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Ioane-Cleverley v Land and Titles Court [2022] WSSC 10 (31 May 2022)

IN THE SUPREME COURT OF SAMOA
Ioane-Cleverley & Ors v Land and Titles Court & Ors [2022] WSSC 10 (31 May 2022)

CP 43/18

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER OF:

LC 11951/P1-P12 dated 29 MAY 2015 and LC 11951/P1-P12 dated 10 February 2017.

BETWEEN:

LUATUPU IOANE-CLEVERLEY, of Saoluafata and Wellington, New Zealand, Medical Doctor, MALAULAU POPO AIULU, of Saoluafata, matai and MAO PETER RASCH of Saoluafata, matai, LEUMU ELISARA of Saoluafata, matai, TAAMAI KAPISI of Saoluafata, Matai, ASOMUA LMS of Saoluafata, Matai, LOAU AUKUSITINO, of Saoluafata, Matai, AIGAMAUA FELETI, of Saoluafata, Matai

Plaintiffs

A N D:

LAND AND TITLES COURT, continued under section 25 of the Lands and Titles Act 1981

First Defendant

A N D:

THE PRESIDENT OF THE LAND AND TITLES COURT, Constituted under section 77 of the Land and Titles Act 1981

Second Defendant

A N D:

MULITALO LISONA LAVEA

Third Defendant

A N D:

GALEA’I PA’U TAFAOGALUPE TAGALOAMATUA MULITALO

Fourth Defendant

Counsel: S Ponifasio for the Plaintiffs
S. Ainuu for the First and Second Defendants
B Latu for the Third Defendants
Fourth Defendant in person

Hearing: 22nd September 2021, 24th November 2021, 29th April 2022

Decision: 31st May 2022

JUDGMENT OF THE COURT

Introduction

1. The current application to strike-out the second amended statement of claim and second amended notice of motion for judicial review has its genesis in the judgment of Clarke J in the application to strike-out the first amended statement of claim and first amended motion for judicial review.

Background

2. The plaintiffs by its second amended statement of claim and second amended notice of motion for judicial review and for extraordinary remedies seek declarations that certain documents (“questioned documents”) purportedly produced and relied upon by the Land and Titles Courts in both the Lower Court (first defendant) and the Appellate Court (second defendant) in their decisions which benefitted the third and fourth defendants, were not genuine documents. They were fraudulently generated. Seven documents are alleged to be questioned documents.
3. It is alleged, “That the first defendant in so far as it used, relied and was influenced by the questioned documents in reaching its decision in 2015 breached the plaintiffs’ right to a fair hearing through the conduct of the proceedings.”^[1]
4. As against the second defendant it is alleged that in re-affirming the first defendant’s decision the second defendant failed to remedy the breach of Article 9 by the first defendant, thus also breached the plaintiffs’ right to a fair hearing under Article 9 of the Constitution.^[2]
5. Against the third and fourth defendants it is alleged that they relied on the questioned documents to support their submissions and claims.
6. The plaintiffs say the Land and Titles Court was misled by the questioned documents which were cited only by the third and fourth defendants and only discovered by the plaintiffs after the Lower Court and Appellate Court hearings.^[3]
7. In support of the plaintiffs’ claim that the questioned documents are not genuine, an affidavit by one Gordon Arthur Ian Sharfe (“Mr. Sharfe”) a Chief Document Examiner with the New Zealand Police was filed after he examined copies of questioned documents given to him by the plaintiffs. The questioned documents examined were not original documents. At page 3 of Mr. Sharfe’s report he states:
   • “Some are copies of copies and the image quality of many is poor. These factors have limited some of the examinations possible and the level of opinion that can be achieved.”

Mr. Sharfe raised concerns about the appearance of the text on most of the questioned documents which in the 1920’s to the 1950’s could only have been created by typewriters. He opined that the appearance of the text on the documents is more uniform than would be expected which the output of a typewriter and include functionality, particularly around underlining behaviour, which is beyond the capabilities of a typewriter. None of the questioned texts exhibit the uneven pressure, baseline variations, manual corrections and over-typing of letters characteristic of typewriters and observed throughout the comparison documents. He then concluded that the examination of the original documents would allow a definitive opinion to be reached.^[4]

8. Mr. Sharfe also raised concerns over the signatures on some of the documents^[5] which he claims cannot be relied upon as genuine. He also raised issue over stamp impressions.^[6]

The First Amended Statement of Claim

9. Application by the defendants to strike-out the first amended statement of claim and the first amended notice of motion for judicial review was heard by Clarke J. By judgment dated 28^th August 2020, Clarke J noted that the issue between the parties is the procedure adopted in the Land and Titles jurisdiction in terms of the use and reliance on the questioned documents. He said at paragraph 43:
   • “...In particular, relevant for my determination in these strike out proceedings is the assertion by the Plaintiffs that the ‘questioned documents’ had only been cited by the parties represented by Mulitalo Lisona...and Galea’i Pa’u Tafaogalupe Mulitalo, and the documents discovered by the Plaintiffs after the LTC hearing.”
10. He continued at paragraph 44:
    • “If this is correct, the Plaintiffs claim against the First and Second Defendants cannot be characterized as one that cannot possibly succeed, is hopeless or without foundation. This is because if the ‘questioned documents’ were not available to the Plaintiffs at the hearings in the LTC jurisdiction but they were however referred to and relied on by the First and Second Defendants, the LTC questioned the parties on those documents and those documents were then relied on by the LTC in its judgment, then the Plaintiffs claim cannot in my assessment be said as one that cannot possibly succeed, hopeless or without foundation. The purported failure by the Plaintiffs to have access to the ‘questioned documents’ for the purposes of the LTC proceedings, if correct, may amount to a breach of the right to a fair trial in these circumstances.”

Clarke J opted to grant leave to the plaintiffs to amend their statement of claim to particularize sufficiently the allegation that they did not have access to the questioned documents, as well as other issues listed in paragraph 56 of the judgment.

The Land and Titles Act 2020 and Constitution Amendment Act 2020

11. The second amended statement of claim and second amended notice of motion for judicial review were filed on the 14^th September 2020, about 17 days after the delivery of the decision by Clarke J. In response, the first and second defendants filed application to strike-out both the second amended statement of claim and the second amended notice of motion.
12. One of the grounds advanced to support the strike-out application is grounded on the provisions of the recently enacted Land and Titles Act 2020 and Constitution Amendment Act 2020 which Parliament passed before the amended statement of claim and notice of motion were filed. The amendments effectively prohibited the Supreme Court from reviewing decisions of the Land and Titles Court. Jurisdiction to review decisions of the Land and Titles Court were conferred by the newly enacted Land and Titles Act 2020 on the Land and Titles Court of Appeal and Review.
13. Section 57 of the Land and Titles Act 2020 provides:
    • 57. Supreme Court and Court of Appeal Decisions not binding:
    • (1) The decisions of the Supreme Court and Court of Appeal are not binding on the Land and Titles First Court, Land and Titles High Court or Land and Titles Court of Appeal and Review.
    • (2) All decisions of the Supreme Court and the Court of Appeal on matters the subject of the jurisdiction of the Land and Titles First Court issued and delivered prior to the commencement of the Constitution Amendment Act 2020 and this Act, shall not bind the Land and Titles First Court, the Land and Titles High Court and the Land and Titles Court of Appeal and Review.
    • (3) All rights or interests created or vested by the decisions referred to in subsection (2) shall subsist.

Memorandum of counsel for plaintiff

14. In her written memorandum dated 23^rd November 2021, counsel for the plaintiffs agreed and consented to withdraw the motion for judicial review and for orders to set aside the 2015 decision of the Land and Titles Lower Court and the 2017 Appellate Court decision. She will proceed to file the application for review in the Land and Titles Court of Appeal and Review.
15. She noted at paragraph 4 of the memorandum:
    • “Section 67 of the Land and Titles Act is silent on the treatment of a judicial review application which was filed before the Constitutional Amendment Act 2020 and the Land and Titles Act 2020 came into force. The non-binding of a decision of the Supreme Court to be issued and delivered (if this proceeding was to continue) under section 57(1) of the Land and Titles Act appears to render continuing hearing of the judicial review application in the Supreme Court, and the relevant remedial orders sought, an academic exercise.”
16. But, the plaintiffs insist that the Supreme Court should:
    • “Continue to hear the application for a Declaratory Order in relation to the questioned documents pursuant to Declaratory Judgments Act 1988. The proceeding will require a detailed examination of the documentary evidence which was used and relied on in the relevant Land and Titles Court and Appellate Division of the Land and Titles Court proceedings, an issue which is relevant to the administration of justice.”^[7]
17. The first and second respondents maintain that the plaintiffs claim seeking declaration that the questioned documents are not genuine should be struck out.

The 2015 Land and Titles Lower Court and 2017 Land and Titles Court Appellate Court hearings

18. The principal issue determined at the 2015 Land and Titles Court hearing was the rightful heirs of the matai title Tagaloamatua of Solaua and Manunu. There were nine parties. Five petitioners include the third and fourth defendants. The four respondents include a party representing the orators and chiefs (Alii ma Faipule) of Saoluafata. They are not heirs, they did not claim to be heirs; they claim that the matai title Tagaloamatua is confined to or belongs to Manunu village, not Solaua. They contended Solaua is not a village. They were the fourth respondents in the 2015 hearing.
19. The third named, fifth named and sixth named plaintiffs were members of the fourth respondents. The rest of the plaintiffs, namely, the first, second, fourth, seventh and eighth were not parties.
20. In granting leave to the plaintiffs to file a second amended statement of claim, Clarke J ordered the plaintiffs to particularize the basis upon which they have standing to bring these proceedings as plaintiffs.”^[8] Clarke J accepted that these particular plaintiffs, whilst they may have an interest in the 2015 proceedings as heirs of the title Tagaloamatua or as matai of Saoluafata, they were not a party in the 2015 hearing. In the circumstances where they were not a party in the hearing where the questioned documents were allegedly referred to and relied on; it is not clear on the pleadings how these named plaintiffs then claim standing to bring these proceedings.^[9]
21. Paragraphs 1 to 9 of the second amended statement of claim particularize the basis upon which these plaintiffs have standing to institute the proceedings. According to paragraphs 1 to 9 and paragraph 14 of the Amended Statement of Claim, the plaintiffs were represented in the 2015 Land and Titles Court hearing by the fourth respondent. But the fourth respondent as noted in
    paragraph 18 above did not claim to be heirs of the Tagaloamatua matai title. The First and Second named plaintiffs, although specifically alleged in paragraphs 1 and 2 of the Amended Statement of Claim to be heirs and descendants of the title Tagaloamatua, they could not identify themselves with any other party which the Court determined were representatives of the heirs of Tagaloamatua. Indeed the first named defendant deposed at paragraph 8 of her affidavit dated 21/9/2018:
    • “I am one of the applicants. The other co-applicants .... are matais of Saoluafata .... These are matais who represented the Alii ma Faipule of Saoluafata at the relevant Land and Titles Court cases.”
22. Which follows that the plaintiffs are not heirs of Tagaloamatua and therefore may not have satisfactorily complied with the order of Clarke J.

Did the plaintiffs have access to the questioned documents before the 2015 Land and Titles Court hearing?

23. The plaintiffs at paragraph 32(a) of the second amended statement of claim say they did not have access to the questioned documents:
    • “(a) The plaintiffs never had access to Questioned Documents until the third defendant and fourth defendant started to rely on these documents in LTC proceedings...”^[10]
24. The contention by the plaintiffs according to the transcript of the 2015 court proceedings is false and misleading. All the parties in the 2015 Land and Titles Court hearing accessed the questioned documents which obviously were in the Court file.
25. The third petitioners did not contest there was a Mavaega in 1922.^[11] The same party also referred to and cited the 1921 LC 615 in their written statement to the Court.^[12]
26. The fourth petitioners at the last sentence page 104 of the transcript acknowledged the 1922 Mavaega and at page 105 told the Court they accept the Mavaega.
27. The fifth petitioners told the Court that they are heirs of Mautoga Tagaloamatua mentioned in the 1922 Mavaega.^[13]
28. The first and second petitioners are the third and fourth defendants in these proceedings.
29. The first respondents told the Court the 1922 Mavaega was made by Leatuvai, a matai of Manunu who held the title Tagaloamatua.^[14]
30. The leader of the second respondent, Tapu Iefata Seiuli was asked by the Senior Judge if he has a copy of the 1922 Mavaega and he responded he has one.^[15]
31. The leader of the third respondent also had a copy of the 1922 Mavaega^[16] but he told the Court his party did not accept it.
32. The fourth respondents at pages 178 to 179 of the transcript corrected the bench that the document dated 16/11/1959 is not a Court proceeding.^[17] It was objected to by the fourth respondent on the basis that their forbearers Tagaloa and Sagapolutele, had no lawyer but the opposing side of Mulitalo was assisted by his lawyer during the discussion recorded in the 1959 document.
33. Obviously the 1922 Mavaega was the most relevant document of the seven questioned documents. The other six documents related to customary land matters.

Supreme Court jurisdiction to grant declaratory orders.

34. Section 4 of the Declaratory Judgments Act 1988 (“the Act”) gives jurisdiction to the Supreme Court to make declaratory orders. That section provides:
    • 4. Declaratory orders by motion – (1) Where a person:
    • (a) has done or desires to do an act the validity, legality, or effect of which depends on the construction or validity of a statute, or a regulation made by the Head of State, acting on the advice of Cabinet, under statutory authority, or a bylaw, or a deed, will, or document or instrument of title, or an agreement made or evidenced by writing, or a memorandum or articles of association of a company or body corporate, or an instrument prescribing the powers of a company or body corporate; or
    • (b) claims to have acquired a right under a statute, regulation, bylaw, deed, will, document or instrument of title, agreement, memorandum, articles or instrument, or to be in any other manner interested in the construction or validity thereof;
    • the person may apply to the Supreme Court by motion for a declaratory order determining a question as to the construction or validity of such statute, regulation, bylaw, deed, will, document or instrument of title, agreement, memorandum, articles, or instrument, or of any part thereof.
35. Section 3 enables the Court to make declarations where no consequential relief is sought. And section 12 provides:
    • 12. Declaratory judgments or orders in cases where Court cannot give relief – The jurisdiction conferred under this Act upon the Supreme Court to give or make a declaratory judgment or order is not to be excluded by the fact that the Supreme Court has no power to give relief in the matter to which the judgment or relates, or that such matter would, independently of this Act, be within the exclusive jurisdiction of any other Court.
      
36. Pursuant to section 11, the Court has a discretion to refuse to give or make any judgment or order on any grounds which the Court deems fit.

Refusal by the Court to entertain the application by the plaintiffs for declaratory orders.

37. The Act was passed to enable the Court to hear arguments upon the construction of statutes and other instruments listed in section 4. “If one is to go further than that, the limit should be a case where its facts are clear cut and absolute and the determination to be arrived at upon them determines some right.^[18]
38. In pursuing the declaration sought, the plaintiffs are asking this Court to determine and pronounce favourably for them on a question of fact which will enable the Court of a different jurisdiction to rule in favour of the plaintiffs. Such intervention on the part of this Court in the business of another Court would be contrary to the spirit of the Act. The order sought is one of the issues which the Land and Titles Court of Appeal and Review will determine when it considers the judicial review proceedings. The Act does not permit this Court to embark on a fact finding exercise to determine whether the questioned documents are genuine or not.
39. In any event it is undesirable and inexpedient to embark on the exercise sought by the plaintiffs. The originals of the questioned documents cannot be found and the expert document examiner has opined in his report that this very factor has limited some of the examination possible and the level of opinion that can be reached. He also opined that, “A definitive opinion regarding their production cannot be reached without examining the original document.”^[19]
40. It need not be emphasised that if the judge or jury reaches the conclusion that any part of the evidence of the expert amounts to speculation or guessing, the judge or jury should not hesitate to reject it and would then have to consider the weight that would be put on the remainder of the expert evidence.
41. It would be contrary to the interests of justice to entertain the application when the Court of a different jurisdiction has yet to consider and rule on the same subject matter.

Result

42. (a) The application for declaratory orders is declined and is struck out.
    • (b) Given the circumstances which compelled the plaintiffs to remove the plaintiffs statement of claim and notice of motion from the Supreme Court to the jurisdiction of the Land and Titles Court of Appeal and Review, I will make no orders to costs.

JUSTICE VAAI

^[1] Second Amended Statement of Claim, paragraph 38.
^[2] ibid., paragraph 39.
^[3] Second Amended Statement of Claim, paragraph 32.
^[4] Report by Gordon Arthur Ian Sharfe, paragraphs 4.2 & 4.3
^[5] ibid., paragraph 4.4.
^[6] ibid., paragraph 4.5
^[7] Memorandum of the plaintiffs dated 23/11/21, paragraph 6.
^[8] Cleverley v Land and Titles Court [2020] WSSC 49 (28 August 2020) at paragraph 56.
^[9] ibid., at paragraph 5.
^[10] Paragraph 32(a) Amended Statement of Claim, paragraph 32(a).
^[11] Transcript LC 11951/P1-P12 (Land and Titles Court) 29 May 2015 at page 83. The Mavaega is the second document listed by the plaintiffs as a Questioned Document.
^[12] ibid., page 91. 1921 LC 615 is the first document on the plaintiffs list of Questioned Documents.
^[13] ibid., page 117. Last two sentences.
^[14] ibid., page 126.
^[15] ibid., page 146.
^[16] ibid., page 167.

^[17] Plaintiffs called this questioned document the “1959 Mediation”.
^[18] New Zealand Court of Appeal in Fletcher & Anor v Wainono Drainage Board [1917] NZLR 405 at 423.
^[19] Report by Gordon Arthur Ian Sharfe, paragraph 4.