IN THE SUPREME COURT OF SAMOA
Moala v Land and Titles Court [2016] WSSC 70

Case name: 	Moala v Land and Titles Court	
		
Citation: 	[2016] WSSC 70	
		
Decision date: 	05 May 2016	
		
Parties: 	PAPALII PANOA TAVITA MOALA, FEEPO LEATIOGIE SIFO, SEVAO AKAIMO, all of Faleula near Apia, Samoa. (Applicant) AND LANDS AND TITLES COURT, constituted Pursuant to Article 103 of the Constitution of the Independent State of Samoa and the Land and Titles Court Act 1981. (First Respondent). AND VALELEI MOLILAAUIFOGAA MAUGAALII MEAFOU, MASELINA TEVAGA NAUER, SILA FALESEFULU, TELEA TUNA MAIAVA, SOLAMALEMALO FOU, SOLAMALEMALO UPUTASI, FALEALILI ARONA, MILANETA LOAU, TUUMAIALU PETELO, IOSEFA IESE, TAUSILINUULELEI LEFIU, EMMA FONOTI, FASI MAIAVA, TUUMAIALU NILI, SOLAMALEMALO UFI, LOAU KENETI SIO, MOTUNUU TEOFILO, MOTUNUU TAATEO, LEASO TUPAI, LEAO SAKAI, LEAO LIVA, LORETA TUALA HENRY SILVA, SEIULI LILI PAPALII all of Faleula near Apia, Samoa. (Second Respondents)	
		
Hearing date(s): 	25 April 2016	
		
File number(s): 	CP 13/16	
		
Jurisdiction: 	CIVIL	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Nelson	
		
On appeal from:		
		
Order:	The Application has no prospect of success, it is accordingly struck out.
A Statement of Claim was also filed by the Applicants.  According to Applicants counsel this was required by the Court Registry staff.  It is not clear why such was required this being a Constitutional Review application.  For the reasons outlined above, the Statement of Claim discloses no cause of action.  Although not sought by the Respondents, in the interest of finality, this too will be struck out.
The interim injunction issued in this matter is hereby rescinded.
If the parties cannot agree upon costs, this may be referred back to the court for determination.	
		
Representation: 	L R Schuster for Applicants
S Ainuu and E Soloi for First Respondent
M V Peteru for Second Respondents 1-14
T Leavai for Second Respondents 15-19	
		
Catchwords: 	-	
		
Words and phrases:	Judicial Review – res judicata – issue estoppels – fundamental rights	
		
Legislation cited:		
		
Cases cited:	Penaia v Land and Titles Court [2012] WSCA 6
Malifa v President of Land and Titles Court [2014] WSCA 11.	
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:
		
PAPALII PANOA TAVITA MOALA, FEEPO LEATIOGIE SIFO, SEVAO AKAIMO, all of Faleula near Apia, Samoa.

Applicants

AND:

LANDS AND TITLES COURT, constituted Pursuant to Article 103 of the Constitution of the Independent State of Samoa and the Land and Titles Court Act 1981.

First Respondent

AND:

VALELEI MOLILAAUIFOGAA MAUGAALII MEAFOU, MASELINA TEVAGA NAUER, SILA FALESEFULU, TELEA TUNA MAIAVA, SOLAMALEMALO FOU, SOLAMALEMALO UPUTASI, FALEALILI ARONA, MILANETA LOAU, TUUMAIALU PETELO, IOSEFA IESE, TAUSILINUULELEI LEFIU, EMMA FONOTI, FASI MAIAVA, TUUMAIALU NILI, SOLAMALEMALO UFI, LOAU KENETI SIO, MOTUNUU TEOFILO, MOTUNUU TAATEO, LEASO TUPAI, LEAO SAKAI, LEAO LIVA, LORETA TUALA HENRY SILVA, SEIULI LILI PAPALII all of Faleula near Apia, Samoa.

Second Respondents

Counsels:	
L R Schuster for Applicants
S Ainuu and E Soloi for First Respondent 
M V Peteru for Second Respondents 1-14
T Leavai for Second Respondents 15-19
Hearing:	25 April 2016

Judgment:	05 May 2016

JUDGMENT OF NELSON J
[1]	On 08 May 2015 the Land and Titles Court of Appeal delivered its decision in LC 1925 P1-P8 overturning the first instance judgment of the Court dated 19 December 2012.  The decision was in writing and paragraphs 28 to 32 outlined the reasons for the decision in particular at paragraph 32 where the Court of Appeal held:
“32 (i)	Ua talia Talosaga Apili a Itu Talosaga 1, 2, 3 ma le 4;
(ii)	Ua soloia ma fa’aleaogaina le Fa’aiuga a le Faamasinoga o Uluai Suesuega, LC1925 P1-P8, Aso 19 Tesema 2012;  
(iii) 	Ua faamaonia o le fanua o Lotoa i le pitonuu o Fogaa i Faleula, ua maea ona faamaonia e pulea e le suafa Telea, i le Faaiuga LC 1925 Aso 14 Fepuari 1961;
(iv)	Ua faamaonia tuaoi o le fanua o Lotoa, e pei ona faalia i le Mafuaaga 28.4 o lenei faaiuga:
Sasae – ma Nuuialii i le auala
Sisifo – ma le Ekalesia Metotisi
Matu – ma le Ekalesia Metotisi
Saute – ma le Alatele o le Malo
(v)	Ua poloaina le faaauau ona fausia ma faamae’a le maota-talimalo o Telea Tuna Maiava ma lona aiga;”
	
At paragraph 28.2(v) the Court specifically dealt with the position and arguments of the applicants in the present proceedings.
[2]	The Applicants by their Second Amended Notice of Motion for Judicial Review seek a judicial review of the Land and Titles Court of Appeal decision on the basis:
(i)	that their Constitutional right under article (9)(1) “to a fair hearing by an independent and impartial tribunal” was breached by the presiding President Roma, DCJs failure to recuse himself because of his relationship in previous employment at the Samoa National Provident Fund to the lead applicant Papalii Panoa Tavita Moala.  It is suggested this may have led to personal or other differences between Judge Roma and that particular applicant which would or could affect his impartiality.  It transpired from the evidence His Honour had over a decade ago worked as in-house legal counsel for National Provident Fund under Papalii as General Manager.  But contrary to the assertion by Papalii, it was for a period of less than 2 years.
(ii)   	the Applicants also sought Romas disqualification on the ground that he was a close personal acquaintance of Loau Keneti Sio the leader of Petitioning Party number 3.
(iii)   these matters were raised on trial day with the Honourable Judge but in an oral ruling, he rejected the application and ordered the matter proceed.  A full written ruling on the issue was delivered on 08 May 2015 together with the courts final decision.
[3] 	 Judicial review was also sought on the ground that the Applicants Constitutional right to a fair trial under article 9(1) was infringed because the Court of Appeal breached principles of issue estoppel and res judicata, because it took into account irrelevant matters being facts that should have been ruled inadmissible as new evidence and out of time, and because it unfairly paid particular regard and attention to the evidence of the Second Respondents and gave little or dismissive weight to the evidence of the Applicants.  It is alleged the court also drew unreasonable and illogical inferences from the evidence and disregarded that of the Applicants as opinionated.  It also erroneously distinguished disregarded and failed to follow previous decisions of the Land and Titles Court in LC 3045, LC 5318 and LC 6011.  Was alleged also that the appellate bench had misinterpreted the previous ruling of the court in LC 1925 P1-P8 of 14 February 1961.  Further that the courts final decision was contrary to the weight of evidence and inconsistent with LC 3045, LC 5318 and LC 6011.  The court also erred in rehearing the same issue advanced by the same parties to these proceedings.  Further arguments were submitted concerning the merits of the contentions advanced at the hearing of the appeal by the various parties.
Relevant Law
[4]	The jurisdiction of the Supreme Court to review decisions of the Land and Titles Court, which by definition includes the court duly constituted as a Land and Titles Court of Appeal pursuant to section 77 of the Land and Titles Act 1981, has been settled by many previous decisions of this court and the Court of Appeal of Samoa.  Most recently in Penaia v Land and Titles Court [2012] WSCA 6 and Malifa v President of Land and Titles Court [2014] WSCA 11.

[5]	Decisions of the Land and Titles Court which is a court of special jurisdiction can only be questioned if an applicants fundamental rights under Part II of the Constitution have been infringed.  As noted in Malifa, decisions of the Land and Titles Court are ‘ring-fenced’ by sections 70 and 71 of the Land and Titles Act 1981.  Section 70 provides that “every final decision of the Court is deemed to be a judgment in rem and binds all Samoans who are affected by it whether parties to the proceedings or not.”  Section 71 provides “no decision or order of the Court shall be reviewed or questioned in any other court by way of appeal, prerogative writ or otherwise howsoever.”  
[6]	But Parliament has preserved as an exception to that a “relatively narrow but important window of reviewability” (Malifa at paragraph 16), viz where a persons fundamental rights, something guaranteed to every citizen by the Constitution, is infringed.  Only then can this court intervene on the bringing of an appropriate application under article 4 of the Constitution.   
[7]	The applicants argue their application is one such appropriate application.  They seek review on the basis of actual or perceived bias on the part of the Appeal  Bench and on the basis of unfairness as particularised in their Amended Motion.  I will deal with each ground in turn.
Bias
[8]	The Applicants firstly argue bias on the basis of a possible adverse relationship between the leader of the Respondent Party number 3 Papalii Panoa and the President of the Appellate Bench.  There are a number of factors to note.  Firstly no particulars have been provided by the Applicants in support of their argument.  There are no details as to clashes between the two men, either on a personal or professional basis; no instances of unfavourable treatment or otherwise on the part of either to the other; no particulars of any ill-feeling possibly harboured by either party; nothing at all is provided to substantiate the argument.  It seems a mere wisp of suspicion, nothing more.  
[9]	Furthermore this relationship had a relatively short life-span and existed well over 10 years ago.  And as noted by the Judge in his ruling he was not part of National Provident Fund Management and the relationship such as existed was not in any form belligerent hostile or capricious.  In my view the wisp be imaginary.  There is no substance in the argument.
 [10]	The Applicants also cite the relationship between the Judge and the leader of Petitioning Party number 3.  In his ruling the Judge conceded Loau was a former client of his law practice and that they became friends due to a shared love of sport.  But maintained this did not infringe the Land and Titles Court rules as to conflict of interest therefore requiring him to stand down.  Or detracted him from undertaking his sworn duty as a judicial officer to dispense justice without fear or favour.
[11]	The learned Judge added a similar objection was lodged against him by the leader of Petitioning Party number 4 in relation to other proceedings arising out of the same village.  This too was disallowed on the same grounds and the objection was not pursued. 
[12]	To that I would add the fact that the Judge was one of a panel of three.  The other two members were the very experienced and probably most senior of all the Land and Titles Court judges Deputy President Fonoivasa Lolesio Ah Ching supported by the newer but also experienced Judge Letufuga Tauiliili. Judge Roma rightfully disallowed this ground of objection.  
[13]	The point was also raised by counsel for some of the Second Respondents Ms Peteru that the Applicants waived their right if any to object by virtue of the words used by Applicant Papalii Panoa when the oral ruling to the objection was delivered on 28 April 2015.  Papalii said in response to the ruling:
“Papalii T Moala – Faafetai lava lau afioga o lea ua faafofoga le faamasinoga, e le mafai ona ou tuuina se mea i lalo, ona o tulaga lava faa faamasino e tatau ona fai, ae o le a faaauau le tatou galuega, faafetai tele lava manuia le tatou aso.”
[14]	There is some force in her argument.  Especially considering the issue of bias was not pursued by the Applicants until well after the decision of the Appellate Court was delivered on 08 May 2015.  It was not until almost one year later the issue was raised again.  This calls into question the bona-fides of this ground of the application.  For it cannot be that a decision is biased if you lose, but unbiased if you win.
[15]	The application insofar as it relies on actual or perceived bias on the part of the presiding President fails.  I turn now to the second ground advanced by the Applicants. 
Unfairness
[16]	A close perusal of the Applicants arguments reveals they are directed towards the terms of the decision of the Appellate Court and the evidence that was before the court.  Issues of res judicata, relevancy of material, admissibility of facts, evidentiary weight, inferences that can properly be drawn from facts, etc.  are matters that go towards the merits of a case. An examination of such issues requires the reopening of the case and scruitinising the entirety of the evidence and the arguments of the respective parties.  It would necessitate a judicial review of the whole of the case.  In effect, this would operate as an appeal from the findings of the Land and Titles Court.  

[17]	This is the very area and type of examination prohibited by Parliament by sections 70 and 71 of the Land and Titles Act 1981.  Furthermore, as noted by the Court of Appeal in Penaia:
“Even without ss 34(2), 70 and 71 there would be powerful reasons for the courts of general jurisdiction to be reluctant to intervene in disputes arising from decisions of the Land and Titles Court.  The first principle of justice is that a court be competent to decide the case.  The raison d’ȇtre of the Land and Titles Court is to provide that competence, bringing to disputes concerning Samoan custom and usage the expertise of Judges versed in such mattes so they can evaluate what answer is most in keeping with the justice of the case according to Samoan values.  Such expertise can be gained only from a life-times exposure to Samoan culture, which in the courts of general jurisdiction may be wholly absent.”
[18]	The Land and Titles Court is a specialist court with an exclusive jurisdiction – see section 34 of the Act.  That is the forum determined by Parliament wherein to debate and deal with matters involving and affecting customary land and titles. For this court to delve into the matters raised by the Applicants would be in the words of Penaia to take the courts of general jurisdiction into the very examination Parliament has expressly prohibited.
“The only forum in which such questions may be debated is the Land and Titles Court itself, whether at first instance or on appeal.”
[19]	 Even if this court disagrees with a decision reached by the Land and Titles Court at first instance or on appeal, absent a Constitutional breach, this court is in no position to judicially review such a decision.  Again referring to Penaia:
“The consequence of such ouster provisions as ss34, 70 and 71 is that the Land and Titles Court may reach decisions with which the courts of general jurisdiction may disagree.  But that is the price to be paid for the benefits of the regime.” 
[20]	In Penaia itself, as is the case here, the complaint was the decision in question was inconsistent with previous decisions of the Land and Titles Court.  The Supreme Court declined to intervene with Vaai, J at first instance making the point that: 
“Judges do not blindly follow or distinguish earlier authorities and judgments.  They consider and review earlier authorities to determine whether they should be followed or not.” 
There is no rule of law or practice that obliges the Land and Titles Court to follow its earlier decisions if there be good reason to depart therefrom.

[21]	The Motion cannot succeed on this ground either.
Orders
[22]	I remind myself the Strike Out jurisdiction is to be exercised sparingly and only in plain and obvious cases.  This is one such case.  The Application has no prospect of success, it is accordingly struck out.
[23]	A Statement of Claim was also filed by the Applicants.  According to Applicants counsel this was required by the Court Registry staff.  It is not clear why such was required this being a Constitutional Review application.  For the reasons outlined above, the Statement of Claim discloses no cause of action.  Although not sought by the Respondents, in the interest of finality, this too will be struck out.
[24]	The interim injunction issued in this matter is hereby rescinded.
 [25]	If the parties cannot agree upon costs, this may be referred back to the court for determination.

JUSTICE NELSON