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Penaia v President of Land and Titles Court [2012] WSSC 39 (22 June 2012)

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

Penaia v President of Land and Titles Court [2012] WSSC 39

Case name: Penaia v President of Land and Titles Court

Citation: [2012] WSSC 39

Decision date: 22 June 2012

Parties:

Mulitalo Penaia, matai of Saanapu - Applicant

President of Land and Titles Court – First respondent

Anapu Aialii Anapu and Others – Second respondent

Tuiafelolo Eti Laulala and Others – Third respondent

Hearing date(s): 3 May 2012

File number(s):

Jurisdiction: Civil

Place of delivery: Mulinuu

Judge(s): Chief Justice Sapolu

On appeal from:

Order:

Representation:

L T Malifa for applicant

M T Lui and E Schmidt for first respondent

Second respondents – no appearance

Third respondents – no appearance

Catchwords:

Words and phrases:

judgment in rem

ultra vires

Legislation cited:

Judicial Review of Administrative Action (1995) 5th ed by de Smith

Cases cited:

Mapuilesua v Land and Titles Court [2011] WSSC131

Secretary of State for the Home Department v JJ et al [2007] UKHL 45

European Court of Human Rights in Engel v The Netherlands (No 1) [1976] ECHR 3; (1976) 1 EHRR 647

Guzzardi v Italy (1980) 3 EHRR 33

Council for Civil Service Unions v Minister for the Civil Service [1985] AC 374

Mulitalo Penaia II and Others v Land and Titles Court and Others (2012) (C.A 07/11)

Salaiulufa Siologa Mapuilesua v Land and Titles Court (2012) (C.A14/11)

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINU’U

Misc

BETWEEN:

MULITALO PENAIA matai of Saanapu

Applicant

PRESIDENT OF THE LAND AND TITLES COURT

First Respondent

ANAPU AIALII ANAPU AND OTHERS matais of Saanapu

Second Respondents

TUIAFELOLO ETI LAULALA AND OTHERS matais of Saanapu

Third Respondents

Counsel:

L T Malifa for applicant

M T Lui and E Schmidt for first respondent

Second respondent – no appearance

Third respondent – no appearance

Hearing: 3 May 2012

Judgment: 3 May 2012

Reasons for Judgment: 22 June 2012

REASONS FOR JUDGMENT

Introduction

1. Two applicants filed separate motions for judicial review of the decision of the President of the Land and Titles Court (the first respondent) in LC10631 P1 & P2 dated 19 June 2009 (the 2009 decision). In that decision, the first respondent refused to the applicants leave to appeal the decision of the Court of First Instance in LC10631 P1 & P2 dated 25 June 2004 (the 2004 decision).
2. Subsequently, a motion was filed on 1 November 2010 on behalf of the first respondent to strike out the motion for judicial review by the applicant Mulitalo Penaia, a matai of Sa’anapu. For reasons known to counsel, that strike out motion did not come up for hearing until 3 May 2012. The other applicant for judicial review Leaana Afereti, another matai of Saanapu, appeared by counsel at the hearing of the strike out motion but took no part in the proceedings. I therefore say no more about that applicant.
3. After the hearing of the strike out motion on 3 May 2012, I gave judgment for the first respondent and struck out the motion for review by the applicant Mulitalo Penaia (the applicant). I indicated to counsel that the reasons for my judgment will be reduced in writing and delivered to counsel in due course. These are those reasons.
4. Before going further, I should warn counsel for the applicant about the use of the words “and Others” in the names of the parties in Land and Titles Court related matters. Experience has shown that the use of such words in the name of a party can create problems in the future because of people coming before the Court in matai title disputes saying that they or their forefathers are included in the words “and Others” when they have no blood or family connections to a title in dispute. The names of all the members of a party should be spelt out in full.

The applicant’s motion for judicial review

5. The applicant Mulitalo Penaia in his motion for judicial review seeks two remedies: (a) an order to set aside the first respondent’s 2009 decision, and (b) a stay of the 2009 decision pending the outcome of the review proceedings.
6. The grounds of the motion for review are: (a) the 2009 decision breached the applicant’s right to personal liberty provided in Article 6 (1) of the Constitution, (b) the 2009 decision breached the applicant’s right to a fair trial provided in Article 9 of the Constitution, and (c) the 2009 decision was illegal and irrational at common law.

(a) Grounds in support of the alleged breach of Article 6(1)

7. The grounds given in the applicant’s motion for review in support of each ground for the alleged invalidity of the 2009 decision are difficult to follow or understand. They are lacking in clarity. With the assistance of the submissions by senior counsel for the first respondent, I turn now to the grounds stated in the motion in support of the alleged breach of Article 6(1). These grounds may be stated as follows:

(a) there is a ‘gap’ between LC1196 in 1952 which was an incomplete hearing and LC1197 which did not exist but the first respondent failed to address that ‘gap’;

(b) the composition of the Court in LC 1196 was different from the composition of the Courts in LC1197;

(c) the first respondent in the 2009 decision should have rejected LC 1197 as illegal instead of relying on it;

(d) the matai title Mulitalo held by the applicant has become subservient to the pule faavae (authority) of Anapu Aialii the second respondent which has breached the applicant’s liberty to enjoy his own environment and faasinomaga;

(e) the Lagi, Tuiga, Taupou and Manaia of Saanapu village are now all controlled by the pule faavae of the second respondent but the first respondent had not sought and obtained any collective evidence from the Safata district to support this finding;

(f) the applicant’s authority over his own matai title Mulitalo and the customary lands pertaining to his matai title are now subdued to the new pule faavae of the title Anapu (the second respondent) over the village of Saanapu; this has affected the applicant’s liberty and freedom to enjoy his own customary lands; and

(g) the first respondent in the 2009 decision placed reliance on the Tusi Faalupega which is an unproven record of evidence.

8. I am in no doubt that none of the above grounds, even if it is assumed that they are all factually correct, constitutes a breach of Article 6 (1) of the Constitution. Counsel for the applicant did not demonstrate how any of the above grounds constitutes a breach of Article 6 (1). If that was done, it would have assisted him to see that there was no breach of Article 6 (1).
9. Article 6(1) provides:

“No person shall be deprived of his personal liberty except in

“accordance with law”

10. It was held in Mapuilesua v Land and Titles Court [2011] WSSC131 following the House of Lords decision in Secretary of State for the Home Department v JJ et al [2007] UKHL 45 which applied the judgments of the European Court of Human Rights in Engel v The Netherlands (No 1) [1976] ECHR 3; (1976) 1 EHRR 647 and Guzzardi v Italy (1980) 3 EHRR 33 that the term ‘liberty’ in Article 6 (1) means ‘physical liberty’. The expression ‘personal liberty’ in Article 6(1) therefore means the ‘physical liberty of the person’. It does not mean ‘human liberty’ as submitted by counsel for the applicant. The expression ‘human liberty’ is all embracing and would include all the human freedoms and liberties provided in Part II of the Constitution because they all relate to humans. Article 6(1) deals with a specific kind of human liberty which is the physical liberty of an individual’s person.
11. There is nothing in the grounds of the applicant’s motion for review to show that the applicant was deprived of his physical liberty. He was not arrested, detained, or in any other way deprived of his physical liberty. Counsel for the applicant also did not point to any part or parts of Article 6(1) which had been breached or explain how they were breached. It is merely asserted that the first respondent’s 2009 decision breached the applicant’s right to personal liberty under Article 6(1) and then the supporting grounds are set out. The Constitution should not simply be tossed in and hope that something will bite.
12. Furthermore, I accept the submissions by senior counsel for the first respondent that there is no ‘gap’ between LC1196 and LC1197 as claimed by the applicant. So there is nothing to be filled in. But even if it is assumed that there is a ‘gap’, the first respondent in the leave to appeal proceedings in 2009 had no jurisdiction to change the decision in LC1197 of 8 April 1952. That decision was also about fifty seven (57) years old by the time of the leave to appeal proceedings in 2009. It was then far too late to challenge that decision.

(b) Grounds in support of the alleged breach of Article 9

13. The grounds stated in the applicant’s motion for review in support of the alleged breach of Article 9 of the Constitution may be stated as follows:

(a) the decision of the Land and Titles Court in LC1197 dated 8 April 1952 is not a judgment in rem or a final and binding decision;

(b) there was no LC1197 dated 8 April 1952 but a hearing entitled LC1196 of the same date which was incomplete because the hearing was adjourned without the party of the applicant’s family being given the opportunity to exercise their right of rebuttal (tala tete’e); it follows that there is a ‘gap’ in LC1196 and LC1197 that breached Article 9;

(c ) Article 9 requires the first respondent in the 2009 decision to fill in the said ‘gap’ but the first respondent failed to do so and as a result breached Article 9;........

(d) the said ‘gap’ establishes that no consideration or weight was given by the first respondent to the evidence or Tala Tusia (written statement) of the party of the applicant’s family in LC1196; it follows that the first respondent in both the 2004 and 2009 decisions failed to address this aspect and again acted in breach of Article 9; and .........

(e) the composition of the Court in LC1197 was not the same as the composition of the Court in LC1196 and this confirms that their were two separate decisions which were given in breach of Article 9.

14. Counsel for the applicant did not point to any part or parts of Article 9 which had been breached or explain how they were breached. It is merely asserted in the motion for review that the first respondent’s 2009 decision breached the applicant’s right to a fair trial under Article 9.
15. Be that as it may, I am again in no doubt that no breach of Article 9 has been shown. Ground 13(a) which claims that the decision of the Land and Titles Court in LC1197 dated 8 April 1952 is not a judgment in rem or a final and binding decision is incorrect. Final decisions of the Land and Titles Court are judgments in rem.
16. Section 58 of the Samoa Land and Titles Protection Ordinance 1934, which was the applicable Ordinance in 1952, provided that every final decision of the Court shall be deemed to be a judgment in rem and shall bind all Samoans who are interested therein whether parties to the proceedings or not. The Land and Titles Court Act 1981, which is the successor to the Samoa Land and Titles Protection Ordinance 1934, also provides in s.70 that final decisions of the Land and Titles Court shall be deemed to be judgments in rem. Ground 13(a) is without substance.
17. Ground 13(b) in support of the alleged breach of Article 9 asserts that there was no LC 1197 dated 8 April 1952 but an incomplete hearing entitled LC1196 of the same date. The applicant claims that hearing was incomplete because it was adjourned without his family’s party being given the opportunity to present a statement in rebuttal (tala tete’e). As a result, there is a ‘gap’ in LC 1197 and LC 1196 that breached Article 9.
18. I have already accepted in para 12 of these reasons for judgment the submissions by senior counsel for the first respondent that there is no ‘gap’ in LC1197 and LC1196. I also accept the submissions by senior counsel for the first respondent that there was in fact a hearing before the Land and Titles Court in 1952 concerning the authority over the Lagi, Tuiga, Taupou and Manaia in the village of Saanapu. In fact counsel for the applicant conceded that there was such a hearing but he said it was incomplete. This assertion on behalf of the applicant that the hearing in 1952 was incomplete is based on hearsay evidence in the applicant’s affidavit which is inadmissible as correctly pointed out by senior counsel for the first respondent. I also find such hearsay evidence incredible after listening to the applicant who addressed the Court on this part of the proceedings and after hearing submissions from his counsel.
19. The fact that the Land and Titles Court delivered a decision in the 1952 proceedings also suggests that there was a complete hearing otherwise no decision would have been delivered. Ground 13(b) is also without substance.
20. Ground 13(c) states that Article 9 requires the first respondent in the 2009 decision to fill in the ‘gap’ in the LC1197 and LC1196. By not doing so, the first respondent breached Article 9. As I have accepted that there was no ‘gap’ as claimed for the applicant, there was therefore nothing to fill in. The first respondent also had no jurisdiction to change the decision in LC1197 dated 8 April 1952. He was simply dealing with the question of whether leave to appeal the 2004 decision be granted to the applicant.
21. 21. There is also no substance in ground 13(c).
22. Before proceeding further, I have to say that I am concerned about counsel for the applicant questioning the validity of the 1952 decision in these proceedings. That decision is now sixty (60) years old. Section 59 of the Samoa Land and Titles Protection Ordinance 1934, which is the relevant Ordinance, provided that any party or other Samoan affected by a final decision of the Court may apply for a re-hearing. Section 60 then provided that every application for a re-hearing shall be made within two months after the publication of the Court’s decision. That two (2) months period had long expired in this case. The present motion for review was filed in 2010 about fifty eight (58) years after the decision in 1952. It seeks to review the 2009 decision of the first respondent; it is not a motion to review the 1952 decision. There is no such motion before the Court. However, the way the argument for the applicant was conducted involves questioning not only the validity of the 2009 decision but also the validity of the 1952 decision. This is not right.
23. As I have accepted the submissions for the first respondent that there is no ‘gap’ in LC1197 and LC1196, it is not necessary to deal with ground 13(d). It is also without substance.
24. In ground 13(e) of the motion for review, it is in effect alleged that there were two hearings, one in LC1197 and one in LC1196; there were therefore two separate decisions by the Land and Titles Court in 1952. This is also incorrect. The decision in 1952 is the decision in LC1197. The relevant Court file is marked LC1197. It is the transcript of the proceedings in LC1197 that is marked LC1196. But there was only one hearing, not two separate hearings. Therefore, there was only one decision of the Court which is LC1197 dated 8 April 1952, not two separate decisions. In fact counsel for the applicant did not produce any other decision of the Court in 1952 except the decision LC1197 dated 8 April 1952. This suggests there was only one hearing even though the decision in that hearing is marked LC1197 and the transcript of the proceedings is marked LC1196.
25. Because there was only one hearing, it is also incorrect for the applicant to say that the composition of the Court in LC1197 is not the same as the composition of the Court in LC1196. This is incorrect because there was only one Court and that was the Court in LC1197. There was no Court in LC1196. The Judges and Assessors whose names appear in the LC1197 decision were the same as the Judges and Assessors whose names appear in the LC1196 transcript of proceedings. The name ‘Kalolo’ which appears in the transcript marked LC1196 is the Samoan name of ‘Bartley’ which appears in the decision marked LC1197. ‘Kalolo’ and ‘Bartley’ were the same person. Counsel for the applicant effectively conceded this point during the hearing of these proceedings.
26. It follows that none of the grounds set out in para 13 of these reasons for judgment constitutes a beach of Article 9.
27. Ground 13(e) is also without substance.

(c) Grounds in support of the allegation that the first respondent’s decision is illegal and irrational

28. It is alleged in the applicant’s motion for review that the first respondent’s 2009 decision is illegal and/or irrational at common law and therefore void. The alternative ground of invalidity which is taking into account irrelevant considerations or the failure to take into account relevant considerations comes under illegality and should not have been pleaded as an alternative to the ground of illegality.
29. As with the grounds in support of the alleged breaches of Article 6 and 9 of the Constitution, the grounds in support of the alleged illegality or irrationality do not show how the 2009 decision is illegal or irrational. These grounds are also lacking in clarity.
30. The grounds in support of this part of the motion for review may be set out as follows:

(a) In the LC1197 decision, the Land and Titles Court confirmed that the pule (authority) over the “ Lagi, Tuiga, Taupou,and Manaia” in the village of Sanapu is vested in the title Anapu. The applicant says this is not relevant to the issue of the “Pule Faavae ile Nuu o Saanapu” (the foundation authority over the village of Saanapu) which was one of the issues that the Land and Titles Court had to adjudicate upon in LC10631/P1-P2 in 2004. The Court in its decision of LC10631/P1-P2 dated 25 June 2004 held that “Ole Pule Faavae ole Nu’u o Saanapu ua iai lea ile suafa Anapu lea e suafa ai Anapu Aialii”. ( The foundation authority over the village of Saanapu is vested in the title Anapu held by Anapu Aialii). The applicant also says that the first respondent should have called evidence from all the villages of Safata to confirm this part of his decision.

Discussion

31. It would seem that ground (a) above is based partly on illegality, that is to say, the first respondent took into account an irrelevant consideration and partly on the alleged failure of the first respondent to call evidence from all the villages of the Safata district. I must say at once that it is not the function of a Court to call or look for evidence. It is for the parties to bring before the Court the evidence they wish to rely upon. The Court then adjudicates on that evidence. This part of ground (a) is misconceived.
32. In respect of the relevance or otherwise of the 1952 decision to the issue of the “Pule Faavae ile Nuu o Saanapu” that was before the Court in 2004, the Court must have considered that it was relevant and took it into consideration. But it is only one of the considerations the Court took into account in arriving at its decision that the Pule Faavae of the village of Saanapu is vested in the title Anapu. There were other considerations the Court took into account: see pp1-6 of the Court’s decision.
33. Anyhow, for a matai to hold the authority over the Lagi, Tuiga, Taupou and Manaia of a village is a sign or symbol of high status and authority in a village. Only a paramount matai in a village has a Lagi, Tuiga, Taupou and Manaia. Not just any matai has such honours or privileges. Thus, as the Court in 1952 had decided that the authority over the Lagi, Tuiga, Taupou and Manaia in the village of Saanapu is vested in the title Anapu, the Court in 2004 must have considered that that was a relevant consideration to the determination of the issue of whether the title Anapu holds the Pule Faavae over the village of Saanapu. I disagree with counsel for the applicant that it was not relevant. It follows that the Court in 2004 did not take into account an irrelevant consideration or acted illegally. The fact that the title Anapu holds the authority over the Lagi, Tuiga, Taupou and Manaia in the village of Saanapu pursuant to the 1952 decision was a relevant and weighty consideration. That must be the real reason why the applicant is now trying to nullify the 1952 decision. It is a weighty consideration in support of the Pule Faavae of the title Anapu. But as already pointed out, the 1952 decision was only one of the considerations in support of the Court’s decision in 2004 to vest the Pule Faavae over the village of Saanapu in the title Anapu.
34. Ground (a) must therefore fail.
35. Ground (b) of this part of the motion may be stated as follows:

(b) It follows from ground (a) that the Court in 2004 erred in holding in para 5 (1) of its decision that “... ua pule le suafa Anapu i tulaga uma ile nuu o Saanapu” (the title Anapu holds the authority over these matters in the village of Saanapu) and in para 5(2) that “... ma suesueina ai fo’i le tele o mataupu ua toe tagofia i lenei Faamasinoga” (and has examined most of the matters now re-examined by this Court). Ground (b) then goes on to say that the first respondent did not give appropriate weight and consideration to the evidence of all of the respondent parties (including the present applicant) in the 2004 proceedings.

Discussion

36. Ground (b) is also misconceived. Paragraphs 5 (1) and 5 (2) are part of the reasons given by the Court in 2004 for the decision that it reached. It is not part of the conclusions reached by the Court in its decision. To say or imply that paras 5 (1) and 5 (2) are part of the decision reached by the Court does not give an accurate picture. Paragraphs 5(1) and 5(2) are parts of the reasons but not parts of the conclusions reached by the Court. Furthermore, to cite only parts of paras 5(1) and 5(2) without citing the whole makes what is cited misleading. In paras 5(1) and 5(2) the Court in 2004 was referring to what was decided by the Court in 1952 regarding the authority over the Lagi, Tuiga, Taupou and Manaia in the village of Saanapu. The Court was not deciding anything in paras 5 (1) and 5(2). For the applicant to say that the Court in 2004 “was wrong in its holding” in paras 5(1) and 5(2) is incorrect because the Court did not make a finding or decide anything in paras 5(1) and 5(2).
37. The allegation by the applicant which follows that the first respondent did not give appropriate weight and consideration to the evidence of all the respondents (including the present applicant) in the 2004 proceedings does not link up with what precedes that allegation. There was also no evidence given for the applicant to show that the first respondent did not give appropriate weight or consideration to the evidence of the respondents in the 2004 proceedings. In fact counsel for the applicant did not address these grounds in his submissions which were delivered orally.
38. In any event, in his decision in LC10631 P1, P2, of 19 June 2009 the first respondent says he has examined the applicant’s applications for leave to appeal before deciding to reject them.
39. Ground (b) is also without substance.
40. Ground (c) may be stated as follows;

(c) The first respondent erred in not verifying or subjecting to appropriate judicial scrutiny the conclusion at para 2 of page 8 of the 2004 decision “Ole Pule Faavae ile nu’u o Saanapu ua iai lea ile suafa Anapu lea e suafa ai Anapu Aialii” (the foundation authority in the village of Saanpu is vested in the title Anapu held by Anapu Aialii) and therefore breached Article 9 of the Constitution. What immediately follows is unintelligible but towards the end it says that a sweeping “Pule Faavae” usurps even the ‘omnipresent authority of God’. I must say that such usurpation, if there is any, is not for the Courts to decide. It is not one of the recognised grounds of judicial review and the Almighty should not have been mentioned in the motion by the applicant.

Discussion

41. Ground (c) harks back to Article 9 of the Constitution even though it is supposed to relate to illegality and irrationality which are common law grounds of judicial review. I am therefore compelled to deal with the alleged breach of Article 9 even though ground (c) is also referring to illegality and irrationality.
42. This particular ground of the motion for review was not addressed in the oral submissions of counsel for the applicant. So it is not clear which part or parts of Article 9 had been breached. Article 9 is a lengthy constitutional provision and it would have been most helpful if the particular part or parts which is/are relevant had been specified. A blank assertion that Article 9 had been breached is not good enough.
43. There was also no evidence given by the applicant to show that the first respondent “erred in not verifying or subjecting to appropriate judicial scrutiny” para 2 at page 8 of the 2004 decision which vested the Pule Faavae of the village of Saanapu in the title Anapu. It must be borne in mind that in 2009 the first respondent was dealing with two applications for leave to appeal the 2004 decision. Those applications included the application by the applicant for leave to appeal. The first respondent was not hearing any appeal and therefore was not required to determine the merits of any appeal. That would be for the Appellate Division of the Land and Titles Court if leave to appeal is granted.
44. Section 79 of the Land and Titles Act 1981 provides the grounds upon which leave to appeal may be granted. The first respondent held in the 2009 decision that after examining and considering the applications for leave to appeal, he concluded that none of the applicants had satisfied any of the grounds provided in s.79. However, ground (c) asserts that the applicant should have verified or subjected to appropriate scrutiny the conclusion in para 2 page 8 of the 2004 decision. This is a misconception. What the first respondent had to consider in terms of the Act is whether any of the applicants for leave to appeal satisfies any of the grounds set out in s.79(1). He must also consider s.79 (2) which provides that notwithstanding s.79 (1), leave to appeal shall not be granted unless some substantial wrong or miscarriage of justice had occurred.
45. It is therefore an error to say that the first respondent in 2009 had to verify and scrutinise the conclusion in para 2 page 8 of the 2004 decision and that by not doing so he breached Article 9 though no particular part of Article 9 was pointed out to have been breached. As already mentioned, the first respondent was not hearing any appeal. He was hearing applications for leave to appeal. He was therefore required by the Act to consider the provisions of s.79. But there is no mention of s.79 in ground (c) of the motion. Counsel for the applicant also did not address ground (c) in his oral submissions.
46. Ground (c) must therefore be struck out.
47. Ground (d) of this part of the motion for review may be stated as follows:

(d) The Pule Faavae of the village Saanapu vested by the 2004 decision in the title Anapu has adversely affected the pule of the lands “Alofi” and “Tuugamau” vested in the applicant’s matai title Mulitalo in previous decisions of the Land and Titles Court. It is then alleged that the 2009 decision by the first respondent refusing to the applicant leave to appeal is ultra vires or breached Article 9 of the Constitution in its generality.

Discussion

48. Ground (d) above was also not addressed in the oral submissions of counsel for the applicant. So it is again not clear which particular part or parts of Article 9 had been breached. Be that as it may, I will deal with this ground by first explaining what is ultra vires and then consider whether the alleged facts fit within the concept of ultra vires. I will then consider the alleged breach of Article 9.
49. In Judicial Review of Administrative Action (1995) 5th ed by de Smtih, Woolf and Jowell at 5-012, p229, the learned authors state :

“In essence, the doctrine of ultra vires permits the Courts to strike down decisions made “by public bodies exercising public functions which they have no power to make. Acting “ultra vires and acting without jurisdiction have essentially the same meaning, “although in general the term vires has been employed when considering “administrative decisions and subordinate legislative orders, and ‘jurisdiction’ when “considering judicial decisions, or those having a judicial flavour.”

50. In Judicial Review of Administrative Action (supra) at 5-043, p250, the learned authors state :

“(1) The doctrine of ultra vires, to the extent that it implies that all administrative power “is derived from a specific statutory source, can no longer be considered the sole “justification for review of the powers of bodies exercising public functions. Certain of “these functions are carried out under common law powers or under powers like that of “self-regulatory bodies with ‘no visible legal support’. These powers ‘do not lend “themselves to the language of ‘ultra vires’...Insistence upon ultra vires as the basis for “judicial review inhibits review when the powers of the body are not derived from a “defined statutory source...

“(2) Accordingly, the foundation for judicial review should no longer be regarded as

“ultra vires...

“(3) Therefore, all powers can be appropriately reviewed today under what might be “described as the principles of lawful or legitimate administration. These principles “enunciated as ‘grounds’ of judicial review by Lord Diplock in the GCHQ case ... as “‘legality’, ‘procedural propriety’ and ‘rationality’. These requirements form a firm “foundation upon which to review the public functions of modern administration and not “depend upon the limited notion of jurisdiction or vires in its narrow sense”.

51. It is clear form the above statements of principles in Judicial Review of Administrative Action (1995) 5th ed by de Smith, Woolf and Jowell at 5-0143 p250 that the doctrine of ultra vires is no longer to be regarded as the sole ‘justification’ or ‘foundation’ for judicial review of the powers of bodies exercising public functions. The modern basis for judicial review is the principles or ‘grounds’ of ‘illegality’, ‘procedural fairness’ and ‘irrationality’ as stated by Lord Diplock in Council for Civil Service Unions v Minster for the Civil Service [1985] AC 374.
52. Ultra vires would now appropriately come under the modern ground of illegality. In Judicial Review of Administrative Action (supra) at para 6-001 p295, the learned authors explain the ground of illegality as follows:

“An administrative decision is flawed if it is illegal. A decision is illegal if :

“(1) it contravenes or exceeds the terms of the power which authorises the making of the decision; or

“(2) it pursues and objective other than that for which the power to make the decision was conferred.

“The task for the Courts in evaluating whether a decision is illegal is essentially one of “construing the content and scope of the instrument conferring the power in order to “determine whether the decision falls within its ‘four corners’. In so doing, the Courts “can enforce the rule of law, requiring administrative bodies to act within the bounds of “the powers they have been given. They also act as guardians of Parliament’s will- “seeking to ensure that the exercise of power is what Parliament intended”.

53. Thus, when it is claimed for the applicant that the 2009 decision by the first respondent is ultra vires, this must mean that the applicant is relying on the modern common law ground of illegality. This requires the applicant to show that the first respondent either contravened or exceeded the powers given to him under the leave to appeal provisions of s.79 of the Land and Titles Act 1981, or pursued an objective other than that for which the powers were given to him under s.79. The applicant has not done any of those things. It is simply alleged that the first respondent acted ultra vires in refusing to the applicant leave to appeal the 2004 decision which gave the Pule Faavae in the village of Saanapu to the title Anapu because that has allegedly affected the applicant’s authority over the lands “Alofi” and “Tuugamau”, as determined in previous Court decisions. This does not establish that the first respondent contravened or exceeded the powers given to him under s.79, or pursued an objective foreign to s.79. The first respondent has the powers under s.79 to hear and come to a decision on a motion for leave to appeal. That is exactly what he did within the perimeters of s.79. So the 2009 decision is not ultra vires or illegal. Acting ultra vires essentially means acting without authority. This part of ground (d) is therefore without merit.
54. Regarding the alleged breach of Article 9 in ground (d), it was not specified which part or parts of Article 9 had been breached or how any part or parts of Article 9 had been breached. In spite of this omission, it is undisputed that a hearing of the application for leave to appeal by the applicant was held before the first respondent. A decision was then delivered by the first respondent. There is nothing in ground (d) to show that the applicant’s right to a fair trial was breached because the first respondent refused leave to appeal. The first respondent was entitled to come to that decision. It follows that this part of ground (d) is also without merit.
55. The applicant claims that the 2004 Court by giving the Pule Faavae in the village of Saanapu to the title Anapu has adversely affected the authority of his title Mulitalo over the lands “Alofi” and “Tuugamau”. What has to be explained here is that in the 2004 proceedings, three Pule Faavae in the village of Saanapu were claimed before the Land and Titles Court for decision : see para 5 (3) page 5 of the 2004 decision. These were the Pule Faavae of the title Anapu; the Pule Faavae of the “Toatolu o Alii Leaana, Mati ma Mulitalo” (the Three chiefs Leaana, Mati and Mulitalo); and the Pule Faavae of the Alii and Faipule of Saanapu. The applicant supported the Pule Faavae of the Toatolu o Alii Leaana, Mati and Mulitalo. The matai title Mulitalo is held by applicant. The Court had to decide which of these three Pule Faavae is to be accepted. The Pule Faavae of the title Anapu over the village of Saanapu was upheld. The other two Pule Faavae were rejected.
56. The applicant now complains that the Court by vesting the Pule Faavae in the village of Saanapu in the title Anapu has adversely affected his authority over his lands. But if that is so, the applicant was himself supporting the Pule Faavae of the Toatolu o Alii Leaana, Mati and Mulitalo over the village of Saanapu. If the Court had upheld that Pule Faavae, it would have meant that by now the Pule Faavae in the village of Saanapu would have been held by the titles Leaana, Mati and Mulitalo. That could have affected the lands of the title Anapu. Because the Court gave the Pule Faavae of Saanapu to the title Anapu, the applicant claims that that is wrong because it affects his lands. However, if the Court had given the Pule Faavae of Saanapu to Leaana, Mati and Mulitalo, the applicant would not have complained because that is the Pule Faavae he supported in the 2004 proceedings.
57. The applicant further complains that the first respondent acted ultra vires and in breach of Article 9 by refusing his application for leave to appeal the 2004 decision regarding the Pule Faavae of the title Anapu. This is an abuse of process. It seems that if the 2004 decision had gone in favour of the applicant, the Pule Faavae is not ultra vires or in breach of Article 9. Because the decision went against the Pule Faavae that he supported, he now says that the Pule Faavae is ultra vires and in breach of Article 9. The applicant, however, may wish to consider petitioning the Court to explain whether the Pule Faavae of the title Anapu affects his lands “Alofi” and “Tuugamau”.
58. Ground (d) should be struck out.
59. Ground (e) of this part of the applicant’s motion was also not addressed in the oral submissions of counsel for the applicant but may be stated as follows:

(i) The first respondent acted illegally, irrationally, and in breach of Article 9 of the Constitution by not properly considering s.79 (1) (f) of the Land and Titles Act 1981 as to how and why the 2004 decision was not wrong in law and not in accordance with Samoan custom and usage as argued and submitted by the applicant; and

(ii) The first respondent acted illegally, irrationally, and in breach of Article 9 by not properly considering s.79(1) (g) of the Act as to how and why the 2004 decision was not manifestly against the weight of the evidence of the applicant and other parties adduced at the 2004 hearing.

60. It is wrong to say that the first respondent did not properly consider the application by the applicant for leave to appeal the 2004 decision. The first respondent says in the 2009 decision that he examined and considered the applications for leave to appeal and none satisfied the requirements of s.79 of the Act. Even though the 2009 decision is not extensive, that does not mean that the applicant’s application for leave to appeal was not properly considered. To simply assert that the first respondent did not properly consider the applicant’s application for leave to appeal in terms of s.79(1) (f) is a blank assertion that does not say anything as to whether that was what that actually happened.
61. There was an actual hearing of the application for leave to appeal. The applicant was present and was heard by the first respondent. A decision was then made. So there could not have been a breach of the applicant’s right to a fair trial under Article 9 in those circumstances. There is also nothing to show that the first respondent did not properly consider the applicant’s application for leave to appeal.
62. What counsel for the applicant seems to be saying is that the Pule Faavae in the village of Saanapu given in the 2004 decision is wrong in law in that it adversely affects the applicant’s authority over his lands “Alofi” and “Tuugamau”. He also says that the Pule Faavae is not in accordance with Samoan custom and usage. That is counsel’s own opinion. It is not the opinion of the 2004 Court or the first respondent who supported the Pule Faavae of the Toatolu o Alii Leaana, Mati and Mulitalo. So there is such a thing known as Pule Faavae in Samoan custom and usage.
63. The 2004 decision was also not wrong in law. The applicant and his counsel are only saying now that the Pule Faavae claimed by Anapu in the 2004 proceedings is wrong in law because the Pule Faavae of the Toatolu o Alii Leaana, Mati and Mulitalo supported by the applicant in those proceedings was rejected by the Court. But the nature of the Pule Faavae claimed by Anapu is no different from the nature of the Pule Faavae supported by the applicant. I am sure that if the Pule Faavae supported by the applicant had been upheld by the Court, the applicant would not have complained. So what the applicant is now doing suggests abuse of process.
64. The allegation that the first respondent acted illegally, irrationally, and in breach of Article 9 by not properly considering s.79 (1) (g) of the Act as to how and why the 2004 decision was not manifestly against the weight of evidence of the applicant and other parities adduced in the 2004 proceeding is also without any merit.
65. If reference is made to the 2004 decision, there were three Pule Faavae claimed. The first is the Pule Faavae of the title Anapu claimed by Anapu Aialii and Others who were cited in the decision as the claimants (Itu Talosaga). The second is the Pule Faavae of the Toatolu o Alii Leaana, Mati and Mulitalo claimed by Leaana Meafou and Others as first respondents and supported by the present applicant who was the third respondent in the 2004 proceedings. The third is the Pule Faavae of the Alii and Faipule of Saanapu claimed by Tuiafelolo Eti Laulala and Others who were the second respondents. Even though the evidence of the opposing parties was conflicting, there is ample evidence shown in the 2004 decision to support that decision which confirms the Pule Faavae of the title Anapu. The rejection or acceptance of evidence at a hearing and the determination of the weight to be given to each part of the evidence is a function that is peculiarly within the province of the ‘Court.
66. There was also no suggestion that the Court in 2004 wrongly rejected or accepted any evidence apart from the 1952 decision in LC1197. It was also not pointed out whether any evidence, apart from the 1952 decision in LC 1197, was given wrong weight. It follows that the allegation that the decision in 2004, insofar as it concerns the Pule Faavae in the village of Saanapu, is manifestly against the weight of the evidence in terms of s.79 (1) ((g) of the Act is also without any merit.
67. It is wrong for counsel for the applicant to suggest in ground (e) that the weight of the evidence to be considered by the Court in leave to appeal proceedings is the weight of the evidence before the Court in such proceedings. Section 79(1) (g) is clear that the weight of the evidence to be considered is the weight of the evidence that was before the trial Court, that is to say the Court in 2004 which heard the petitions of the parties.
68. Ground (e) of this part of the motion for review is also without any merit.
69. In ground (f) of this part of the applicant’s motion, it is alleged that there is no evidence in the 2009 decision that the first respondent adhered to the requirements of s.79 (1) (f) and s.79 (1) (g) and as a result there was no consideration or weighing up of all of the evidence. The 2009 decision, as already mentioned, is not a long or detailed decision. But that does not mean that the first respondent did not consider or weigh up all the evidence that was before the Court in 2004 or the submissions and arguments that were before Court in 2009. The relevant evidence is the evidence that was before the Court in 2004. It is on the basis of that evidence that the Court in the leave to appeal proceedings in 2009 had to determine whether the 2004 decision is wrong in law or not in accordance with Samoan custom in terms of s.79 (1) (f) or manifestly against the weight of the evidence in terms of s.79(1) (g). The only exception is where there is new and material evidence found since the hearing before the Court of First Instance in terms of s.79 (1) (a), but that is not relevant to this case.
70. As already pointed out, the first respondent does say in the 2009 decision that he has examined and considered the applications for leave to appeal and the applicants have not satisfied any of the grounds provided in s.79 of Act. So the first respondent did consider the requirements of s.79. He does say so. The practice of the Land and Titles Court is often not to give lengthy or detailed decisions in leave to appeal proceedings. But that does not mean the applications for leave to appeal and the provisions of s.79 of the Act had not been given adequate and careful consideration.
71. In any case, I have already decided that the applicant’s allegations relating to the provisions of s.79 (1) (f) and s.79 (1) (g) have no merit. This ground of the motion for review should also be struck out.

The jurisdiction of the Supreme Court to review decisions of the Land and Titles Court

72. I have not referred to the jurisdiction of the Supreme Court to review the decisions of the Land and Titles Court on the common law grounds of illegality and irrationality. But it would be helpful for counsel for the applicant if he refers to the recent decisions of the Supreme Court on this issue and the important decisions of the Court of Appeal in the recent cases of Mulitalo Penaia II and Others v Land and Titles Court and Others (2012) (C.A 07/11; judgment delivered on 31 May 2012); Salaiulufa Siologa Mapuilesua v Land and Titles Court (2012) (C.A14/11; judgment delivered on 31 May 2012.

Conclusion

73. As all the grounds in support of the applicant’s motion for review are without substance or without merit, the motion is struck out.
74. Counsel to file submissions as to costs in 7 days.
75. Finally, I wish to acknowledge the well argued, well researched, and well presented submissions by senior counsel for the first respondent which I have found helpful.
    

CHIEF JUSTICE