IN THE SUPREME COURT OF SAMOA
HELD AT MULINU'U

CP 145/10

IN THE MATTER: of the Declaratory Judgment of Act 1988.

AND

IN THE MATTER: of the Land and Titles Act 1981.

BETWEEN:

FA'AOLESA KATOPAU AINU'U of Apia, Solicitor.
Applicant

AND:

LAND AND TITLES COURT constituted pursuant to Article 103 of the Constitution of the Independent State of Samoa and the LAND AND TITLES ACT 1981.
Respondent

Counsel: F K Ainuu for himself as applicant 
 K Seuseu and D Kerslake for respondent

Hearing: 24 March 2011

Conclusions: 24 March 2011

Judgment: 31March 2011

JUDGMENT OF SAPOLU CJ

1.	At the end of the hearing of these proceedings on 24 March 2011, I stated my conclusions striking out the applicant's motion for judicial review and statement of claim. I indicated to counsel that I will prepare a written judgment with reasons which will be delivered to them in due course. This is that judgment. 

Nature of proceedings

2.	These proceedings are concerned with a motion on behalf of the Land and Titles Court as respondent to strike out a motion by the applicant to review the decision of the Land and Titles Court of 18 May 1990 in LC 8554 P3/ P4/ P5/ P6/ P7 and P8 concerning the pule (authority) over the land Leififi in Apia as well as to strike out the applicant's accompanying statement of claim.

3.	I have amended the name of the respondent where it says "The Attorney General sued in respect of the Land and Titles court" to "Land and Titles Court". The reason is that whilst it is appropriate to bring proceedings against the Attorney-General where the Government is involved, a Court is not part of the Government. It follows that in proceedings for judicial review of a decision of the Land and Titles Court, the appropriate respondent is the Land Titles Court itself.

Proceedings before the Land and Titles Court in 1990

4.	In proceedings before the Land and Titles Court (LTC or Court) at First Instance in 1990 there were six petitions (talosaga) each claiming a different pule (authority) over the land Leififi in Apia. One of those six petitions was withdrawn. Of the remaining five petitions, the petition of the claimant party of Ainuu Tasi, the father of the present applicant, claimed that the pule of the land Leififi is vested in the matai title Ainuu held by Ainuu Tasi himself; the petition of the first respondent party led by Atalina Toomata Schewenke claimed that the pule of the land Leififi is vested in the heirs of Aisake and the land must be divided amongst the heirs of Aisake; the petition of the second respondent party led by Luamanuvae Atonio Su'a claimed that the pule of the land Leififi must be vested in the heirs of Salanoa Fereti and Ainu'u Tasi; the petition of the third respondent party led by Talele Afamasaga claimed that the pule of the land Leififi is vested in the heirs but not in the matais; and the petition of the fourth respondent party Muliagatele Faataualofa claimed that the pule of the land Leififi is vested in the heirs of Seumanutafa Filifilituga.

5.	It is evident from the written decision of the LTC at First Instance in 1990 that all the parties were given a full and fair hearing. The petition and written statement (tala tusia) of each party were also duly examined by the LTC.

6.	At the hearing of these proceedings to strike out the applicant's motion for judicial review and statement of claim, it became clear that Ainu'u Tasi, the claimant party in the 1990 proceedings, has passed on. Likewise, Atalina Toomata Schwenke and Luamanuvae Sua Atonio, the leaders of the first and second respondent parties respectively in those proceedings. It also became clear during the hearing of these procedings that Faaolesa Po'a who was a member of the first respondent party in the 1990 proceedings and the predecessor of the applicant as holder of the matai title Faaolesa has also passed on. I also know that Lealiiee Alaisa Thompson the third member of the first respondent party has also passed on. So no member of the first respondent party is still alive. It is possible that some of the other members of the various respondent parties have also passed on.

The decision of the Land and Titles Court of 18 May 1990 in LC 8554 P3/P4/P5/P6/P7 and P8. 

7.	In its written decision of 18 May 1990 in LC 8554 P3/ P4/P5/P6/P7 and P8 ("LC 8554"), the LTC held that:

(1)	It is confirmed that the land Leififi was of the title Seumanutafa in the village of Apia. This land was given by Seumanutafa Moepogai I to Aisake as reward for his services.

(2)	The pule of the land at Leifiifi is vested in the heirs of Aisake which comprise of:-

 Heirs of Malo (f)
 Heirs of Kakopau (m)
 Heirs of Fanuaea (f)
 Heirs of Atalina (f)

(3)	The pule of the title Ainu'u in the branch where Ainuu Tasi Tupou comes from is rejected.

(4)	The opinion of Talele Afamasaga which says that the pule of the land relates mainly to the heirs of Kakopau is not confirmed.
 
(5) The opinion of Luamanuvae Atonio Su'a which says that the pule of this land was given equally to the heirs of Salanoa Fereti and the heirs of Ainuu Tasi is dismissed.
 
(6)	The pule of the heirs of Seumanutafa Filifilituga the eldest son of Seumanutafa Leuli is dismissed. 

(7) The petition to sub-divide the land is rejected.

8.	The three Judges of the LTC which heard the 1990 proceedings have all retired. The one Assessor who was the fourth member of the Court has passed on.

9.	Following the decision of 18 May 1990 in LC 8554, Tasi Ainu'u the claimant party and Talele Afamasaga the leader of the third respondent party applied pursuant to s.78 of the Land and Titles Act 1981 to the then President of the LTC for leave to appeal the said decision to the appellate division of the LTC . On 5 March 1991, the President in a written decision refused both applications for leave to appeal. The LTC's decision of 18 May 1990 in LC 8554 therefore remained. 

The applicants' motion for judicial review

10.	On 21 September 2010, the applicant filed a motion for judicial review seeking (a) an order by way of certiorari to transfer the LTC's decision in LC 8554 to the Supreme Court and (b) a declaration that the LTC's decision of 18 May 1990 in LC 8554 is null and void.

11.	It is not clear from the applicant's motion for judicial review whether he is also seeking certiorari to quash the LTC's decision of 18 May 1990 in LC 8544. The function of certiorari is more than simply to have a decision of an inferior Court brought up before the Supreme Court for review. It is also to quash such a decision if it is found to be contrary to law. Certiorari is a different remedy from a declaration or declaratory order.

12.	The grounds of the applicant's motion for judicial review are founded on the Constitution and the common law. The applicant claims that the decision of the LTC of 18 May 1990 in LC 8554 was made in violation of his right to a fair trial guaranteed under Article 9 of the Constitution. However, it is not set out in the motion how the applicant's right to a fair trial under Article 9 has been violated by the decision of the LTC. It was only in response to questions from the Court that the applicant said that he wants to petition the LTC that the pule of the land Leififi in Apia pertains to the matai title Faaolesa of Apia of which he is the current holder but the decision of 18 May 1990 in LC 8554 prevents him from doing so. In that way, the decision in LC 8554 is in violation of his right to a fair under Article 9. In other words, what the applicant wants is to re-litigate the same issue that was litigated by his father Ainuu Tasi and the respondent parties in 1990 and was determined by the LTC in its decision of 18 May 1990 in LC 8554. Because the decision in LC 8554 precludes him from doing so, he takes the view that the said decision is in violation of his right to a fair trial under Article 9.

13.	I also pointed out to the applicant during the hearing of these proceedings that his belief that it is the matai title Faaolesa, of which he is the current holder, that holds the pule of the land Leififi is in conflict with the petition by his father Ainuu Tasi in the 1990 LTC proceedings that it is the matai title Ainuu that is vested with the pule of the said land. It also appears from the decision of the LTC in LC 8554 that Faaolesa Po'a, the predecessor of the applicant as holder of the matai title Faaolesa, was a member of the first respondent party in the 1990 LTC proceedings and the belief of that party was that the pule of the land Leififi is vested in the heirs of Aisake. This is also in conflict with the applicant's belief that it is the matai title Faaolesa that holds the pule of the land of Leififi. I would have thought that if it is the title Faaolesa that holds the pule of the land Leififi, Faaolesa Po'a would have raised that pule in the 1990 LTC proceedings. But he did not do so. Instead his party contended that the pule of the land Leififi is vested in the heirs of Aisake. In fact none of the parties to the 1990 LTC proceedings, including Ainuu Tasi the father of the applicant, petitioned the Court that the pule of the land Leififi is vested in the matai title Faaolesa. It is in this connection that abuse of process could arguably have been raised on behalf of the respondent against the applicant: see Fiso v Reid [2002] WSC A2 per Lord Cooke of Thorndon; Reed v Mataeliga [2005] WSSC 1.

14.	Apart from Article 9 of the Constitution, the applicant in his motion for review also relied on the common law grounds for judicial review, namely, illegality, irrationality, and procedural impropriety as stated by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 410-411. Irrationality as a ground for review was withdrawn by the applicant in the course of the hearing of these proceedings which leaves only illegality and procedural impropriety. It is not necessary in these proceedings to decide whether the Supreme Court has general supervisory jurisdiction based on the common law grounds of illegality, irrationality, and procedural impropriety over decisions of the LTC.

15.	 As to illegality, the applicant says in his motion that the LTC's decision in LC 8554 is illegal because the LTC failed to take into account the prevailing customs and usages of Samoa as provided under s.37 of the Land and Titles Act 1981. However, the applicant's motion does not set out or explain what customs and usages are relevant here and how they were not taken into account by the LTC. The ground of procedural impropriety is just blank. There is nothing in the motion to show why the decision LC 8554 was procedurally improper or unfair to the applicant. However, in the course of oral submissions the applicant said that the LTC's decision in LC 8554 has denied him the right to a fair trial or procedural fairness because he wants to petition the LTC that the pule of the land Leififi is vested in the title Faaolesa but the decision in LC 8554 is preventing him from doing so. This is also at the heart of the applicant's complaint that his right to a fair trial under Article 9 of the Constitution has been violated. I will deal with this under issue estoppel.

The applicant's statement of claim 

16.	In terms of r.196 (1) of the Supreme Court (Civil Procedure) Rules 1980, every motion for an extraordinary remedy shall be accompanied by a statement of claim. Because one of the remedies sought in the applicant's motion for judicial review is certiorari which is an extraordinary remedy, the applicant had to file a statement of claim together with his motion for judicial review.

17.	The difficulty with the applicant's statement of claim is that it is not possible to discern from its pleadings any reasonable cause of action. When the applicant was asked as to what is the cause of action pleaded in his statement of claim he said it is in tort. However, it is not clear what is the relevant tort. But even if it is assumed that the applicant's cause of action is on tort, s.6 (1) (a) of the Limitation Act 1975 provides that the limitation period for an action founded on tort is 6 years.

The respondent's strike out motion

18.	The respondent's strike out motion relates to both the applicant's motion for judicial review and statement of claim. The respondent seeks to strike out the applicant's motion for judicial review as frivolous, vexatious and an abuse of process on two grounds. Firstly, the motion for judicial review does not particularise or sufficiently particularise how or why the LTC's decision of 18 May 1990 in LC 8554 has violated the applicant's right to a fair trial under Article 9 of the Constitution. Secondly, the motion for judicial review does not particularise or sufficiently particularise how or why the said decision of the LTC was irrational, illegal or procedurally unfair. As already mentioned, the applicant withdrew irrationality as a ground for review during the hearing of these proceedings.

19.	The respondent also seeks to strike out the applicant's motion for judicial review on the ground of inordinate delay.

20.	In respect of the statement of claim, the respondent seeks to strike out the applicant's statement of claim on the ground that it does not disclose any reasonable cause of action.

Discussion 

(a)	The applicant's motion for judicial review

21.	In my view, there are two issues which are decisively in favour of the respondent's motion to strike out the applicant's motion for judicial review. These are the inordinate delay in bringing these proceedings and "issue estoppel". I will not discuss the doctrine of abuse of process which is related to issue estoppel as it will further prolong this judgment. But see Fiso v Reid [2002] WSCA 2; Reed v Mataeliga [2005] WSSC 1.

22.	In Tiotionuuese Atonio Amoa et al v Land and Titles Court (2011) (judgment of the Supreme Court delivered on 31 January 2011) this Court said:

"Remedies for judicial review are discretionary. Delay is a factor which the Court may take into account in the exercise of its direction whether to grant or refuse a remedy. It depends on the facts of each case. An important consideration in the exercise of the Court's discretion where delay is an issue is prejudice. This may be prejudice to the respondent or prejudice to third parties. In Constitutional and Administrative Law in New Zealand (2001) 2nd ed by PA Joseph, the learned author states in para 25.4.1 at p.974:

'"Delay in and of itself need not be fatal. The Courts held that relief should not be refused where delay occasions no prejudice or loss to the respondent, or where there is mere delay without complicating factors…. The Courts will usually refuse relief where the respondent or some third party relies, to their detriment, on the applicant's inaction'"

23.	In Judicial Review (1991) by GDS Taylor, the learned author states in para 2.38 at p.54: 

"Delay in bringing proceedings will seldom, if ever, be the only reason refusing relief. In the absence of evidence of prejudice to others, delay is unlikely to prevent a Court giving an applicant a remedy. Thus, in one case the Court of Appeal, in reviewing a decision made two years and eight months before, granted relief: Reid v Rowley [1977] 2 NZLR 472. However, where granting a remedy after delay would result in prejudice to the defendant or a third party, relief may be denied, for example, Turner v Allison [1971] NZLR 833"

24.	Prejudice may be actual or presumptive: Faris v Medical Practitioners Disciplinary Committee [1993] 1 NZLR 60 per Gallen J at 73 – 75. Actual prejudice is prejudice that can be established from the factual material before the Court. Presumptive prejudice is prejudice that is presumed without actual prejudice being established. This might occur where the delay is so excessive or so great that the Court will presume that prejudice must have occurred even though no actual prejudice has been established. 

25.	The time lapse between the decision of the LTC of 18 May 1990 and 21 September 2010 when the applicant filed his motion for judicial review is 20 years and 4 months. The time lapse between the decision of the President of the LTC on 5 March 1991 refusing leave to appeal to Ainuu Tasi and Talele Afamasaga and 21 September 2010 when the applicant filed his motion for judicial review is 19 years and 6 months. Between the dates 18 May 1990 and 5 March 1991 on one hand and the date 21 September 2010 on the other, some of the parties to the 1990 LTC proceedings have passed on. They include Ainuu Tasi the claimant party who claimed that the pule of the land Leififi is vested in the title Ainuu of which he was the holder; Atalina Toomata Schwenke the leader of the first respondent party, Lealiiee Alaisa Thompson and Faaolesa Po'a the other members of the same party which claimed that the pule of the land Leififi is vested in the heirs of Aisake; Luamanuvae Atonio Su'a the leader of the second respondent party which claimed that the pule of the land Leififi is vested in the heirs of Salanoa Fereti and the heirs of Ainuu Tasi; and Talele Afamasaga the leader of the third respondent party which claimed that the pule of the land Leififi is vested in the heirs and not the matais. As already stated, it is possible that other members of the respondent parties have also passed on. Samoa is a small place where everyone knows just about everyone else.

26.	If the applicant's motion for review is granted, it would effectively mean that the pule of the land Leififi would be fought all over again in the LTC. But some of the parties to the 1990 proceedings have passed on and cannot return from their graves to contest the pule of the land Leififi again. That will be very serious prejudice to those parties who would be third parties for the purpose of these proceedings against the LTC as respondent. The most serious prejudice will be to the first respondent party as all its members have passed on but they were the successful party in the 1990 LTC proceedings because the pule of the land Leififi they contended for was upheld by the LTC. So there will be actual prejudice to third parties if the applicant's motion for review is granted. 

27.	It was contended on behalf of the LTC as respondent that if the applicant's motion is granted that will prejudice the respondent as the three Judges of the LTC who presided in the 1990 proceedings have retired and the Assessor who was the fourth member of the Court has passed on. It is not clear to me how that will prejudice the respondent if the applicant's motion is granted. That is because if the applicant's motion is granted, there should be no problem in convening another Court to re-hear the question of pule of the land Leififi. I would also expect that in the interests of procedural fairness, the composition of such a Court would have to be different from the composition of the Court that heard and determined the proceedings in 1990. So it is not clear what prejudice will be suffered by the LTC as respondent if the applicant's motion is granted.

28.	It follows from what I have said that because of the serious prejudice to third parties if the applicant's motion for review is granted, the motion for review should be denied on the ground of inordinate delay. Such delay is not attributable to the third parties but to the applicant in taking so long to bring his motion for review.

29.	One final word in this connection. Too often motions brought before this Court to review decisions of the LTC cite the LTC as the only respondent. The parties who took actual part in the proceedings and are therefore the parties to the decisions of the LTC are not cited as respondents at all. But those parties would normally have a real interest in the outcome of any motion to review a decision of the LTC. In fairness to them, they should also be cited as parties to review proceedings before the Supreme Court or be served with those proceedings so that they may join in as parties if they wish to do so.

Issue estoppel

30.	The applicant says that he wants to petition the LTC that the pule of the land Leififi is vested in the title Faaolesa of which he is the current holder. Because of the LTC's decision in LC 8554 he is precluded from petitioning the LTC. Therefore, the said decision is in violation of his right to a fair trial provided under Article 9 of the Constitution.

31.	In my view, the applicant misses the point. It is not so much the decision in LC 8554 that precludes him from re-litigating the pule of the land Leififi which was determined in LC 8554. It is the well-established common law doctrine of issue estoppel which was evolved and developed over the years to ensure finality in litigation and to safeguard a party from being vexed or harassed twice in the same matter that precludes the applicant from petitioning the LTC to re-litigate the same issue that has already been determined by the LTC in LC 8554 in 1990. The decision in LC 8554 gave rise to the estoppel.

32.	In effect, what the applicant is saying is that the doctrine of issue estoppel is denying him his right to a fair trial under Article 9. If I am to accede to such a submission, it will be tantamount to holding that issue estoppel is an unconstitutional impediment to a party's desire to re-litigate an issue already determined by a Court of competent jurisdiction and is the subject of a final decision. The well established doctrine of issue estoppel will be overturned. Such a position will be totally unacceptable as it will be contrary to the public interest in the finality of litigation and in the protection of a party from being vexed or harassed twice in the same matter. With respect, the applicant's submission in these proceedings with regard to the right to a fair trial under Article 9 is a serious misconception.

33.	I had discussed issue estoppel at some length in Reed v Mataeliga [2005] WSSC 1 in the context of proceedings before the Supreme Court. Inevitably, much of what I will say here on issue estoppel will be a repetition of what I said in Reed v Mataeliga but bearing in mind that these proceedings relate to previous proceedings in the LTC.

34.	The doctrine of issue estoppel was evolved and developed in England in the context of civil proceedings. Such proceedings, of course, are not identical to proceedings before our Land and Titles Court. So the traditional doctrine of issue estoppel may not fit comfortably into the context of LTC proceedings without some modifications. Bearing that in mind, I cannot see why the central principles of issue estoppel should not apply to proceedings before the Land and Titles Court.

35.	Perhaps the central principle embodied in issue estoppel is that stated in Fidelitas Shipping Co Ltd v V/O Exportchleb [1965] 2 A11 E R 4, 9 where Lord Denning MR said:

" The rule is that, once an issue has been raised and distinctly determined between the parties, then, as a general rule, neither party can be allowed to fight that issue all over again"

36.	In Reed v Mataeliga [2005] WSSC 1 this Court said:

"Issue estoppel….applies to an issue of fact or law which has been determined in a judicial proceeding by a Court of competent jurisdiction to prevent either party to such proceeding from raising the same issue again in a subsequent proceeding between the same parties. The same applies not only to the parties but also to their privies. In explaining issue estoppel in Blair v Curran [1939] HCA 23; (1939) 62 CLR 464, Dixon J said at 531:

'"A judicial determination directly involving an issue of fact or law disposes once and for all of the issue, so that it cannot afterwards be raised between the same parties or their privies"'

37.	In Ramsay v Pigram [1968] HCA 34; (1968) 118 CLR 271, Barwick CJ when discussing the doctrine of issue estoppel said at 276:

"Long standing authorities, in my opinion, warrant the statement that, as a mechanism in the process of accumulating material for the determination of issues in a proceeding between parties, an estoppel is available to prevent the assertion in those proceedings of a matter of fact or law in a sense contrary to that in which that precise matter has already been necessarily and directly decided by a competent tribunal in resolving rights or obligations between the same parties in the same respective interest or capacities, or between a privy of each, or between one of them and a privy of the other in each instance in the same interest or capacity. The issue thus determined …. must have been identical in each case."

38.	The requirements of issue estoppel to be established were stated in Carl Zeiss Stiftung v Rayner & Keeler Ltd (No. 2) [1967] 1 AC 853, 935 where Lord Guest in the House of Lords said:

"The requirements of issue estoppel still remain (1) that the same question has been decided, (2) that the judicial decision which is said to create the estoppel was final, and (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies".

39.	In the Canadian case of Apotex Inc v Marck & Co. [2002] FCA 210 Malone JA said:

"[Issue estoppel] is said to arise where the same question has been decided, the judicial decision which is said to create the estoppel is final, and the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised.

"Issue estoppel applies to preclude re-litigation of an issue which has been conclusively and finally decided in previous litigation between the same parties or their privies".

40.	The policy considerations underlying res judicata, cause of action estoppel, issue estoppel and the related doctrine of abuse of process are the public interest in the finality of litigation and that a party should not be vexed or harassed twice in the same matter: see, for example, Carl Zeiss Stiftung v Rayner & Keeler Ltd (No. 2) [1967] 1 AC 853, per Lord Reid at 909, per Lord Guest at 933, per Lord Upjohn at 946; Johnson v Gore Wood & Co. [2001] 1 A11 ER 484 per Lord Bingham at 498-499; The Doctrine of Res Judicata (1996) 3rd ed Spencer Bower, Turner and Handley at 10.

41.	As to who may be privies, there are three classes of privies: privies in blood, title, or interest: Carl Zeiss Stiftung v Rayner & Keeler Ltd (No. 2) [1967] 1 AC 853 per Lord Reid at 910,; Ramsay v Pigram [1968] HCA 34; (1968) 118 CLR 271 per Barwick CJ at 279. In 4 Halsbury's Laws of England at para 1543, p. 1641, ancestor and heir are given as examples of privies in blood. As for privy in interest, the basic requirement is that the privy must claim under, through, or on behalf of the person he is said to be a privy: Ramsay v Pigram [1968] HCA 34; (1968) 118 CLR 271 per Barwick CJ at 279.

42.	Issue estoppel, however, will not arise where there is fresh evidence which is relevant to the correctness or incorrectness of an assertion whether of fact or of the legal consequences of facts, if such fresh evidence could not by reasonable diligence have been adduced by the applicant in the previous proceedings: Mills v Cooper [1967] 2 QB 459, 468 per Diplock LJ. "But the fresh evidence must be decisive, in the sense that it must show that the previous decision was wrong: 'oath against oath will not do'": Cross on Evidence (1997) 6th NZ ed, para 12.9, p. 384.

43.	At the hearing of these proceedings, the applicant said that he wants to petition the LTC that the pule of the land Leifiifi is vested in the title Faaolesa of which he is the current holder. But he cannot do so because of the LTC's decision of 18 May 1990 in LC 8554. So he has brought these proceedings for judicial review to have the decision in LC 8554 declared null and void. Presumably, the applicant considers that when that is done the way will be open for him to petition the LTC that the title Faaolesa is vested with the pule of the land Leififi. In other words, what the applicant cannot achieve directly because of the decision in LTC 8554, he is now trying to achieve indirectly by moving this Court to have the said decision declared null and void. In this way, the applicant is, in effect, trying to circumvent the doctrine of issue estoppel. 

44.	Applying to these proceedings the three requirements of issue estoppel as set out in Carl Zeiss Stiftung v Rayner & Keeler Ltd (No.2) [1967] 1 AC 853 by Lord Guest at 935, the first question is whether the issue that the applicant wants to re-litigate is the same issue that has been decided by a competent tribunal.

45.	There was no dispute that the issue that was before the LTC in 1990 for determination was who holds the pule of the land Leififi. There was also no dispute that the LTC is a tribunal of competent jurisdiction. There was also no dispute that the LTC in its decision in LC 8554 did determine the issue of who holds the pule of the land Leififi. It is that very same issue which the applicant now wants to re-litigate by petitioning the LTC that the pule of the land Leififi is vested in the title Faaolesa contrary to the LTC's decision in LC 8554 that the pule of the said land is vested in the heirs of Aisake. In my view, the first requirement of issue estoppel, namely, that the same question has already been decided by a competent tribunal is established on the material before this Court.

46.	 As to the second requirement of issue estoppel, namely, whether the judicial decision which is said to create the estoppel was final, I am of the view that the decision of the LTC of 18 May 1990 in LC 8554 was final. The provisions of Part III of the Land and Titles Act 1981 provide that decisions of the LTC are final. Section 70 of the Act further provides that every final decision of the Court on a petition shall be deemed to be a judgment in rem and shall bind all Samoans who are affected by it, whether parties to the proceedings or not. The fact that there is a right of appeal from the decision of the LTC of 18 May 1990 in LC 8554 to the appellate division of the LTC does not affect the finality of that decision. In Cross on Evidence (1996) 5th Aust ed by J D Heydon at para [5025], p. 151 the learned author states:

"The essential characteristic of a final judgment is that it determines finally the dispute between the parties. An order which may be reversed on appeal is nonetheless final."

47.	In any event, two of the parties to the decision in LC 8554 did seek leave to appeal that decision but leave was refused by the President of the Court. So the decision in LC 8554 remained a final decision. It follows that the second requirement of issue estoppel, namely, that the judicial decision which is said to create the estoppel was final, is also established on the material before this Court. 

48.	As to the third requirement of issue estoppel, namely, that the parties to the previous judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies, the claimant party in the 1990 proceedings and the LTC's decision in the LC 8554 was Ainuu Tasi, the father of the applicant. So there is clear privy in blood between the applicant and Ainuu Tasi. In other words, the applicant is a privy in blood of Ainuu Tasi who petitioned the LTC that the pule of the land Leififi is vested in the title Ainuu. 

49.	Faaolesa Po'a who was one of the members of the first respondent party to the 1990 proceedings and the LTC's decision in LC 8554 was the predecessor of the applicant as holder of the title Faaolesa. So there is clear privy in title between the applicant and Faaolesa Po'a. The applicant would therefore be a privy in blood of his father Ainuu Tasi and a privy in title of Faaolesa Po'a who were both parties to the 1990 proceedings and the decision in LC 8554. The third requirement of issue estoppel is therefore also established on the material before the Court.

50.	From the above discussion, issue estoppel would have precluded the applicant from petitioning the LTC to re-examine the question of who holds the pule of the land Leififi as that question had been determined by the LTC in LC 8554 where the applicant's father and predecessor as holder of the title Faaolesa were parties. Finality in litigation is in the public interest. In my view, the well established common law doctrine of issue estoppel will not, in the circumstances, be a violation of the applicant's right to a fair trial under Article 9 of the Constitution.

51.	The applicant also did not adduce any "fresh evidence" which decisively demonstrates that the decision in LC 8554 was wrong so as to preclude the operation of issue estoppel. 

52.	It follows from the above discussion that there has been no violation of the Article 9 right to a fair trial. It further follows that the decision in LC 8554 does not create any procedural unfairness to the applicant. Procedural fairness is an integral part of the right to a fair trial. 

Lack of or insufficient particulars
53.	Apart from inordinate delay, the other ground on which the respondent seeks to strike out the applicant's motion for judicial review is that it is frivolous, vexatious, and an abuse of process because (a) the motion for review does not particularise or sufficiently particularise how or why the LTC's decision of 18 May 1990 in LC 8554 has violated the applicant's right to a fair trial under Article 9 of the Constitution, and (b) the motion for review does not particularise or sufficiently particularise how or why the said decision of the LTC was illegal, irrational or procedurally unfair. Irrationality as a ground for review was withdrawn by the applicant during the hearing of these proceedings.

54.	For present purposes, I will have to assume, without deciding, that this Court has jurisdiction to review decisions of the LTC generally. With that in mind, counsel for the respondent are correct that the applicant's motion for review does not provide any particulars at all in support of the grounds of alleged violation of the right to a fair trial under Article 9 or procedural impropriety. In relation to the ground of illegality, the only matters which may be described for the sake of argument to be particulars in support of that ground is what the applicant says in his motion that the decision in LC 8554 is illegal because it failed to take into account the prevailing customs and usages of Samoa as provided under s.37 of the Land and Titles Act 1981.

55.	In my view, to say that the ground of a motion for judicial review should be struck out as frivolous, vexatious, and an abuse of process because it provides no particulars or insufficient particulars may not be enough to strike out such a ground. The reason is that it may not be clear whether such an unparticularised or insufficiently particularised ground has merit or substance if it had been particularised or sufficiently particularised. Counsel moving to strike out should go further and demonstrate that the ground is totally without merit or substance that to adjourn proceedings for the other party to provide particulars or further particulars would be a waste of time for everyone concerned. If that can be done, then the challenged ground will be struck out. The alternative would be to apply to the Court for an order to direct the other party to provide full and better particulars of the grounds of his motion for review. When that is done and it appears that the grounds of the motion for review are without substance or hopeless, then the respondent may move to strike them out as an abuse of process. I say this because the jurisdiction to strike out must be sparingly exercised and it will only be exercised in a plain and obvious case where the grounds of review are so clearly untenable that they cannot possibly succeed. The right of access to a Court embodied in Article 9 of the Constitution is not to be lightly denied to a litigant. See Tiotionuuese Atonio Amoa et al v Land and Titles Court (2011) (judgment of the Supreme Court delivered on 31 January 2011).

56.	Procedural fairness or procedural propriety is an integral part of the right to a fair trial under Article 9. I have already discussed the right to a fair trial in the context of issue estoppel. I am of the clear view that there is no merit or substance in this ground of review, namely, that the LTC's decision of 18 May 1990 is in violation of the applicant's right to a fair trial under Article 9. There is also no procedural impropriety.

57.	In relation to the ground of illegality which is insufficiently particularised, it would be pointless to give the applicant the opportunity to furnish further particulars as the whole of the motion for judicial review should nonetheless be struck out on the ground of inordinate delay.

Statement of claim

58.	I accept the submissions by counsel for the respondent that the applicant's statement of claim does not disclose any reasonable cause of action and must be struck out. But even if the statement of claim discloses a reasonable cause of action in tort as the applicant told the Court, the limitation period for an action on tort is 6 years so that the applicant's statement of claim is well out of time.

Conclusions 
59.	For the foregoing reasons, I have come to the conclusion that the applicant's motion for judicial review and accompanying statement of claim should be struck out. They are accordingly struck out.

60.	Counsel to file submissions as to costs in 7 days.

CHIEF JUSTICE