IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

SAMOA TRUST ESTATES CORPORATION
of Vaitele
Applicant/Plaintiff

AND:

ALII & FAIPULE OF SATAPUALA
namely TOALEPAIALII TOESULUSULU SIUEVA II,
VAILI MIMITA, FOLASA FAITASIGA, ILIOLEMALAE FAAMAU,
TAUVALAAU TINEI, TOESULUSULU SU’AFAIGA CEDRIC,
LASEI SIONE, MAOMALIE AIOMANU & OTHERS
of Satapuala.
Respondents/Defendants

Counsels:	Leota R.Schuster for the plaintiff
Tuala K.Enari for the defendants

Decision:	24 September 2008

DECISION OF NELSON J. (application to lift interim injunction)

By ex-parte order dated 14 May 2008 the Chief Justice granted an interim injunction to the applicant/plaintiff:

(i)	prohibiting the respondents/defendants and/or any person acting under by or through them from entering onto lands belonging to the plaintiff situated at Satapuala and Mulifanua and further prohibiting the defendants from obstructing the access and egress of the plaintiff and threatening the plaintiffs employees;

(ii)	restraining the defendants from constructing any temporary or permanent dwellings buildings or structures on the plaintiffs land; and

(iii)	prohibiting the defendants from felling and removing trees from the land including all edible crops, wood, timber, soil, water and suchlike until a proper and final determination of the defendants claim in relation to the land has been made.

The application for an interim injunction was based on the fact that the plaintiff is the registered and legal proprietor of the land and the defendants were trespassing and interfering with its ownership. The land comprises some 1700 acres adjacent to customary lands of the village of Satapuala located opposite Faleolo International Airport. The named defendants are members of the Satapuala Village Council.

The defendants now seek to set aside the interim injunction. Although their application refers to an ex-parte interim injunction granted on 14 June 2008 I am satisfied it must be in relation to the ex-parte interim injunction granted on 14 May 2008 as the only order issued in June 2008 was a formal proof judgment entered on 16th June 2008 which has been set aside.

The grounds of the defendants application are that:

(i)	there was no urgency necessitating the issue of ex-parte relief;
(ii)	the title of the plaintiff rests on the Samoa Land for Defence Purposes Ordinance 1945 which is either invalid or legally ineffective;
(iii)	the plaintiffs title is defective as it was acquired without consideration; and
(iv)	the plaintiffs title is unconstitutional.

The affidavit in support of the application indicates this dispute is a long running one between the village of Satapuala and the plaintiff which is a statutory corporation owned and controlled by the Government of Samoa.

Relevant Law:

The applicable principles have been stated and restated in so many previous decisions of the court that they should by now be well known. The two fold test is whether there is a serious question to be tried and if so, whether the balance of convenience favours the retention or recession of the interim injunction. If authority be necessary see Eng Mee Yong v Letchumanan [1980] AC 331, Shotover Gorge Jet Boats Ltd v Marine Enterprises Ltd [1984] 2 NZLR 154, Esera v NUS [2003] WSSC 12 and Dive & Fly Samoa Ltd v Schmidt [2005] WSSC 40.

That there is a serious question to be tried is not disputed by the parties. Both agree the issue as to the rightful owner of the land is neither frivolous nor vexatious and is a serious question requiring resolution by adjudication.

The real issue revolves around the second consideration, that of where the balance of convenience lies. In this respect it is noted that the plaintiff according to the defendants affidavit in support of their application, took possession of the land during World War II over 60 years ago. In 1945 it was granted title to the land by the Samoa Land for Defence Purposes Order 1945 and since then it has been in continuous occupation of the property. There have been sporadic challenges by members of Satapuala village to the plaintiffs title over the years but by and large these have been unsuccessful: see for example Western Samoa Trust Estates Corporation v Leniu Faisaovale [1970-1979] WSLR 138 and for a similar claim in respect of adjoining land of the plaintiff see Western Samoa Trust Estates Corporation v Saipaia Olomalu and others [1980-1993] WSLR 191. These proceedings arise out of the latest foray by the defendants in October 2007 onto the plaintiffs land. The defendants now argue the balance of convenience favours recession of the interim injunction and reinstatement of their occupation of the plaintiffs land, an occupation which for present purposes seems to have begun in October 2007. 

I have no hesitation in rejecting the defendants argument. The balance of convenience favours the legally registered owner who has been in prima facie lawful occupation of the land for numerous decades. The greater injustice would be to grant to a claimant temporary possession of lands which a legally registered proprietor has occupied for over 60 years. If the defendants believe they have rightful title to the land and that their claim has not been defeated by the effluxion of time, there are legal processes available to them which I understand have already been resorted to by separate proceedings. It is not open to them to take forceful possession of lands claimed and then seek that their unestablished claims be used to defeat the possessory rights of a registered owner.

As to the argument that damages would be an adequate remedy the plaintiffs current use of the land must be considered. The documents before the court show the plaintiff operates a plantation employing a large number of workers. Workers who are no longer able to work because of threats and intimidation by the defendant village. The documents also show that upon gaining occupation the defendants began felling trees, removing crops and timber and generally reshaping the land for their own purposes. If the injunction were removed these activities would no doubt resume and possibly intensify. I am not persuaded an award of damages to a successful plaintiff would be adequate compensation for such actions. And neither am I satisfied the defendants are in a position to satisfy a damages award given their identity composition and function. In this regard see the judgment of Hardie Boys J in Shotover Gorge where he said at page 161: 

"I have very little information as to the ability of each party to pay damages and therefore must look elsewhere. If an injunction were refused the extent of any loss sustained by the plaintiff would be difficult to calculate and hence incapable of proper recompense in damages. There would not only be the matter of direct loss but there could well be other factors affecting the plaintiff……" 

The learned judge then went on to discuss the damage to the plaintiffs business and goodwill and other kinds of indirect loss which would be difficult if not impossible to quantify. These are all factors present in the instant case and operate against discontinuing the plaintiffs prima facie lawful possession.

The interim injunction granted ex-parte on 16 May 2008 by the Honourable Chief Justice remains, the defendants application is dismissed. Courts reserved.

JUSTICE NELSON