IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

IN THE MATTER: of section 81 (b) of the Land and Titles Act 1981

AND

IN THE MATTER: of an application for judicial review of a decision of the President of the Land and Titles Court dated 28 November 2008 denying an application for special leave to appeal

BETWEEN:

FUIMAONO ESERA RIMONI, matai of Salani Falealili
Applicant

AND:

PRESIDENT OF THE LAND AND TITLES COURT
Respondent

Counsel: S Ponifasio for the applicant
 K Seuseu and E Schmidt for the respondent

Hearing: 12 July 2011

Judgment: 8 August 2011 

JUDGMENT OF SLICER J

1.	The Respondent seeks the striking out of an application for a writ of mandamus provided for by the Supreme Court (Civil Procedure) Rules 1980 Rule 192. On 16 February 2010 the Applicant's motion was withdrawn and on 22 February 2010 the learned Chief Justice entertained a costs order in favour of the Respondent which he made on 9 November 2010. On the same day the Respondent filed a Strike Out Motion.

2.	The original mandamus motion had not been dismissed and on 22 July 2010 the Applicant made a further application for prerogative relief. The order sought was to compel the President of the Land and Titles Court to exercise a discretion pursuant to the Land and Titles Act 1981 ("the Act") Section 81(b).

3.	The Respondent contends that, as a matter of fact, he had exercised a discretion. The Applicant claims that:

"the Respondent denied the Applicant's application that the application was lodged after the expiry of time period allowed by the Act."

4.	The decision of the Respondent was made on 28 November when he refused an application for leave to appeal out of time that is twenty one (21) days as permitted by the Act Section 81(a). The ground for mandamus is that he failed to exercise a discretion as provided for in Section 81(b).

5.	The Applicant claims that the failure was wrong in law and attracted the ground stated in the Act Section 79(1)(f).

6.	The Applicant seeks to engage the Constitution Article 9 which states:

"Right to a fair trial - In the determination of his civil rights and obligations or of any charge against him for any offence, every person is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established under the law. Judgment shall be pronounced in public, but the public and representatives of news service may be excluded from all or part of the trial in the interests of morals, public order or national security, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the Court in special circumstances where publicity would prejudice the interests of justice."

Jurisdiction

7.	The Act Section 71 provides a bar to the use of a prerogative writ to quash or review a decision of the Land and Titles Court in the following terms:

"Decisions and orders not reviewable by other Courts - Subject to this Act, no decision or order of the Court shall be reviewed or questioned in any other Court by way of appeal, prerogative writ or otherwise howsoever."

The Act is Valid
8.	Here the complaint is that the Constitution Article 9 (2) was engaged in that there had not been a proper exercise of discretion in the Respondent's decision that the appeal was filed out of time and he did not determine whether he should exercise his discretion and after taking into account the circumstances of the late application for leave, reasons for delay, prejudice and the like.

9.	Here the decision was made by the President. It is first necessary to determine whether he acted as a Court or a person designata. He was not making an interlocutory order in the sense used by the Act Section 49.

10.	The correct response was to immediately appeal his determination, not to grant leave to the Court of Appeal, in accordance with the Act Section 79(1)(f) within the twenty one (21) day period provided by Section 81(a). However, Section 78 provides that 'no appeal shall be lodged without the leave of the President.' There is the statutory impasse.

11.	The Act Section 71 is subject to the Constitution. In Lealailepule Rimoni Aiafi and Others v Ulu Vaomalo Ulu Kini and Others (9 June 2006), the Electoral Court of Appeal determined that the Electoral Act Section 117 which prohibited any appeal against a decision of the Election Court was valid and did not offend the Constitution. The Court declined to consider the merits of the case, and considered that the Parliament was entitled to enact Section 117 because of the special circumstances and effect on governance arising from elections. Here Parliament has enacted Section 71 in an attempt to curtail long running disputes arising from custom and title.

12.	The Constitution of the Appellate Court is provided for by the Act Section 77.

13.	In Aloimaina Ulisese v Iva Aloimaina & Others (unreported judgment dated 4 November 1998) and Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter Day Saints (22 November 2000), the Court decided that decisions of the Land and Titles Court were susceptible to Judicial Review notwithstanding the enactment of Section 71. In the latter case Sapolu CJ stated:

"…I am of the view that notwithstanding sections 34 and 71 of the Land and Titles Act 1981, the Supreme Court has jurisdiction to review the decision of the Land and titles Court in this case for breach of procedural fairness in not complying with the rules of natural justice and for illegality by acting without jurisdiction."

 and later:

"In my judgment, therefore, the Supreme Court has jurisdiction at common law to review the decision of the Land and Titles Court in this case on the grounds of procedural fairness and illegality. But since procedural fairness is embodied in the concept of the right to a fair trial under Article 9 of the Constitution, I would expect that applications for review for breach of procedural fairness in relation to proceedings before the Land and Titles Court would be brought mainly under Article 4 of the Constitution rather than at common law."

14.	The above cases were decided prior to the decision of the Court of Appeal in Rimoni Aiafi (supra). A relevant decision of the Court of Appeal is binding on me. Here the Applicant denies that he received a 'fair trial' in that he was denied the opportunity to be heard on the question of discretion provided for by the Act Section 78 and 81(b). The wording of the Constitution Article 9(2) refers to:

"any law…that it confers upon a tribunal, Minister or other authority…"

15.	But the wording would not protect a capricious decision made under Section 78 or one made without consideration or misunderstanding of the import of the Act Section 81(b). If a civil right of appeal, Sections 76 and 79, is denied by the decision maker the right to a fair trial is protected by Article 9 and permits a superior court to exercise the power of mandamus. The Act Section 71 remains valid as it related to a bar. Had the discretion been exercised adverse to the Applicant he would have no remedy even if he could claim the decision to be wrong. To that extent the decisions of the Supreme Court referred to in paragraph 13 above survive the binding effect of the Court of Appeal in Rimoni Aiafi (supra).

16.	This decision is not to be taken as a vehicle for Judicial Review of decisions of the Land and Titles Court. Here it was the President's apparent failure to reconsider his initial decision which gave rise to a claim for judicial review. In other words the President had considered the exercise to be mandatory rather than discretionary. But the fact that the Court has considered the matter in detail ought not be taken to amount to judicial approval of the wrongful and technical use of Judicial Review. Judicial Review is not an appeal as of right, it is not a form of rehearing as of right and it is not a remedy simply because a party ritually invokes or seeks to invoke an Article of the Constitution. Judicial Review is a serious remedy, often of last resort. It is not a mere procedural device.

Exercise of Mandamus
17.	A writ of mandamus ought not issue where there is a remedy 'equally convenient, beneficial and effectual' (Re Barlow (1861) 30 LJ (QB) 271). Here statute provided for appellate review.

18.	Mere appeal to an Article of the Constitution ought not be regarded as a vehicle for mandamus. Where Parliament has enacted legislation to effect or provide for a right of a citizen of Samoa, the validity or otherwise of that enactment can be determined as being in accordance with or contrary to a basic Constitutional right. The Court ought be cautious into directly applying Part II of the Constitution to a specific decision made by an officer of the State. Mandamus does not ordinarily lie against servants of the State acting in that capacity and not as personal designata (R v Secretary of the State for War [1891] 2 QB 326; Levesque v Attorney General of Canada [1986] 25 DLR (4th) 184).

19.	Mandamus is not a vehicle to require a public officer to enforce particular laws (R v Metropolitan Police Commissioner; Ex p Blackburn (No. 3) [1973] QB 241).
20.	Constitutional Review is aimed at upholding basic Constitutional and human rights. The distinction with specific administrative or quasi judicial decisions is well summarised by Joseph, Constitutional – Administrative Law in New Zealand (2 Ed.) at 20.10 as:

"Constitutional Review is contents based (substantive review of administrative outcomes), administrative law review method – based (review of process and the logic of decision making)." 

21.	One must have recourse to statute to see if its procedures are in accordance or contrary to a 'fundamental right' protected by the Constitution (see generally: Ashby v Minister of Immigration [1981] 1 NZLR 222 (CA); Rajan v Minister of Immigration [1996] 3 NZLR 543).

22.	The discretion to extend the time for the filing of the appeal is not unfettered (Padfield v Minister of Agriculture, Fisheries & Food [1968] AC 997) but the Act Section 81(b) permits a broad discretion. Mandamus lies to enforce the exercise of discretion (R v Secretary of State for the Home Department [1995] 2 AC 513 and M v Home Office [1994] 1 AC 377). If the learned President did not turn his mind to the question of whether he had a discretionary power rather than a mandatory one required by Section 81(a) then the rejection was an error in law (Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 and Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24). The Anisminic principles apply to inferior courts (O'Reilly v Mackman [1983] 2 AC 237 and McMenamin v AG [1985] 2 NZLR 274).
23.	To that limited extent the Applicant is entitled to rely on a right afforded by the Constitution (Levesque v AG of Canada (supra) and Gairy v AG of Grenada (Privy Council Appeal No. 29 of 2000). It is not necessary to consider this matter further since this case concerns the consideration of a statutory provision (the Act Section 81(b)).

Circumstances of the Decision
24.	The Applicant contends that there had been a failure by the President to consider the application of the Act Section 81(b). In his affidavit the Applicant attaches a letter to the Registrar of the Court dated 16 January 2009, bringing attention to the power afforded by Section 81(b) and seeking clarification of the original decision.

25.	On 10 February, the Registrar replied on behalf of the President that:

"With regard to your letter to the President requesting for an additional time to file your petition to the above matter;

Please be advised again that his Honour denies your request since it is already past the days in which you should have filed the petition."

26.	The Court accepts that the reply shows that the President was aware of his discretionary power and decided not to grant leave as permitted by the Act Section 81(b).

27.	In doing so he did not offend Article 9(1) of the Constitution.
28.	The practice in the Land and Titles Court is that interlocutory matters are often determined 'on the papers' and here there was no request to hear oral argument in support of or against the leave application. The Court accepts that the President took leave to consider or reconsider his earlier decision on receipt of the letter of 16 January 2009. He did not act ultra vires or illegally.

29.	There may be occasions for reasons of bias, absence of due process and the like where this Court may exercise prerogative power over a decision of the President or the Land and Titles Court. That right ought not be used for trivial purposes based not on substance but ritual engagement of a claimed fundamental right in cases where there is an ordinary right of appeal or the matter itself a minor procedural irregularity. The Court ought be vigilant lest sophistry is elevated to an inchoate constitutional edifice.

30.	The Land and Titles Court is itself protected by the Constitution Articles 103 and 9(3).

31.	This Court is afforded power to review matters offending the Constitution Part II by Article 73. But its powers are subject to legislative enactments and ultimately to the Constitution (Nofoaiga Ale Ulugia v President of the Land and Titles Court [2008] WSSC 52). In a case involving claim of illegality, Vaai J. said unless common law rights are "embodied under a breach of a fundamental right, the court is prevented from reviewing the decision based on common law grounds alone" (Mulitalo Penaia v Land and Titles Court [2011] WSSC, unreported 17 June).

32.	Common law rights and remedies may be exercised absent legislative provisions or prohibitions but it is the Legislative Assembly which governs those rights. Only the Constitution is paramount (Samoa Party v Attorney General [2010] WSCA 4).

Statutory Interpretation
33.	The Applicant advances two alternative arguments in support of a grant of mandamus.

34.	The first is that the Respondent's purported decision under Section 81 was not a decision at all and could not be a decision within the meaning of Section 71. In the alternative, since there was a right of appeal afforded by the Act Section 76, the only limitations to that right of appeal were orders made under Sections 49 and 50 (interim orders made by the President), 72 and 75 (offences) and the absence of a lawful decision by the President resulted in no decision protected by Section 71.

35.	The ground was well argued but the Court is satisfied that the President made an order, rightly or wrongly. The problem remains with the Act Section 78 which provides:

"No appeal shall be lodged without the leave of the President"
 who has a separate power afforded by Section 81.

36.	The argument ought fail.

37.	Finally the Applicant sought recourse in terms consistent with the decision of the High Court of Australia in Plaintiff S157/2002 v Commonwealth of Australia [2003] 211 CLR 476 which concerned privative legislation enacted under the Migration Act 1958 (Cth). That case concerned the jurisdiction and the power to grant prerogative relief by the High Court. The case does not assist the Applicant. The jurisdiction to grant prerogative relief itself was conferred on the High Court by the Constitution Section 75(v). The High Court answered the question of:

"Is section 474 of the Migration Act 1958 (Cth) invalid in respect of an application by the plaintiff to the High Court of Australia for relief under section 75 (v) of the Constitution?"

 in terms:

"Section 474 would be invalid if, on its proper construction, it attempted to oust the jurisdiction conferred on the High Court by s75 (v) of the Constitution. However, on its proper construction, it does not attempt to do so. Section 474 is valid but does not apply to the proceedings the plaintiff would initiate."

38.	The Commonwealth had attempted to prevent appeals to the Courts by legislative enactment. No identified power to the Supreme Court to grant prerogative relief is stated in the Samoan Constitution other than that stated in Article 73.

Conclusion
39.	The Applicant is unable to engage Part II of the Constitution as a basis for judicial review of a decision made by the President as stated in the letter of 10 February.

40.	The Respondent has shown, in accordance with the Supreme Court (Civil Procedure) Rules 1980 Rule 70 that 'no cause of action is disclosed.'

41.	The Motion to Strike Out is upheld.

42.	The parties are permitted to make submissions in relation to ancillary or consequential orders.

JUSTICE SLICER