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Elisara v Attorney General [2004] WSCA 4 (17 December 2004)

IN THE COURT OF APPEAL OF SAMOA
HELD AT APIA

IN THE MATTER of the Taking of Land Act 1964.

BETWEEN

PAULI ELISARA & OTHERS
of Salelologa, Savaii.
Appellants

AND

THE ATTORNEY GENERAL
sued on behalf of the Honourable Minister of Natural Resources and Environment.
Respondent

Coram: The Rt Hon Lord Cooke of Thorndon, President
The Rt Hon Sir Maurice Casey
The Rt Hon Sir Gordon Bisson

Hearing: 7 December 2004

Counsel: TRS Toailoa for Appellants
B H-Latu Madam Attorney General and R Wendt-Wulf for respondent

Judgment: 17 December 2004

JUDGMENT OF THE COURT DELIVERED BY LORD COOKE OF THORNDON

This case concerns compensation for the taking by the Government of some 2,872 acres of customary bush-owned land on the island of Savaii. The land was taken for the construction of the township of Salelologa. The amount of compensation was to be negotiated between the Government and the matai having the pule at the relevant date, 27 June 2000. There is no dispute that these matai were the chiefs and orators (faipule and alii) of the village of Salelologa.

After considerable negotiations, at a meeting in Apia on 1 February 2002 the Government offered four million tala and the senior spokesman, of the village, Matamua Puaatoga, purported to accept the offer on behalf of the alii and faipule. It is common ground that the agreement was to be put into writing. On 25 March 2002 representatives of the Government travelled to Saleologa with a written agreement and at a meeting it was signed by the Minister of Natural Resources and Environment, whose signature was witnessed by the Parliamentary Under-Secretary and the Director, and by Matamua Puaatoga (‘high chief for and on behalf of the Alii and Faipule of Saleologa.’) Matamua’s signature and perhaps the agreement as a whole were witnessed by ten persons, including one or more from each of six of the seven subvillages (foaiala); but no witness from Sakalafai signed as a witness or otherwise. The four million tala was fully paid by instalments, some of them subsequent to the written agreement, but none was accepted in full and final settlement or similar terms, and we reject any suggestion of estoppel or the like. The claimants are entitled to treat the payments as made on account.

In a claim under the Taking of Land Act 1964 Pauli Elisara and others sought 45 million tala. The date of this was 24 April 2002. The claim was initiated by the alii and faipule of Sakalafai and joined at some stage by the alii and faipule of two other subvillages, Sapulu and Foua. At the hearing in this Court no point was taken as to the precise identity of the claimants; we are not called upon to consider that question.

The claim was heard in the Supreme Court by Vaai J. His decision is dated 25 June 2004. In accordance with the opinion of a valuer called for the Government, the Government had offered 3.2 million, subsequently increased to 4 million. The only other valuation evidence before the Judge was that of two professional valuers called for the claimants. They assessed the value at 45 million tala and 44,329,626.00 tala respectively. In his judgment the Judge found, for the reasons which he gave, that the valuations by the plaintiffs represented a fair market value of the subject land. But he went on to hold that the agreement was binding. As he put it, telescoping the contrary arguments, ‘I have difficulty in accepting the submission of counsel for the plaintiffs that the tu’ua had no authority to accept the $4 million offer and the execution of the Agreement was without village authorisation and the Agreement should therefore be set aside as it would be unconscionable to treat it as a binding agreement. It is very apparent that the disagreement concerning the Agreement is not with the Government but amongst the chiefs and orators of Salelologa.’ He rejected allegations of unconscionability and undue influence.

The claimants appeal and the Minister cross appeals. We will deal with the issues in the order followed by Vaai J. At the outset it is convenient to say that we see nothing in the argument that the procedure was invalidated by the alleged failure of the Minister to make an offer on the correct valuation basis. As this case demonstrates, what is the correct basis can be, a thorny question of law or mixed law and fact. The statutory machinery would be unworkable if in the event it turned out that the Minister misunderstood the law and if everything thereafter fell to the ground as outside the Act.

Valuation

All the land taken in this case was customary land: that is to say, as defined by Article 101(2) of the Constitution, land held from Samoa in accordance with Samoan custom and usage and with the law relating to Samoan custom and usage. Article 102 is a very important provision of the Constitution, as is made clear by Article 109(1), which entrenches it by requiring before it can be amended two-thirds of the valid votes cast at a poll of the electors enrolled for the territorial constituencies, as well as the normal special requirements for constitutional amendments. But Article 102 itself contains proviso (b), whereby an Act of Parliament may authorise the taking of any customary land or any interest therein for public purposes.

Such an Act is the Taking of Land Act 1964. Section 7 gives authority for customary land and freehold land required for any public purpose to be taken by the Head of State, acting under the advice of the Minister of Lands, Surveys and Environment, under the provisions of the Act. In relation to compulsory acquisition of property or interests therein, Article 14 of the Constitution requires ‘adequate compensation’. Section 25(1) of the 1964 Act implements this by providing that every person having any estate or interest in any land taken under the Act for any public purpose shall be entitled to ‘a full and just compensation for the same from the Minister.’

The governing provisions for assessment are in section 37, which it is appropriate to set out in full.

Assessment of compensation - (1) In this section the term “specified date” means:

(a) In any case of any claim in respect of land of the claimant which has been taken pursuant to sections 14 and 15 of this Act, the date on which the land became by Proclamation vested in Western Samoa;

(b) In the case of any other claim in respect of land of the claimant which has been or is proposed to be taken for any public purpose, the date on which the land became by Proclamation vested in Western Samoa, or the date on which the land was first entered upon for the purpose of the construction or carrying out of the purpose or work, whichever is the earlier;

(c) In the case of any claim in respect of any purpose or work for which no land of the claimant has been taken and no land of the claimant is proposed to be taken, the date of the commencement of the execution of the portion of the purpose or work that causes damage to or injuriously affects the land of the claimant.

(2) In determining the amount of compensation to be awarded, the Court shall act in accordance with the following rules:

(a) No allowance shall be made on account of the taking of any land being compulsory;

(b) The value of land shall, subject as hereinafter provided, be taken to be the amount, which the land if sold in the open market by a willing seller on the specified date might be expected to realise:

PROVIDED THAT the provisions of this paragraph shall not affect the assessment of compensation for any matter which is not directly based on the value of land and in respect of which a right to compensation is conferred under this or any other Act.

(c) The special suitability or adaptability of the land for any purpose shall not be taken into account if that purpose is a purpose to which it could be applied only in pursuance of statutory powers, or for which there is no market apart from the special needs of a particular purchaser or the requirements of any Government Department or any local or public authority;

(d) Where the value of the land taken for any public purpose has on or before the specified date been increased or reduced by the purpose or work or the prospect thereof or by the existence or prospect of any more comprehensive public purpose or scheme or development or reconstruction of which the purpose or work forms part and concerning which a notice is in force under the next succeeding subsection at the time of the taking of the land, the amount of that increase or reduction shall not be taken into account;

(e) The Court shall take into account by way of deduction from the total amount of compensation that would otherwise be awarded on any claim in respect of a public purpose or work (whether for land taken or injuriously affected or otherwise) any increase in the value of any land of the claimant that is injuriously affected or in the value of any other land in which the claimant has an interest, caused before the specified date or likely to be caused thereafter by the purpose or work or the prospect thereof or by the existence or prospect of any more comprehensive public purpose or scheme or development or reconstruction of which the purpose or work forms part and concerning which a notice is in force under the next succeeding subsection at the time of the taking of the land or, as the case may be, at the time of the commencement of the execution of the purpose or work or the portion thereof that causes the damage.

(3) In the case of a comprehensive public purpose or scheme of development or reconstruction the Minister shall by notice gazetted and publicly notified state the nature of the works included in the comprehensive public purpose or scheme and the approximate boundaries of the area affected thereby. The notice shall remain in force for such period as may be specified therein, and may at any time be revoked or amended by notice gazetted and publicly notified. While any notice remains in force as aforesaid the Minister may from time to time by a further notice gazetted and publicly notified extend the operation of the notice for such further period as he thinks fit. Any notice under this subsection may include works commenced before the date of the notice, and whether before or after the passing of this Act.

Up to a point the application of section 37 in this case appears relatively straightforward. On the date on which the land became by Proclamation vested in Samoa the land ceased to be customary land. As provided by section 15(2) it was ‘discharged from all mortgages, charges, claims, estates or interests of what kind so ever for the public purpose stated in the Proclamation.’ The date was 27 June 2000. It was the value of the land on that date that fell to be assessed. Section 37(2)(b) requires the hypothesis of a sale on the open market on that date by a willing seller. This is subject, however, to the highly significant exclusions later in the section. We will turn to the exclusions shortly.

If they are disregarded for the moment, it is obvious that on that date land sold on the open market by a willing seller might be expected to realise much more than its value as customary land. It is true that while the land was still customary there could not have been a sale, on the open market or otherwise, except through a taking by the State; but section 37(2)(b) requires a contrary assumption.

What we have said so far accords in substance with the reasoning of Vaai J. He spoke of the title acquired by the State as a freehold or fee simple title. Strictly that is not correct; the land became public land within the meaning of Article 101(4) of the Constitution. But the Minister’s powers of sale or lease under sections 23 and 23A of the Taking of Land Act are so extensive that we do not consider that there is any practical difference affecting the compensation in this case.

Our conclusion so far also accords with that of the High Court of Australia in Geita Sebea v Territory of Papua [1941] HCA 37; (1941) 67 CLR 544. That case concerned the compulsory acquisition for an aerodrome of land held by natives under a communal usufructuary right. By Ordinance they were forbidden from disposing of it except to the Crown. In answer to one of the questions raised the High Court determined that the land should be valued on the footing that an estate in fee simple freed and discharged from all trusts and encumbrances whatsoever was acquired by the Government.

Geita Sebea was in turn founded on the Privy Council decision delivered by Viscount Haldane in Amodu Tijani v The Secretary, Southern Nigeria [1921] UKPC 80; [1921] 2 AC 399. There the Ordinance expressly empowered the Governor to take lands required for public purposes for an estate in fee simple and the Head Chief to sell on the same basis; but we think that the effect of the Samoan section 37(2)(b) is in this case substantially the same, apart from the exceptions.

The Leveki Mangafaoa of Fifinehoua, Folikimua and Ikimau of Niue v The Cabinet of Ministers of the Government of Niue No. 7478, 19 December 1996, was a decision of the Court of Appeal of Niue presided over by Sir Peter Quilliam. It concerned the acquisition of land inalienable except to the Crown. One ground of appeal was that the Chief Justice had wrongly held that the compensation payable was subject to a reduction on account of inalienability. The Court of Appeal disposed of this point by noting that the Chief Justice had not applied the inalienability test and that in effect no reduction had been made on that account. Their judgment includes a citation of Geita Sebea. There is nothing in the Niue case or any other drawn to our attention contrary to the Geita Sebea decision on this point. On the wording of the Samoan Act and the facts of this case, we reach substantially the same view as the High Court of Australia in holding that inalienability before the taking is irrelevant under s.37(2)(b).

The Attorney General sought to extract help from the decision of the New Zealand Court of Appeal in Valuer General v Mangatu Inc [1997] NZCA 147; [1997] 3 NZLR 641. That case was concerned, not with compulsory acquisition, but with valuation of Maori freehold land under the Valuation of Land Act 1951. The Court accepted that an Act of 1993 imposed very significant constraints on the sale of Maori freehold land, for which confirmation by the Maori Land Court was necessary; and that this should be taken into account. In the judgment of the Court of Appeal, delivered by Richardson P, there is however at p.651 recognition that the prospect of obtaining confirmation would also have to be taken into account. Thus the case raised different considerations from those in the present case. Moreover it was decided on materially different facts and statutory provisions. It is not closely enough in point to be helpful for present purposes.

We must now come to what is probably the most difficult valuation point in the appeal. It is not mentioned in the judgment under appeal. What is the bearing of the exclusionary provisions in section 37(2)(c) and (d)?

As illustrated for example by Raja Vyricherla Navayana Gajapatiraju v Revenue Divisional Officer, Vizagapatam [1939] UKPC 15; [1939] AC 302 and Maori Trustee v Minister of Works [1958] 3 All ER 336, it is elementary that, subject to any exclusion, unrealised potential has to be taken into account in valuing land. It is a factor which would influence the price agreed between a willing buyer and a willing seller. In other words it is something of value to a dispossessed owner. Allowance has to be made for development costs, contingencies and risks. But this, the potentiality principle, is limited by another which has become known as the Pointe Gourde principle, from the Privy Council case of Pointe Gourde Quarrying and Transport Co. Ltd v Sub-Intendent of Crown Lands [1947] AC 465, although there are many cases before and after that decision where the principle has been affirmed.

The Pointe Gourde principle as expressed in that case is that compensation for the compulsory acquisition of land cannot include an increase in value which is entirely due to the scheme underlying the acquisition. In Fletcher Estates (Harlescott) Ltd v Secretary of State for the Environment [2000] UKHL 10; [2000] 2 AC 307, 315, Lord Hope of Craighead put it that ‘The whole question must be approached upon a consideration of the state of affairs which would have existed if there had been no scheme.’ Section 37(2)(d) partly embodies the Point Gourde principle, but is wider, as is paragraph (c). In particular paragraph (c) provides that the special suitability or adaptability of the land for any purpose shall not be taken into account if that purpose is a purpose to which it could be applied only in pursuance of statutory powers, or is a purpose for which there is no market apart from the requirements of any Government Department or any local or public authority. The purpose here is stated in the Proclamation: ‘Public Purposes, namely, for the provision of the Township of Salelologa.’ In essence the underlying scheme is for the establishment of a new township.

Regrettably neither of the claimants’ two valuers made any reference in his report to the statutory powers question, nor to whether the requirements of any Government Department or any local or public authority affected the valuation, nor to the Pointe Gourde principle. They both relied significantly as comparable sales of sales of sections of freehold land in the village at prices which, we suppose, may well have been influenced by the existence of the Government scheme or such requirements. For his part the Government valuer was found by Vaai J to have dismissed those sales from consideration because before the taking the land was customary land and therefore had no market value. He appears to have relied primarily on past payments of compensation; but these, too, may have been arrived at on a wrong basis. And he, too, does not appear to have considered the Pointe Gourde principle or section 37(2)(c) and (d).

In relation to the Pointe Gourde principle and exclusionary provisions in an Act, some difficulty has been seen in reconciling the decisions of the Privy Council in the Raja Vyricherla case (1939) and Pointe Gourde (1948). In the Raja’s case, which concerned a source of water supply, the Privy Council held irrelevant in itself the fact that the only possible purchaser for that purpose was the harbour authority. Speaking of a statutory provision excluding ‘any increase in the value of the land acquired likely to accrue from the use to which it will be put when acquired’ Lord Romer said that it meant no more than that the land must be valued as it then stood, and not as it would stand when the land had been acquired and the water on it used for ridding the harbour area of malaria. In New South Wales in Road and Traffic Authority of New South Wales v Perry [2001] NSWCA 251; [2001] 52 NSWLR 222 the Court of Appeal proffered a reconciliation of the two cases on the basis that in the Raja’s case there were two separate schemes. We need not consider this reading of Lord Romer’s judgment, as there appears to be no room for the notion of separate schemes in the present case. And, however that may be, the wording of section 37(2)(c) and (d) is wider than that referred to by Lord Romer.

On the face of it there may well be room for the inference that the land here had a special suitability or adaptability for the purpose of a new township. On such evidence as we have, we would be disposed to draw that inference; but the point remains open. Whether there would have been as at 27 June 2000 any market for the land if the land could not have been applied for that purpose except in pursuance of statutory powers, or apart from the requirements or any Government Department or any local or public authority, are issues which do not appear to have been addressed in the evidence. The issue is not whether the value was diminished because the title was customary; we have disposed of that point favourably to the appellants. Rather the issue is what, disregarding the statutory powers point and the requirements of any Government Department or any local or public authority, a willing vendor and a willing purchaser of the block would have agreed upon as a fair price. In effect it is what a private investor or developer would have paid if on the specified date no departmental requirements existed or were in prospect. We note that paragraph (c) is not limited to existing requirements. The spirit of the paragraph appears to extend to prospective requirements. And it would seem at best doubtful whether a new town project could or would be undertaken by a purchaser not having statutory powers.

Unless the agreement in 2002 is binding, the case will accordingly have to be remitted to the Supreme Court for consideration of the Pointe Gourde and statutory exceptions, both sides being allowed to call evidence and make submissions relevant to these issues.

Constitutionality

Hitherto we have assumed that the Point Gourde principle and section 37(2)(c) and (d) are constitutional. We are satisfied that this is so. The right to ‘adequate compensation’ is not by the Constitution dependent on any particular mode of valuation. No doubt legislation producing manifestly inadequate compensation would not to that extent be valid; but what is adequate compensation for the taking of land is often far from obvious. In our view it must be open to Parliament to impose the restrictions and provisions to be found in section 37(2). Internationally some restrictions are common. We do not think that the Samoan restrictions go beyond what the legislature may reasonably enact. Nor do we accept the argument that the Constitution prevents the parties from settling a claim to adequate compensation by agreement. It certainly does not do so expressly; and to hold that it does so impliedly would be to produce without warrant a serious interference with freedom of contract.

THE AGREEMENT

Translated into English, the written agreement reads as follows.

IN THE MATTER regarding compensation of Customary land in the village of Salelologa as taken by the Government pursuant to the Taking of Land Act 1964.

BETWEEN the Minister of Lands, Survey and Environment for and on behalf of the Government of Samoa.

AND Alii and Faipule of Salelologa.

AGREEMENT made this Monday 25 of March 2002,

REGARDING a meeting held on Friday 1 February 2002 at Malaefatu Salelologa, Savaii, between the two (2) parties in this matter, where the honourable Prime Minister, Honourable Tuilaepa Sailele Malielegaoi, the Minister of Natural Resources and Environment – Honourable Tagaloa Sale Tagaloa, the Parliamentary Under-secretary for the Ministry Natural Resources and Environment, Vagana Peleiupu Tamate, the Director of Ministry of Natural Resources and Environment – Tuuu Ieti Taulealo were representative on behalf of the Government of the Independent State of Samoa, and Alii and Faipule of Salelologa.

WHEREAS pursuant to the PROCLAMATION OF THE HEAD OF STATE registered on the 27 June 2000, under Number 202P with the Registrar of Lands and located at the Directors Office at Apia, book 40 page 65 where customary land was taken as described in Parcel 515 Flur I Faasaleleaga Savaii, plan 6401 with 2872a.1r1.07p for establishment of a new town in Salelologa Savaii for the island of Salafai. AND WHEREAS PURSUANT to Part III especially section 26(1) & (2) of the Taking of Lands Act 1964 regarding compensation for lands taken by Government for the purpose as abovementioned, this Agreement confirms agreement as reached by both parties to this matter after offering the amount of four million tala ($4,000,000) in compensation AND accepted by the village of Salelologa where the village mayor MATAMUA PUAATOGA is representing the village to convey to the Government the agreement of the village THEREFORE THIS AGREEMENT is to confirm and record the agreement of both parties to the amount of Four Million Tala ($4,000,000) for compensation as offered by Government, and accepted by the village pursuant to the Taking of Lands Act 1964.

DATED at Malaefatu Salelologa Savaii on this Monday 25 March 2002

Signed by the Minister of Natural Resources )

)

and Environment, TAGALOA S TAGALOA ) Tagaloa S Tagaloa

) (signature)

for and on behalf of the Government of Samoa )

Signed by MATAMUA PUAATOGA, high chief )

) Matamua Puaatoga

for and on behalf of the Alii & Faipule of Salelologa) (signature)

Witnessed by:

VAGANA PELEIUPU TAMATE Vagana Peleiupu Tamate

(Parliamentary Under-Secretary for Ministry of Natural (signature)

Resource and Environment)

TUUU IETI TAULEALO Tuuu Ieti Taulealo

(Director of Ministry Natural Resources and Environment) (signature)

Village Representatives:

(Ten signatures follow)

The Question of Authority

Before the signing of the written agreement on 25 March 2002, there were five meetings between representatives of the Government and numbers of alii and faipule: viz 2 February 2001 (Ministry Office, Apia); 11 May 2001; (Malaefatu, Salelologa); 19 October 1901, (Prime Minister’s Office, Apia); 11 December 2001 (Malaefatu); 1 February 2002 (Malaefatu). On the Government side one or more Ministers and some departmental officials were always present, and the Prime Minister was present at the meetings in October 1901 and February 2002. It was the Prime Minister who on the latter date put forward the offer of four million tala which was accepted orally by the tuua. It was an increase on the 3.2 million tala which the Government had previously been offering.

On the claimants’ side the tuua was the main spokesman, except at the meetings in February 2001 and October 2001 when he was said to be absent from illness. At the five meetings there were present numbers of alii and faipule. The number 300 was mentioned at the hearing of the appeal. We understood that this referred to those present at the meeting in Salelologa in February 2002. We were told that in all there are about 600 matai in the village. Although on the occasion of the meeting in February 2002 there were present alii and faipule from each of the seven subvillages, and the same may have been the case at earlier meetings, no matai from Sakalafai was present or signed in March 2002. A witness from Sakalafai, one of the claimants, Pauli Apuli, said in evidence that he and his foaiala left the February meeting because they were unhappy with the tuua accepting the offer of four million tala.

In an affidavit in the Supreme Court the Director of Lands, Surveys and Environment deposed that negotiations were conducted with the alii and faipule (at their request) rather than specifically with the seven pitonu’u, and that the Government accepted that their spokesperson and representative was the tuua. At the earlier meetings, he said, the alii and faipule had proposed 300 million tala and then 50 million tala, whereas no specific figure was put forward by them or by the tuua at either of the December or the February meeting. He also said that at the March meeting (the signing) the Minister explained to the tuua and the other alii and faipule present that this written agreement could not be signed ‘if any of the Alii and Faipule were not in agreement with the amount of full and final compensation.’ And that, as no alternative sum was requested, the agreement was then signed by the Minister on behalf of the Government and witnessed; that the tuua’s son Taatua Leone then signed the tuua’s name (as he was unable to write) on behalf of the alii and faipule); and that he, the Director, was then instructed by alii and faipule as to whom of the alii and faipule were the appropriate persons to sign as witnesses to the tuaa’s signature. ‘I then circulated the written agreement amongst the ten selected Alii and Faipule, who all then signed accordingly in my presence.’

There is evidently no transcript of the evidence before the Judge. This Court has only notes made by counsel for the appellants. The Attorney General accepts them as broadly correct, but they can be of only limited help. There seems to have been evidence that the seven subvillages had agreed to $40 million being put by the tuua to the Government at the meeting of 1 February 2002. We were not referred to any evidence to the effect that the alii and faipule had agreed to his proposing or accepting anything less. One Seumanu Tupea from Sapulu, who was present at the February meeting, conceded that the tuua did accept the offer of four million: he said that the village were unhappy but respect their elders. The then Minister of Justice, who is of that foaiala, did sign the agreement. Luamanu Poe of Foa also signed, yet he himself appears to have testified that he did so without authorisation by his foaiala and without reading all the agreement. According to Seumanu Tupea, he himself spoke first at the March meeting and told the tuua not to sign. Also, as this witness apparently testified, Seumanu Aita had later had to pray for forgiveness from his village for having signed the agreement, to avert banishment.

Such is the evidence on the crucial question of the tuua’s authority to accept the Government offer and enter into the agreement. In this part of our judgment we have now mentioned all the evidence of any significance on that question to which we were referred by counsel or which we have been able to find. Scanty as it is, there seems to be nothing more.

That ‘traditionally’ (the Judge’s term) and in this negotiation the tuua is and was the main spokesman for the alii and faipule is clear enough. Whether or in what circumstances he has authority in Samoan culture or customs or in some agreed way to bind them by contract is another matter.

In the argument against the appeal the Attorney General relied much on the Judge’s advantages in seeing and hearing the witnesses and evaluating the whole of the evidence. No application was made by the respondent for leave to call further evidence or for a retrial. The tuua himself did not give evidence of the giving of authority to him to make a binding agreement or to ratify what he did. There is no evidence of authority apart from such inferences as may safely be drawn from the absence of specific objections at the meeting of February 2002 and from the ten signatures of matai in March. The Judge said in his judgment that it is very obvious that the disagreement is among the chiefs and orators of the village. There is not even evidence of how such disagreements can be reconciled according to Samoan custom and usage. A test of consensus was referred to in argument before us and seems sensible, but there is no evidence as to how consensus is to be arrived at or measured.

As recorded in the Director’s affidavit or brief of evidence, at the March meeting he explained that if any of the alii and faipule were not in agreement with the four million tala in full and final settlement the agreement could not be signed. In our view that was an indication that the written agreement was intended to be final, if accepted, and also that until then there was no finality. The evidence does not show how many matai were present at the March meeting. Mr Toailoa in his argument for the appellants spoke of only a handful. It is clear that no one from Sakalafai signed.

As regards inferences from silence, a factor not altogether without relevance is that, especially in the presence of the then Prime Minister, some of the matai might be diffident in expressing opposition. Let it be made clear that we are certainly not finding any undue influence, still less any cheating. It is simply a matter of bearing in mind the sort of considerations vividly captured by Robert Louis Stevenson. The Samoan ‘observes, apprehends, misapprehends, and is usually silent’ (A Footnote to History: Eight Years of Trouble in Samoa, Pasifika Library edition 1996, p.14). But we do not wish to over-emphasise this point: it is only one among many.

Many millions of tala might be at stake, in this case and in others. While having no doubt that parties may settle by agreement claims to compensation for compulsory taking, we hold that the evidence is insufficient in this instance to support the Judge’s conclusion that the agreement was authorised by the alii and faipule. Consequently the claim remains unsettled.

It becomes unnecessary to consider various allegations of unconscionability and undue enrichment made by the appellants. Our decision is not an acceptance of those allegations.

In the result the appeal and the cross-appeal are both allowed. The Supreme Court decision is set aside. The compensation claim is remitted to the Supreme Court for further hearing. The parties will be at liberty to call further evidence and submit arguments on the proper valuation in accordance with the principles explained in this judgment. Costs are reserved and may be dealt with in this Court by memorandum when the final result is known.

To avoid any misunderstanding we say specifically that the appellants have succeeded in having the four million tala figure set aside as not reached by an authorised agreement or correct valuation principles; but this does not mean that the final amount will necessarily be greater. It means only that they have a further opportunity of advancing their claim.

Solicitors:
Toailoa Law Office for the appellants
Attorney General’s Office for the respondent