20 meters of the current boundary definition.

5)	Therefore as the current boundary definition is within the margin of error of the new boundary definition, the current boundary definition should be confirmed.

Motion to Strike Out

The First Respondent in response to the applicant’s Motion for a Declaratory Order filed a Notice of Motion for an Order to Strike Out the applicant’s Motion for a Declaratory Judgment upon the grounds:

1.	THAT pursuant to the Order made by His Honour the Chief Justice Sapolu on 9 September 1996, Survey Plans 4444L, 5561 and Cadastral 13 were adjudged invalid as they are incorrect and the Court thereby gave Order that such survey Plans be corrected to be in accordance with Plan 52 dated 28 July 1938 and Plan Flur 4A. therefore the Applicant has acted unlawfully in obtaining the services of a surveyor to reinvestigate a matter already decided upon by the Honourable Court.

2.	THE alleged independent surveyor’s report is inconclusive giving possible alternatives to resolve a dispute involving his client the State which employed him but he has no appreciation of the law relating to Customary Land in Samoa as evident from his report. The report therefore cannot form the basis of a Declaratory Judgment by the Honourable Court.

3.	THAT the approach now taken by the State puts the Director of Lands, Survey and Environment (hereafter the Director) at the risk of committing perjury due to earlier sworn testimony by him supporting the Supreme Court Order for 9 September 1996 and the Applicant herein position based on his department’s subsequent investigations.

4.	THAT the Director acted ‘ultra vires’ his statutory functions against the Court Order when he hired the Consultant.

5.	THAT the Director acted in contempt of court when he hired the consultant to present a report as now presented to this Honourable Court.

6.	THE Applicant herein was not consulted by the Director and the State when the new surveying by the Consultant was carried out despite their full knowledge of the disputed nature of the matter thereby committing further negligence against the Applicant.

7.	THE Declaratory Judgment sought by the State in its Motion violates protection of customary lands under the Constitution as the Supreme law of Samoa.

8.	THE Declaratory Judgment sought by the State contradicts lawful alienation of customary land under the Alienation of Customary Land Act 1965.

9.	THE Declaratory Judgment sought by the State is bad precedent for Samoa insofar as the protection of Customary lands is concerned.

10.	THE Honourable Supreme Court does not have jurisdiction to decide upon matters affecting customary land such as declaring any part(s) thereof to be freehold land under the Declaratory Judgments Act 1988.

11.	THAT the Affidavit by Theresa McCarthy dated 5 April 2002 supporting the Order sought by the State is to her benefit although she withdrew a Motion she filed on 31 July 2000 to this Honourable Court to change its Order of 9 September 1996 when she was served affidavits by the Director and other Staff of the Lands, Survey and Environment Department opposing her Motion.

It is not clear from the above 11 grounds and from oral submissions of counsel whether the application to strike out is made pursuant to Rule 70 Supreme Court (Civil Procedure) Rules upon the basis that no cause of action is disclosed, or, pursuant to the inherent jurisdiction of the court to strike out.

If the application to strike out is made pursuant to Rule 70 then it must fail because a cause of action is disclosed viz. a claim that subsequent to the judgment of the court of the 9th September 1996 the applicant took steps to obtain a new boundary definition and the applicant is asking the court to confirm the boundary definition.

If the application to strike out is made pursuant to the inherent jurisdiction of the court then special rules apply as enunciated in a number of authorities both Samoan and foreign origin. See for example: General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 113 CLR 125; Lawrence v Lord Norreys (1890) 15 AC 210; Lucas & Son Ltd v O’Brien (1978) 2 NZLR 289; Pacific Commercial Bank Ltd v Commissioner of Police CP 2/98 Unreported decision of Sapolu CJ 13/5/98 to name only a few. So under its inherent jurisdiction the court may strike out an action which is frivolous or vexations or an abuse of process or which must fail and which is without a solid basis. The power to strike out under the court’s inherent jurisdiction is discretionary. It is a jurisdiction which will be exercised sparingly and with great circumspection and only where it is perfectly clear that the plea cannot succeed.

Counsel for applicant correctly points that the First Respondents application to strike out does not cite any of the grounds either under Rule 70 or under the inherent jurisdiction of the court in support of the application to strike out. In fact in his written submissions counsel for the First Respondent states that his motion to strike out is made pursuant to Rule 12 Supreme Court (Civil Procedure) Rules 1980. Rule 12 has no relevance whatsoever to a striking out application.

Grounds 7, 8, 9 and 10 relied upon the First Respondent to strike out are:

7.	The declaratory judgment sought by the state in its motion violates protection of customary lands under the constitution as the Supreme Law of Samoa.

8.	The declaratory judgment sought by the state contradicts lawful alienation of customary land under the Alienation Customary Land Act 1965.

9.	The declaratory judgment sought by the state is bad precedent for Samoa insofar as the protection of Customary land for Samoa is concerned.

10.	The Honourable Supreme Court does not have jurisdiction to decide upon matters affecting customary land such as declaring any parts thereof to be freehold land under the Declaratory Judgments Act 1988.

The above four grounds are in my respectful view misconceived because the Supreme Court clearly has jurisdiction to determine whether any land is freehold or customary land. In advancing the above four grounds the First Respondent is presupposing that the declaratory judgment sought involves the alienation or taking of land already classified as customary land. In other words the argument advanced by the First Respondent is that the dispute between the parties arises and of what is clearly customary land so that the proper forum is the Land and Titles Court and not the Supreme Court. See Mau Sefo v Attorney General unreported decision of the Supreme Court 22nd July 2000.

The remaining grounds either relate to factual issues which can only be properly dealt with in the hearing of the substantial application or they are totally irrelevant to the principles involved in the determination of the application to strike out so as to show that the applicant’s motion for a declaratory judgment cannot succeed on any possible view of the facts and the law. To put it another way the grounds set out in the application to strike out cannot persuade me that the motion for a declaratory judgment cannot succeed or that the motion for a declaratory judgment is manifestly groundless and faulty and obviously untenable that it does not admit of argument: see Saleimoa Plantation Ltd v National Provident Fund and the Development Bank of Samoa unreported decision of the Supreme Court 25/7/2000.

For the above reasons the First Respondent’s application to strike out the Notice of Motion for a declaratory Judgment is dismissed. The First Respondent is ordered to file affidavits in reply to the Motion for a declaratory judgment by the 21st February 2003. The question of costs is reserved.

JUSTICE VAAI