IN THE SUPREME COURT OF SAMOA
HELD AT MULINU'U

BETWEEN:

TIOTIONU'UESE ATONIO AMOA, PAULI DR. JEROME AMOA and others of Togafu'afu'a and Samusu.
Applicants

AND:

LAND AND TITLES COURT a Court established pursuant to the Land and Titles Act 1981.
Respondent

Counsel: F Amoa for applicants
 M T Lui and L Vili for respondent

Hearing: 5 August 2011 

Conclusion 9 August 2011

Judgment 17 August 2011

JUDGMENT OF SAPOLU CJ

Proceedings 

1.	In these proceedings the applicants are seeking judicial review of a decision dated 9 December 2005 by the appellate division of the Land and Titles Court concerning the pule or authority over the title Amoa in Samusu, Aleipata. There were seven parties to those proceedings before the appellate division of the Land and Titles Court, four appellants and three respondents. The third respondent party Seiuli Poe did not take part in those proceedings and I need not say anything more about that party.

2.	The proceedings before the appellate division of the Land and Titles Court were concerned with four appeals from the decision dated 21 November 1994 of the trial division of the Court concerning the issue of the pule or authority over the title Amoa. The present proceedings for judicial review are not concerned with the decision of 21 November 1994 but with the decision of 9 December 2005 by the appellate division of the Court. 
 
The decision of the appellate division of the Land and Titles Court
 
3.	The decision of the appellate division of the Land and Titles Court (hereinafter referred to as the LTC) dated 9 December 2005 is in Samoan and may be set out in English, insofar as relevant, as follows: 
 
 "10 (1) The evidence presented by the parties before the Court is not sufficient to confirm the true or foundation heirs of the title Amoa of Samusu;

 (2) The authority to appoint a holder or holders of the title Amoa of Samusu is vested with the First Appellant party, the Second Appellant party, the Third Appellant party, the Fourth Appellant party, the First Respondent party and the Second Respondent party of this Court case and they constitute the Aiga Potopoto;

 (3) The appointments of Tone Ponefasio, Sione Tamiano and Taua'a Makiasi to the title Amoa are cancelled;"
 
4.	Following the decision of the LTC, the applicants on 15 July 2010 filed with this Court a motion for judicial review of that decision. This was later substituted with an amended motion for judicial review filed on 25 February 2011 following the strike out proceedings by the LTC in January 2011.

The applicants amended motion for judicial review
5.	In their amended motion for judicial review, the applicants seek an order by way of certiorari to quash para 10 (2) of the LTC's decision which vests the pule of the title Amoa in the aiga potopoto as being all the parties to the proceedings before the LTC except for the third respondent party.

6.	The grounds in support of the applicants motion may be stated as follows:

(a)	 The decision by the LTC was in breach of the applicants right to a fair trial provided in Article 9 of the Constitution because there was no evidence to support its determination that the pule of the title Amoa be vested in the aiga potopoto as defined in para 10 (2) of the Court's decision.

(b)	 The decision of the LTC was irrational and in breach of the applicants constitutional right to a fair trial because:

(i)	the LTC failed to illustrate how the parties are related and therefore constitute the aiga potopoto vested with the pule of the title Amoa,

(ii)	the decision was unreasonable and defied logic.

(c)	 The decision by the LTC was illegal and in breach of the applicants constitutional right to a fair trial because:

(i)	 it took into account irrelevant considerations,

(ii)	 it failed to take into account relevant considerations, for example, who had rendered service (tautua) to the previous holders of the title Amoa.

7.	Counsel for the applicants explained in his submissions that the gist of the case for the applicant is that there was no evidence to support the determination by the LTC that the pule of the title Amoa be vested in all the parties to the proceedings before the LTC except for the third respondent. This is a factual issue and its correctness or otherwise can be determined by referring to the decision of the LTC. 

The evidence before the appellate division of the Land and Titles Court (LTC)
8.	In the decision under review which consists of 21 pages, it is clear from para 4 at p.3 that the LTC examined not only the documentary evidence presented by the parties but also their oral testimonies. It also appears from the LTC's decision that the documentary evidence it considered included the appeals by the first, second, third, and fourth appellants, their genealogies, the written replies by the first and second respondents to the appeals, as well as the written replies by the appellants to the written replies by the respondents. Other documentary evidence which appear from the decision under review to have been considered by the LTC were the decision of the trial division of the Land and Titles Court, the written statement dated 12 March 1979 signed by Amoa Tausilia and representatives from the other sides of the family, and the document which shows those people who were the "faapogai" in the discussion and the bestowal of the title Amoa on Tausilia. The oral testimonies that were considered by the LTC were the answers given by the parties during their oral examination by the LTC. 

9.	So there was abundant evidence before the LTC. This was not a case where the LTC made a decision without any evidence to base its decision on.

10.	In para 10 (1) of its decision, the LTC said that the parties did not present sufficient evidence to confirm the true or foundation heirs of the title Amoa. This was primarily because of the conflicting genealogies and the different beliefs of the appellants as to the number and names of the previous holders of the title Amoa. Repeated reference is made by the LTC in its decision to this difficulty. This was the same difficulty faced by the trial Court.

11.	Because of the difficulty in ascertaining the true heirs of the title Amoa, the LTC said in para 5 (vi) p.6 of its decision that the next step was for the Court to ascertain the heirs which should be included in the aiga potopoto. Further on in para 5 (vii), the LTC said that because of the conflicts in the evidence, including the genealogies, all the "heirs" of the family were eligible and competent to participate in the making of an appointment or appointments to the title Amoa. So it was because of the nature of the evidence that was before the LTC that led the LTC to make the determination that the pule (authority) to appoint a holder or holders to the title Amoa is vested in the aiga potopoto which consists of the first appellant party, the second appellant party, the third appellant party, the fourth appellant party, the first respondent party and the second respondent party. There was, therefore, a clear link between this determination and the evidence that was before the LTC.

12.	I turn now to consider whether there was evidence before the LTC which justified the LTC in concluding that the pule of the title Amoa be vested with the first appellants, the second appellants, the third appellants, the fourth appellants, the first respondents, and the second respondents which are to constitute the aiga potopoto.

Different heirs and the pule of a matai title
13.	 Based on my experience as President of the Land and Titles Court for 13 years, the pule of a matai title is normally vested with the heirs to that title. Such heirs include the true or foundation heirs (suli moni or suli faavae), adopted heirs (suli tamafai), and heirs who have no blood connections to a matai title but have become members of the family for that matai title because of the services they have rendered to the family (suli tautua). These different heirs may constitute the aiga potopoto which holds the pule of a matai title. The true or foundation heirs would naturally have the right to be included in the aiga potopoto. The adopted heirs and the "suli tautua" may also be included in the aiga potopoto. So there is a distinction between a true heir, an adopted heir, and a 'suli tautua'.

14.	The difficulty faced by the LTC was that it could not confirm with certainty the true or foundation heirs of the title Amoa because of the extreme discrepancies in the evidence, including conflicting genealogies, presented by the parties. If the LTC had stopped there, the title Amoa would have had the rare distinction of, perhaps, being the only matai title in Samoa without anyone exercising pule over it. This would have been chaotic. However, the LTC did not stop there. It went further and determined on the basis of the evidence before it the aiga potopoto of the title Amoa and who were to be the members of that aiga potopoto to hold the pule of the title Amoa.

15.	It would appear, that to avoid the title Amoa being without a pule because the LTC could not determine the true heirs from the conflicting genealogies, the next step the LTC decided to take was to constitute an aiga potopoto for the title Amoa and define its membership on the basis of the evidence before it. In my respectful view, this was a reasonable and sensible step for the LTC to take otherwise the title Amoa would be without a pule, which is something unheard of in respect of an important matai title in this country. So the important issue to my mind is not whether there should be an aiga potopoto to hold and exercise authority over the title Amoa but whether on the basis of the evidence before the LTC each of the parties included in the aiga potopoto of the title Amoa should have been so included. This requires consideration of whether each of the parties included in the aiga potopoto has any connection to the title Amoa.

Connections of the various parties to the title Amoa
(a)	 First appellants

16.	In my view, there was sufficient evidence before the LTC to show that the first appellants to the proceedings before that Court are related to the title Amoa and therefore should be included in the aiga potopoto that holds the pule over the title Amoa. The relevant evidence is shown in the decision of the LTC under review. Firstly, there was the genealogy of the first appellants to show that they are true heirs of the title Amoa even though their genealogy was in conflict with the genealogies of the other parties. Secondly, there was the evidence of the third and fourth appellants before the LTC that the first appellants, the second appellants, and the second respondents are heirs of Amoa Lavelua the adopted son of Amoa Filimaua from his last marriage to Tanealuma. Thirdly, the first appellants and the second appellants are occupying "Falepule" the traditional residential site (laoa) of the title Amoa. Fourthly, the documentary evidence before the LTC which shows those people who signed as the "faapogai" for the bestowal of the title Amoa on Tausilia, the father of the applicants in the present proceedings, were heirs of Amoa Filimaua and Amoa Lauelua. The first appellants according to their evidence, which was supported by the evidence of the third and fourth appellants, are heirs of Amoa Lavelua. 

17.	Thus, there was sufficient evidence before the LTC to show that the first appellants are heirs of Amoa Lavelua and therefore related to the title Amoa. The difficulty faced by the LTC due to the conflicting genealogies was whether Amoa Lavelua was a true heir or an adopted heir.

(b)	 Second appellants
18.	The second appellants in the proceedings before the LTC are the applicants for judicial review before this Court. They claimed before the LTC that they are the only true or foundation heirs of the title Amoa. This was strongly opposed by the other parties who claimed that the second appellants are adopted heirs. Whether that is true or not, there was sufficient evidence before the LTC to confirm that the second appellants are heirs of the title Amoa.

19.	In the first place is the evidence of the second appellants themselves that they are true heirs of the title Amoa. Secondly, all the other parties in their evidence including their genealogies confirm that the last two holders of the title Amoa, namely, Amoa Lolesio and Amoa Tausilia were from the second appellants side of the family. Thirdly, the evidence given by the third and fourth appellants showed that the first appellants, the second appellants, and the second respondents are heirs of Amoa Lavelua. Fourthly, the first appellants and the second appellants are occupying "Falepule" the traditional residential site (laoa) of the title Amoa.

20.	Thus, there was sufficient evidence before the LTC to show that the second appellants are heirs of the title Amoa. As already mentioned, the difficulty faced by the LTC was to determine from the conflicting evidence and genealogies presented by the parties the true or foundation heirs of the title Amoa.

(c)	 Third appellants
21.	I am also of the view that there was sufficient evidence before the LTC to show that the third appellants are heirs of the title Amoa being descendants of Amoa Filimaua. Firstly, there was the evidence of the third appellants themselves which showed that they are true heirs of Amoa Filimaua and that they are occupying the traditional residential site of the title Amoa (laoa) together with the first and second appellants. Secondly, the evidence given by the fourth appellants before the LTC was that their party, the third appellants, and the first respondents are heirs of Amoa Filimaua. Thirdly, the first respondents in their evidence supported the evidence given by the third appellants that the third appellants, the fourth appellants, and the first respondents are heirs of Amoa Filimaua. Fourthly, was the documentary evidence which shows that those who signed as the "faapogai" for the bestowal of the title Amoa on Tausilia from the second appellants side of the family were the heirs of Amoa Filimaua and Amoa Lavelua and the third appellants claim they are heirs of Amoa Filimaua.

22.	Thus, there was sufficient evidence before the LTC for the LTC to conclude that the third appellants are heirs of the title Amoa and are members of the Amoa family.

(d)	 Fourth appellants
23.	Again there was sufficient evidence before the LTC to show that the fourth appellants are heirs of the title Amoa. Firstly, there was the evidence given by the fourth appellants themselves that they are true heirs of the title Amoa being heirs of Amoa Filimaua. Secondly, there was the evidence of the third appellants that the fourth appellants, the first respondents, and themselves are heirs of Amoa Filimaua. Thirdly, there was the evidence given by the first respondents in support of the evidence given by the third appellants. Fourthly, was the documentary evidence which shows that the "faapogai" in the bestowal of the title Amoa on Tausilia were the heirs of Amoa Lavelua and Amoa Filimaua which includes the fourth appellants.

24.	So there was sufficient evidence before the LTC to show that the fourth appellants are heirs of the title Amoa being heirs of Amoa Filimaua.

(e)	 First respondents

25.	There was also sufficient evidence before the LTC to show that the first respondents are heirs of the title Amoa being heirs of Amoa Filimaua. Firstly, there was the evidence of the third appellants that the fourth appellants, the first respondents and themselves are true heirs of the title Amoa Filimaua. Secondly, there was the evidence of the fourth appellants to the same effect. Thirdly, there was the evidence given by the first appellants that it is themselves, the first respondents and the second respondents that hold the pule to make appointments to the title Amoa.

26.	So there was clear evidence before the LTC to show that the first respondents are heirs of the title Amoa from Amoa Filimaua.

(f)	 Second respondent 
27.	There was also ample evidence before the LTC to show that the second respondents are heirs of the title Amoa. Firstly, there was the evidence of the second respondents themselves that they are from the same side of the family of the title Amoa as the first appellants and that they are the descendants of Amoa Sione. Secondly, there was the evidence given by the first appellants that the pule of the title Amoa is with their party, the first respondents, and the second respondents who are the heirs of Amoa Sione. Thirdly, there was the evidence given by the third and fourth appellants that Sione was bestowed with the title Amoa by Mataafa Iosefo. Fourthly, there was the evidence given by the third and fourth appellants that the first appellants, the second appellants, and the second respondents are heirs of Amoa Lavelua whilst the third appellants, the fourth appellants, and the first respondents are heirs of Amoa Filimaua. Fifthly, the LTC pointed out in its decision that the written statement dated 12 March 1979 and signed by Amoa Tausilia and others which was before the Land and Titles Court in LC 2764 shows that Sione the son of Atonio the brother of Tiotionuuese had held the title Amoa. The second respondents are descendants of Atonio and his son Amoa Sione while the second appellants are descendants of Tiotionuuese the brother of Atonio.

28.	So there was ample evidence before the LTC to show that the second respondents are heirs of the title Amoa being descendants of Amoa Sione.

29.	As I have already mentioned, this was not a case where there was no evidence upon which the LTC based its decision to establish an aiga potopoto and to define its membership. There was sufficient evidence to show that all the parties who were present before the LTC were heirs of the title Amoa and therefore related to the title Amoa. The first appellants, the second appellants, and the second respondents being the heirs of Amoa Lavelua and the third appellants, the fourth appellants, and the first respondents being the heirs of Amoa Filimaua. The difficulty faced by the LTC was not in determining which of the parties are heirs and which are not. There was sufficient evidence to show that all the parties before the LTC are connected to the title Amoa and are heirs of the title Amoa. The difficulty faced by the LTC was in determining which of the parties are the true or foundation heirs of the title Amoa because of the extreme discrepancies in the evidence including the genealogies presented by the parties. 

30.	The LTC therefore decided to establish an aiga potopoto for the title Amoa to consist of the heirs of the title Amoa which included all the parties who were present before the LTC and to vest the pule of the title Amoa in that aiga potopoto. In the circumstances, that was a logical and sensible step for the LTC to take otherwise the title Amoa would be without a pule.

The applicants' grounds of review
31.	As already mentioned, the applicants motion for judicial review is directed to para 10 (2) of the LTC's decision which states that the pule or authority to appoint a holder or holders of the title Amoa is vested with the first appellant party, the second appellant party, the third appellant party, the fourth appellant party, the first respondent party and the second respondent party which constitute the aiga potopoto of the title Amoa. The applicants claim that the LTC in making this determination had committed errors of law. These errors of law are: (a) there was "no evidence" or "no probative evidence" to support the LTC's determination, (b) the determination is irrational as it is unreasonable and defies logic, and (c) the determination is illegal as the LTC took into account irrelevant considerations or failed to take into relevant considerations.

32.	Errors of law are now generally considered to be jurisdictional errors, and the term 'error of law' is now generally used instead of the term 'jurisdictional error'. The error must be a material error of law in the sense that it affects the outcome of the decision that was made. If the error of law is not material in that sense, the Court in the exercise of its discretion may not grant the remedy sought by a party.

33.	In Constitutional and Administrative Law in New Zealand (2001) 2nd ed by PA Joseph, the learned author states at para 21.4.1 at p.815:

 "[The] law has progressed from the language of 'jurisdictional error' to the simpler and more direct expression 'error of law'. The notion of jurisdictional error rested on the elusive concept of jurisdiction. In its original sense, 'jurisdiction' meant the power to inquire or proceed. Only errors made at the outset were 'jurisdictional'. If any authority had correctly entered upon this inquiry, error (other than errors on the face of the record) were within jurisdiction and unimpeachable. However, that usage became strained when Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 extended the term 'jurisdictional error to include error made in the course of proceedings, as when an authority acts in bad faith, or for an improper purpose, or in breach of natural justice."

34.	What made Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 a landmark decision in English administrative law was that it rendered redundant what had been up to that time the distinction between 'jurisdictional error' and 'non-jurisdictional error' which had become difficult to sustain. Anisminic made almost every error of law a jurisdictional error. As a result, the jurisdiction of the Courts to review errors of law committed by an authority was greatly expanded. It was no longer restricted to errors committed by an authority before it entered into an inquiry ('jurisdictional error' in the traditional sense) but was extended to errors committed by an authority after it entered upon an inquiry ('non-jurisdictional error' in the traditional sense). It was sometimes said that a 'jurisdictional error' was an error committed by an authority outside of its jurisdiction whilst a 'non-jurisdictional error' was an error committed by an authority within its jurisdiction. This was an abbreviated way of explaining the distinction between jurisdictional error and non-jurisdictional error.

35.	 The passage in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 that was often cited to show that the distinction between 'jurisdictional error' and 'non-jurisdictional error' in English law has been made redundant is contained in the judgment of Lord Reid. His Lordship said at p. 171:

 "It has sometimes been said that it is only where a tribunal acts without jurisdiction that its decision is a nullity. But in such cases the word 'jurisdiction' has been used in a very wide sense and I have come to the conclusion that it is better not to use the term except in the narrow and original sense of the tribunal being entitled to enter on the inquiry in question. But there are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the inquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. On it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive. But if it decides a question remitted to it for decision without committing any of those errors it is as much entitled to decide that question as wrongly as it is to decide it rightly".

36.	As it would appear from the above passage towards the end, even though the scope of 'jurisdictional error' was greatly extended to include much of the area which was used to be confined to 'non-jurisdictional error', Lord Reid was saying that some errors may still remain 'non-jurisdictional'. It is difficult to see what those errors may be given the very broad scope of 'jurisdictional error' as explained by the House of Lords in Anisminic. To what extent the distinction between jurisdictional error and non-jurisdictional error still survives today in English law is not an issue in these proceedings. The New Zealand Courts have followed Anisminic. However, in Australia the distinction between 'jurisdictional error' and 'non-jurisdictional error' has been maintained: see Craig v South Australia (1995) 184 CLR 163; Judicial Review of Administrative Action (2009) 4th ed by Professor Mark Aronson et al pp 13-14. In England and New Zealand, the term 'error of law' is now generally used instead of 'jurisdictional error'.

37.	The concept of 'error of law' includes all three of the modern grounds of judicial review, namely, illegality, procedural fairness (or procedural unfairness), and irrationality (or unreasonableness). In Constitutional and Administrative Law in New Zealand (2001) 2nd, para 21.4.1 at p. 816, the learned author states:

 "The expression 'error of law' encapsulates illegality as a ground of review. It is no longer legally relevant (as it once was) to ask whether the error caused the decision-maker to exceed its jurisdiction. All a plaintiff need show is that the decision-maker erred and the error was material (the error must influence the outcome of the decision). 'The error has to be one which affected the actual making of the decision and effected the actual decision itself': Peters v Davison [1999] 2 NZLR 164 at 202 per Thomas J. In Lewis v Wilson and Horton Ltd [2000] 3 NZLR 546, the Court of Appeal held that procedural unfairness may amount to a reviewable error of law". 

38.	In Judicial Review of Administrative Action (199) 5th ed by de Smith, Woolf and Jowell, the learned authors at 5-090 (5) at p. 286:

 "The concept of error of law includes the giving of reasons that are bad in law or (where there is a duty to give reasons) inconsistent, unintelligible or substantially inadequate. It includes also the application of a wrong legal test to the facts found, taking irrelevant considerations into account and failing to take relevant considerations into account, exercising a discretion on the basis of any other incorrect legal principle, misdirection as to the burden of proof, and wrongful admission or exclusion of evidence, as well as arriving at a conclusion without any supporting evidence. Errors of law also includes decisions which are unreasonably burdensome or oppressive. Thus, whether or not the drawing of an inference from the primary facts, or the application of a statutory term to the facts and inferences drawn therefrom, is held or assumed to be a matter of fact (or fact and degree) or a matter of law, the Court may still hold the decision erroneous in point of law if any of the above defects is present". 

39.	Of the grounds relied upon by the applicants in their motion for judicial review, the ground of "no evidence" or "no probative evidence" to support the LTC's determination in para 10(2) of the LTC's decision would come under the modern ground of review of irrationality or unreasonableness. The ground of the alleged failure of the LTC to illustrate how the parties are related and therefore constitute the aiga potopoto vested with the pule of the title Amoa would also come under the modern ground of review of irrationality or unreasonableness. The ground of the alleged failure of the LTC to take into account relevant considerations and the alleged taking into account of irrelevant considerations would come under the modern ground of illegality. As already mentioned, the concept of error of law includes illegality, procedural fairness (or procedural unfairness) and irrationality (or unreasonableness) as grounds of review. For a decision to be set aside for any error of law, the error of law has to be material in the sense that it affects the outcome of the decision. If the error is not material to the outcome of the decision, the Court in the exercise of its discretion may refuse to grant a remedy.

40.	 In respect of the applicants grounds of "no evidence" and the alleged absence in the LTC's reasoning of any explanation as to how the parties are related and therefore constitute the aiga potopoto vested with the pule of the title Amoa, I wish to refer again to Judicial Review of Administrative Action (1995) 5th ed by de Smith, Woolf and Jowell. At 13-019, p.559 of that text, the learned authors state:

"Although the terms irrationality and unreasonableness are these days often used interchangeably, irrationality is only one facet of unreasonableness. A decision is irrational in the strict sense of that term if it is unreasoned; if it is lacking ostensible logic or comprehensible justification. Instances of irrational decisions include those made in an arbitrary fashion, perhaps 'by spinning a coin or consulting an astrologer'. 'Absurd' or 'perverse' decisions may be presumed to have been decided in that fashion, as may decisions where the given reasons are simply unintelligible. Less extreme examples of the irrational decision include those in which there is an absence of logical connection between the evidence and the ostensible reasons for the decision, where the reasons display no adequate justification for the decision, or where there is absence of evidence for the decision". 

41.	It appears from the above passage from Judicial Review of Administrative Action (1995) 5th ed by de Smith, Woolf and Jowell at para 13-019 p. 559 that under the modern law of judicial review, the English Courts have lowered the threshold test for review on the ground of irrationality or reasonableness from extreme Wednesbury unreasonableness which equates with senselessness to lesser examples of unreasonableness which would include where there is no logical connection between the evidence and the reasons for the decision, where the reasons show no adequate justification for the decision, or where there is no evidence to support a decision.

42.	The New Zealand Courts also appear to have followed a similar approach to review on the ground of irrationality or unreasonableness as the English Court have done. In Constitutional and Administrative Law in New Zealand (2001) 2nd ed by PA Joseph, the learned author states at para 22.3.2 at p. 836:

 "The New Zealand cases paralleled developments in the English Courts. From the early 1980s, the Courts began lowering the Wednesbury threshold to fit their more exacting standards of administrative 'good behaviour'. They set aside decisions that were unfair or unreasonable in the wider sense without referring to Wednesbury standards.

43.	In the English case of Ashbridge Investments Ltd v Minister of Housing and Local Government [1965] 1 WLR 1320 cited by counsel for the applicants, Lord Denning M R said at p. 1326:

 "[The] Court can interfere with the Minister's decision if he has acted on no evidence; or if he has come to a decision to which on the evidence he could not reasonably come; or if he has given a wrong interpretation to the word of the statute; or he has taken into consideration matters which he ought not to have taken into account, or vice versa; or has otherwise gone wrong in law. It is identical with the position when the Court has power to interfere with the decision of a lower tribunal which has erred in point of law". 

44.	Applying the above statements of principle to the applicants review grounds of "no evidence" and the alleged failure of the LTC to illustrate how the parties are related and therefore constitute the aiga potopoto vested with the pule of the title Amoa, I am of the respectful view that there was sufficient evidence before the LTC to support the LTC's determination in para 10(2) of its decision and to show that all the parties are related to the title Amoa being heirs of Amoa Lavelua and Amoa Filimaua. As already pointed out in para 8 of this judgment, the evidence that was before the LTC consisted of documentary evidence and the oral testimonies of the parties. The documentary evidence presented by the parties included the appeals by the appellants, the replies by the respondents to the appeals, the replies by the appellants to the replies by the respondents, as well as the parties genealogies. Other documentary material that was considered by the LTC were the decision of the trial division of the Land and Titles Court, the written statement dated 12 March 1979 signed by Amoa Tausilia and the representatives of the other sides of the Amoa family as well as the document which shows the people who were the "faapogai" in the discussion and the bestowal of the title Amoa on Tausilia the "father" of applicants. 

45.	The present applicants were critical of the LTC taking into consideration the document which shows the people who were the "faapogai" in the discussion and bestowal of the title Amoa on Tausilia the "father" of the applicants. They claimed that that document was not before the LTC at the hearing of the appeals so that they had no opportunity to comment on its authenticity. This is correct as it appears from para 8 (a) and (e) p.18 of the LTC's decision. But what had happened, as it appears from p.33 of the transcript of the proceedings before the LTC, was that the fourth appellants in those proceedings had raised this issue about the "faapogai" in the bestowal of the title Amoa on Tausilia. In reply to questions from the LTC, the fourth appellants said that the "faapogai" in the bestowal of the title Amoa on the Tausilia were Laulu Leia, Filimaua Poasa, Fuimaono Peato, and Tufaatu Iele. Laulu Leia was an heir of Amoa Lavelua and Filimaua Poasa, Fuimaono Peato, and Tufaatu Iele were heirs of Amoa Filimaua. In other words, the "faapogai" in the bestowal of the title Amoa on Tausilia were the heirs of Amoa Lavelua and Amoa Filimaua.

46.	As it appears from para 8 (a) and (e) of the LTC's decision, the LTC enquired of the Court registry whether there was documentary material in the Court records regarding the "faapogai" in the bestowal of the title Amoa on Tausilia. The reply from the Court registry was that there was no such documentary material. However, after the Court proceedings had been concluded, the Court registry produced a document which shows that there were six people who were the "faapogai" in the bestowal of the title Amoa on Tausilia. Thoe people were from the heirs of Amoa Lavelua and Amoa Filimaua. Even though this document was not before the LTC during the hearing of the appeals so that none of the parties had the opportunity to comment on its authenticity, counsel for the applicants did not address the authenticity or otherwise of this document before this Court. In any event, even if this document is excluded, there was still the oral testimony of the fourth appellants before the LTC to show that the "faapogai" in the bestowal of the title Amoa on Tausilia were the heirs of Amoa Lavelua and Amoa Filimaua. Amoa Tausilia as it appears from the evidence was an heir of Amoa Lavelua. There was also sufficient in the other evidence before the LTC to show that all the parties are heirs of the title Amoa.

47.	This was not a case where there was "no evidence" before the LTC to show that all the parties were heirs of the title Amoa. There was ample evidence before the LTC which was reasonably capable of supporting the finding that all the parties are heirs of the title Amoa. The first appellants, the second appellants, and the second respondents being heirs of Amoa Lavelua and the third appellants, the fourth appellants, and the first respondents being heirs of Amoa Filimaua.

48.	However, it was not possible for the LTC to confirm with certainty from the extreme discrepancies in the evidence, including the genealogies, who the true or foundation heirs of the title Amoa are. For that reason the LTC in para 10 (2) of its decision decided to vest the pule of the title Amoa in the aiga potopoto of the title Amoa which was to consist of all the parties before the LTC. In my respectful view, this was a reasonable and sensible determination for the LTC to make, otherwise the title Amoa would be without a pule which is something unheard of in this country in respect of a matai title, especially such an important matai title as the title Amoa.

49.	The common law grounds (a) and (b) of the applicants motion for judicial review which come under the modern ground of irrationality are therefore dismissed.

50.	The third common law ground of the applicants motion for judicial review as it appeared from the submissions by counsel for the applicants is that the LTC in determining the membership of the aiga potopoto vested with the pule of the title Amoa failed to take into account a relevant consideration, namely, the tautua of each party to the title Amoa. This would be under the modern ground of review of illegality. The last holder of the title Amoa was Amoa Tausilia from the applicants side of the family. He passed away many years ago so that could not have been any services (tautua) rendered to a holder of the title Amoa since that time.

51.	The pule of a matai title, particularly if it is an important title, is normally vested in the heirs of that matai title. That also applies to the title Amoa in Samusu, Aleipata. The heirs of a matai title are often classified into three categories, the true heirs, the adopted heirs (suli tamafai), and the suli tautua or those people who have been recognised as heirs because of the services they have rendered to the family. The aiga potopoto of a family with the pule of a matai title would normally be made up of those three categories of heirs. 

52.	In this case, it was not possible for the LTC to determine who the true heirs are. None of the parties contended before the LTC that they are adopted heirs or suli tautua. They were all claiming to be true heirs of the title Amoa. So the question of service (tautua) never entered into the contest before the LTC. However, the evidence before the LTC showed that all the parties are heirs of the title Amoa with the first appellants, the second appellants, and the second respondents being heirs of Amoa Lavelua and the third appellants, the fourth appellants, and the first respondents being heirs of Amoa Filimaua. In other words, all the parties are heirs of the title Amoa. As such, they are entitled to be included in the aiga potopoto of the title Amoa regardless of whether or not they have been rendering service (tautua) to the holder of the title Amoa which has been vacant for a long time or to the family. Being heirs is their qualification for inclusion in the aiga potopoto with the pule of the title Amoa.

53.	If the rendering of service is to be the qualification for inclusion in the aiga potopoto of a matai title, countless heirs would be excluded. It is a fact of our Samoan way of life, of which I take judicial notice, that many heirs do not render any service (tautua) at all to the holder of a matai title or to the family. But that does not take away their rights as heirs to a matai title or to be included in the aiga potopoto of a matai title of their family.

54.	I am, therefore, not able to accept the contention for the applicants that the decision of the LTC is illegal because the LTC failed to take into account a relevant consideration, namely, service (tautua). Being heirs of the title Amoa, all the parties were entitled to be included in the aiga potopoto vested with the pule of the title Amoa. The third common law ground of the applicants motion for judicial review based on illegality is therefore also dismissed.

55.	It follows from what has been said, that I am also not able to accept the contention on behalf of the applicants that the alleged errors of law, irrationality and illegality, either individually or collectively constitute a breach of the right to a fair trial provided in Article 9 of the Constitution. 

The Jurisdiction of the Supreme Court to review decisions of the Land and Titles Court.
56.	The jurisdiction of the Supreme Court to review decisions of the Land and Titles Court for breach of a fundamental right provided in Part II of the Constitution is well established. Aloimaina Ulisese v Land and Titles Court (1998) (unreported judgment of Young J delivered on 4 November 1998); Sefo v Land and Titles Court [2000] WSSC 47; Asiata Peniamina v Land and Titles Court [2004] WSSC 12; Ale Ulugia Nofoaiga v Land and Titles Court [2008] WSSC 52.

57.	The question for determination in these proceedings is whether the Supreme Court has jurisdiction to review decisions of the Land and Titles Court on the common law grounds of illegality, procedural unfairness, and irrationality even though there has been no breach of a fundamental right provided in Part II of the Constitution. Miss Vili who presented the submissions for the LTC argued that the Supreme Court may only review a decision of the Land and Titles Court on common law grounds where those grounds can be tied in to a breach of a fundamental provision of the Constitution. This seems to me to be another way of saying that this Court may only review a decision of the Land and Titles Court where there has been a breach of a fundamental right provision of the Constitution. This argument relies on the recent judgment of this Court in Penaia v Land and Titles Court [2011] WSSC 84 where Vaai J said:

 "[Unless] the common law grounds are tied in with or embodied under a breach of a fundamental right, the Court is prevented from reviewing the decision based on the common law grounds alone".

58.	In Sefo v Land and Titles Court [2000] WSSC 47 Wilson J had also said:

 "This Court has a restricted jurisdiction to hear and determine questions as to the jurisdiction of the Land and Titles Court. The restricted jurisdiction is confined to the issue of whether Part II of the Constitution has been or is likely to be breached (See Aloimaina Ulisese and Others v Land and Titles Court and Others (unreported decision of the Supreme Court dated 4 November 1998)).

59.	The basis of the restriction on the jurisdiction of the Supreme Court to review the decisions of the Land and Titles Court only for an alleged breach of a fundamental right provision in Part II of the Constitution and not on common law grounds alone needs to be explained. It seems to me that this position can be explained on policy and legal grounds. I start with the policy grounds. Firstly, the Land and Titles Court is a specialist Court which deals with a specialised area of disputes, namely, disputes relating to matai titles and customary lands which are very important matters in the eyes of many Samoans. The requirement that every Judge and Assessor of the Land and Titles Court must be the holder of a matai title further reflects the specialist nature of the Land and Titles Court. Secondly, if the Supreme Court is to exercise general supervisory jurisdiction over decisions of the Land and Titles Court, the decisions of the Supreme Court are, of course, open to appeal to the Court of Appeal. This means that a litigant to a dispute relating to a matai title or customary land will start off at the trial division of the Land and Titles Court. If there is an appeal against the decision of the trial division, the matter will go before the appellate division of the Land and Titles Court. If a party is dissatisfied with the decision of the appellate division of the Land and Titles Court and there is a right to seek judicial review in the Supreme Court, the matter will come up before the Supreme Court. If a party is dissatisfied with the decision of the Supreme Court, the matter will end up by way of an appeal before the Court of Appeal. This will be a very costly, time-consuming, and long drawn out process. Thirdly, a matai title or developments relating to customary land can be held up for years as a dispute is taken through the full spectrum of the Court process from the trial division of the Land and Titles Court, to the appellate division of the Land and Titles Court, to the Supreme Court, and finally to the Court of Appeal. Fourthly, is the "floodgates" argument raised by counsel for the LTC. It is common knowledge that most Samoans would not hesitate to go to the Land and Titles Court when the matais titles or customary lands of their families are affected. It is also a known fact that a large majority of the decisions of the trial division of the Land and Titles Court are appealed to the appellate division of the Court. The concern expressed by counsel for the LTC is that to allow decisions of the appellate division of the Land and Titles Court to be reviewed generally by the Supreme Court on common law grounds could open the floodgates to numerous decisions of the Land and Titles Court being brought before this Court because of the broad scope of the concept of error of law. And decisions of this Court are generally appealable to the Court of Appeal. In my view, the floodgates argument has merit given the importance of matai titles and customary lands to very many Samoans.

60.	There was another argument raised by counsel for the LTC. This is based on the exclusionary provisions of s.34 of the Land and Titles Act 1981 and the privative clause in s.71. Section 34, insofar as relevant, provides:

 "(1) The Court shall continue to have all the jurisdiction it exercised prior to this Act coming into force.

 "(2) In particular the Court shall have exclusive jurisdiction:

"(a) In all matters relating to Samoan names and titles;

"(b) …

"(c) In all claims and disputes between Samoans relating to customary lands, and the right of succession to property held in accordance with customs and usages of the Samoan race."

61.	Section 71 of the Act provides: 

 "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".

62.	Perhaps, I should add here s.37 which provides:

 "(1) In all matters before it the Court shall apply

 "(a) Custom and usages;

 "(b) The law relating to custom and usage;

 "(c) This Act and any other enactment expressed to apply to the Court.

 "(2) Subject to subsection (1), the Court shall decided all matters in accordance with what it considers to be fair and just between the parties".

63.	The question for determination here is not whether the Supreme Court has jurisdiction to review the decision of an inferior Court as such, for example, the Land and Titles Court but whether the Supreme Court has jurisdiction to review the decision of an inferior Court on common law grounds where there is a privative or ouster clause. I will refer first to the English authorities.

64.	In R v Lord President of the Privy Council, ex parte Page [1993] AC 683, Lord Griffiths who was in the majority said at p.693:

 "It is in my opinion important to keep the purpose of judicial review clearly in mind. The purpose is to ensure that those bodies that are susceptible to judicial review have carried out their public duties in the way it was intended they should. In the case of bodies other than Courts, insofar as they are required to apply the law they are required to apply the law correctly. If they apply the law incorrectly they have not performed their duty correctly and judicial review is available to correct their error of law so that they may make their decision upon a proper understanding of the law.

 "In the case of inferior Courts, that is, Courts of a lower status than the High Courts, such as the justices of the peace, it was recognised that their learning and understanding of the law might sometimes be imperfect and require correction by the High Court and so the rule evolved that certiorari was available to correct an error of law of an inferior Court. At first it was confined to an error on the face of the record but it is now available to correct any error of law made by an inferior Court. But despite this general rule Parliament can if it wishes confine a decision on a question of law to a particular inferior Court and provide that the decision shall be final so that it is not to be challenged either by appeal or judicial review. Such a case was Pearlman v Keepers and Governors of Harrow School [1979] QB56 in which the dissenting judgment of Geoffrey Lane L.J. was approved by the majority of the House of Lords in In re a Company (sub nom. In re Recal Communications Ltd) [1981] AC 374". (emphasis mine] 

65.	Lord Browne-Wilkinson who was also in the majority, and with whose judgment Lord Keith concurred, said at p. 703:

 "In Pearlman v Keepers and Governors of Harrow School [1979] QB 56 a statute provided that the decision of the County Court as to whether works constituted an 'improvement' within the meaning of the Act should be 'final and conclusive'…. [The] dissenting judgment of Geoffrey Lane LJ has been approved by the Privy Council in South East Asia Fire Bricks v Non-Metallic Mineral Products Manufacturing Employees Union [1981] AC 363, 370 F-F and by a majority in this House in In re a Company [1981] AC 374, 384B-and 390 F-3910. In the latter case, Lord Diplock pointed out, at pp 382-383, that the decision in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 applied to decisions of administrative tribunals or other administrative bodies made under statutory powers: in those cases there was a presumption that the statute conferring the power did not intend the administrative body to be the final arbiter of questions of law. He then contrasted that position with the case where a decision-making power had been conferred on a Court of Law. In that case no such presumption could exist: on the contrary where Parliament had provided that a decision of an inferior Court was final and conclusive the High Court should not be astute to find that the inferior Court's decision on a question of law had not been made final and conclusive, thereby excluding the jurisdiction to review it" (emphasis mine)

66.	In Judicial Review of Administrative Action (1995) 5th ed 5-037 at p. 247, the learned authors are critical of the statements made by Lord Griffiths and Lord Browne-Wilkinson in R v Lord President of the Privy Council, ex parte Page [1993] AC 683, 693, 703 and have labeled those statements as strictly obiter. However, there seems to be no subsequent decision of the House of Lords which has overruled those statements of principle.

67.	In the New Zealand case of Bulk Gas Users Group v Attorney-General [1983] NZLR 29 which was concerned with a privative clause in relation to the exercise by an administrative authority of his duties under the relevant Act, Cooke J said at p. 133:

 "It is generally accepted in New Zealand that an Act may empower an authority to decide a question of law conclusively and that a privative clause of this kind will then protect the authority's decision even though an error of law (in the opinion of the of Court) may be apparent on the record: Attorney-General v Car Haulaways (NZ) Ltd [1974] 2 NZLR 331. 

 "But it is clear that such a clause does not apply if the decision results from an error on a question of law which the authority is not empowered to decide conclusively, even though in carrying out its functions it will have to form a working opinion on the question. Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 is the leading modern case and more recently South East Asia Fire Bricks Sdn Bhd v Non-Metallic Mineral Products Manufacturing Employees Union [1981] AC 363 is to the same effect.

 "It is further clear that the Courts of general jurisdiction will be slow to conclude that power to decide a question of law conclusively has been conferred on a statutory authority or tribunal. Those Courts may rather more readily accept such a result if the body concerned is one of the ordinary Courts, albeit of limited and 'inferior' jurisdiction. In Re Racal Communications Ltd [1981] AC 374, 382-383, Lord Diplock put it that there is a 'presumption that where Parliament confers on an administrative tribunal or authority, as distinct from a Court of law, power to decide particular questions defined by the Act conferring the power, Parliament intends to confine that power to answering the question as it has been so defined: and if there is any doubt as to what the question is, this is a matter for the Courts of law to resolve in fulfillment of their constitutional role as interpreters of the written law and expounder of the common law and rules of equity". (emphasis me) 

68.	A somewhat different position from Bulk Gas Users Group v Attorney-General [1983] NZLR 129 was taken by the New Zealand Court of Appeal in the subsequent case of Ramsay v Wellington District Court [2005] NZCA 196. In Ramsay, McGrath J in delivering the judgment of the Court said at para [29]:

 "In the interpretation of statutory provisions which exclude the jurisdiction of the High Court to review decisions of statutory authorities for error of law, there is a strong presumption of interpretation that it was not Parliament's purpose to allow the decision maker finally to decide any question of law: Bulk Gas Users Group v Attorney-General [1983] NZLR 129, 133 per Cooke J. Even where the decision is one of the District Court acting as an appellate tribunal, in considering the scope of a particular privative provision the Court will proceed on the basis that it is unlikely that Parliament would wish to give absolute protection to a decision in spite of it being ultra vires and outside the scope of the decision maker's power: O'Regan v Lousich: Proprietors of Mawhera v Maori Land Court [1995] 2 NZLR 620, 627 (emphasis mine)

69.	It would appear from Ramsay that there is a strong presumption of statutory interpretation that a privative clause is unlikely to give absolute protection to a decision of an inferior Court, such as the District Court, which is 'outside the scope of its power'. Even if what was said in Ramsay is to be accepted as correct, it does not apply in this case. The reason is that the decision by the LTC was not made 'outside the scope of its power' but 'within the scope of its power'. The LTC has the power to hear appeals from the trial division of the Court on a matter relating to a matai title. The errors of law alleged by the applicant to have been committed by the LTC occurred during the exercise by the LTC of its power. It was also not contended for the applicants that the LTC did not have the power to hear and determine the issue that was before it or that the issue was outside the scope of the LTC's power. The effect of the contention for the applicants is that the LTC committed errors of law during the exercise of its power. So the determination made by the LTC was within its power. The principle in Ramsay which applies to a decision made outside of a decision maker's power, would therefore not apply to the privative clause in this case where the alleged error occurred during the exercise by the LTC of its power.

70.	In terms of the traditional jurisdictional error and non-jurisdictional error dichotomy which was rendered redundant in English law by Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 but which still remains in Australia by reason of Craig v South Australia (1995) 184 CLR 163, the alleged error of law in this case (if there was one) is not a jurisdictional error but a non-jurisdictional error. It is not a jurisdictional error in the traditional sense of that term because it was not an error committed outside of the LTC's jurisdiction, that is to say, beyond the scope of the LTC's power. The alleged error would be a non-jurisdictional error in the traditional sense of that term because the error is alleged to have been committed by the LTC within its jurisdiction, that is to say, during the exercise by the LTC of its jurisdiction. The statement in Ramsay refers only to the non-applicability of a privative clause in the context of an error committed by the District Court 'outside the scope of its power', that is to say, a jurisdictional error. It does not refer to an error committed by the District Court 'within the scope of its power' which would be a non-jurisdictional error.

71.	To further explain the distinction between jurisdictional error and non-jurisdictional error, I refer to the decision of the High Court of Australia in Re Refugee Review Tribunal; Ex parte Aala (2000) HCA 57, (2000) 204 CLR 82 at p. 141 where it is said:

 "There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly). The former kind of error concerns departure from limits upon the exercise of power. The latter does not". 

72.	On the authority of Re Racal Communications Ltd [1981] AC 374 per Lord Diplock, R v Lord President of the Privy Council, ex parte Page [1993] AC 683 per Lord Griffiths and Lord Browne-Wilkinson, and Bulk Gas Users Group v Attorney-General [1983] NZLR 29, I have come to the conclusion that the privative clause in s.71 of the Land and Titles Act 1981 does exclude the jurisdiction of the Supreme Court to review a decision of the Land and Titles Court which is an 'inferior' Court on common law grounds. However, the privative clause will be ineffective if a common law ground forms part of a breach of a fundamental right provision in Part II of the Constitution: Aloimaina Ulisese v land and Titles Court (1998) (unreported judgment of Young J delivered on 4 November 1998); Sefo v Land and Titles Court [2008] WSSC 32; Corporation of the Presiding Bishop of Latter Day Saints v Land and Titles Court (2000) (unreported judgment delivered on 22 November 2000).

73.	Even if I were to accept as correct the position stated in Ramsay v Wellington District Court [2005] NZCA 196 para [29], as already referred to, it would not affect the applicability of the privative clause in s.71 to the decision of the LTC in this case. 

Conclusion

74.	 The motion for judicial review by the applicants is dismissed.

75.	Counsel to file submissions as to costs as already ordered if the parties cannot reach agreement.

CHIEF JUSTICE