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Taetafe v Attorney General [2004] WSSC 28 (5 May 2004)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

PAULI TAETAFE
of Salelologa, Matai

Plaintiff

AND:

ATTORNEY GENERAL,
sued on behalf of the Minister for Lands, Surveys and Environment
Defendant

Counsel: Mr S Toailoa for the defendant
Mr DM Clarke for prosecution

Hearing:
Decision: 5 May 2004

DECISION OF JUSTICE VAAI

The plaintiff says that he is the owner of certain customary land situated at Salelologa which over twenty years ago was taken by the Government on a leasehold basis for a period of 20 years. It was only recently that he discovered that his land was compulsorily taken by government by proclamation pursuant to the provisions of the Taking of Lands Act 1964 and to date no compensation or rent payments have been received by the plaintiff from the government or any other persons. According to the search recently conducted at the department of Lands Survey and Environment (as the department was then known) on behalf of the plaintiff, it was discovered:

7 (1) That by the Proclamation 196p advertised in the Western Samoa Gazette 1977 at p.794, Parcel 198 (Plan 3887) was taken by the Government for public purposes.

(2) That the said Parcel 198 consisted of 10a.0r.00p of which 8a.0r.33p belonged to the Plaintiff.

(3) That by Conveyance 9732C dated the Parcels 309, 438 and 436 (being part of Parcel 198 aforesaid and comprising 4 acres) were conveyed by the Government to the Western Samoa Trust Estates Corporation (WSTEC).

(4) That by Conveyance 7239C dated the 30^th day of September 1988 Parcel 454 (being part of Parcels 309 and 438) and comprising 0a.2r.00.6p was conveyed by the WSTEC to the Bank of Western Samoa (now the ANZ Bank (Samoa) Limited) for the sum of $40,000.

(5) That by Conveyance 11001C dated the 23 August 1999 Parcel 453 (being part of Parcels 309 and 438) and comprising 0a.2r.21.1p was conveyed by the WSTEC to the ANZ Bank (Samoa) Limited for the sum of $200,000.00.

(6) That by Conveyance 11513C dated the 29^th of September 2000 Parcel 453 referred to in the preceding paragraph was re-conveyed by the ANZ Bank (Samoa) Limited to Ah Liki Investment Corporation Limited for the sum of $250,000.

By the same statement of claim the plaintiff acknowledges that pursuant to section 27(1) Taking of Lands Act 1964 his claim for compensation should have been filed within 5 years. He accordingly admits that his claim for compensation is pursuant to Section 27(1) Taking of Lands Act 1964 statute barred. But he goes on to say that section 27(1) Taking of Lands Act 1964 contravenes Article 14(1) (a) of the constitution and seeks inter alia the following orders in his prayer:

(a) A declaration that section 27(1) Taking of Lands Act 1964 contravenes Article 14(1)(a) of the Constitution and is therefore null and void.

(b) Judgment in the sum of $3.2 million for compensation.

(c) Costs.

(d) Any other relief as the court deems fit.

In response the defendant has in addition to filing a statement of defence has also moved to strike out the Statement of Claim on the following grounds:

(a) the Statement of Claim discloses no cause of action

(b) the plaintiff’s claim is statute barred by virtue section 27(1) Taking of Lands Act 1964.

(c) The plaintiff is precluded from proceeding with its claim due to non-compliance with Part III Taking of Lands Act 1964.

(d) The plaintiff’s pleadings is made through a procedure error.

(e) And upon the further grounds set out in the affidavit in support of the motion.

It is blatantly clear that the plaintiff’s claim for compensation cannot proceed to a hearing unless he can successfully argue that section 27(1) Taking of Lands Act 1964 is unconstitutional. It is therefore proper and convenient that I deal with that issue first for the simple reason that if I determine that section 27(1) of the Taking of Lands Act 1964 does not contravene article 14(1)(a) of the constitution then the plaintiff cannot proceed and his statement of claim must be struck out.

“Section 27 (1) Taking of Lands Act 1964

Limitation of time for claiming compensation – (1) No claim for compensation under this Act, or any former enactment relating to the taking of land for public purposes, shall be made (in respect of any lands taken) after a period 5 years after the date of the Act or Proclamation taking the lands, or (in respect of any damage done) after a period 12 months after the execution of the purpose out of which the claim has arisen or may hereafter arise.

Article 14 (1)(a) of the Constitution provides:

Rights regarding property – (1) No property shall be taken possession of compulsorily, and no right over or interest in any property shall be acquired compulsorily, except under the law which, of itself or when read with any other law:

(a) Requires the payment within a reasonable time of adequate compensation therefore;

Article 14 (2)(h) of the Constitution provides: Nothing in this Article shall be construed as affecting any general law:

(h) Relating to the limitation of actions;”

Counsel for the plaintiff submits that section 27 of The Taking of Lands Act does not come under the exception in Article 14(2)(h) and therefore contravenes Article 14(1)(a). He argues that the general law that deal with time limitations for filing of actions is the Limitation Act 1975 but not section 27 Taking of Lands Act which is a special provision which deals only with the limitation period for bringing an action for compensation under The Taking of Land Act, and since Section 27 Taking of Land Act is not the general law it therefore does not come under the exception in Article 14(2)(h) so that it contravenes Article 14(1)(a) and as a consequence section 27 is null and void.

But the Taking of Land Act is clearly a general law which provides for the taking of any land for public purposes and for the payment of compensation to any person who has an interest in the land to be taken. It provides the power to take; the procedure for the taking of customary and freehold lands as well the procedure for claiming and ascertaining of compensation. Section 27 which places a limitation on the time within which claims should be made should not be looked at in isolation as counsel for the plaintiff has done to determine whether it is a general law. The whole legislation must be viewed and construed. The Taking of Land Act 1964 does not exclude the payment of adequate compensation within a reasonable time and is consistent with Article 14(1)(a). It is a general law which affects all Samoans, affects all types of land and all kinds of interests in the lands. It was enacted by Parliament pursuant to Articles 14(1) and (2) to provide for the taking of any land required for any public purpose; to provide for the payment of a full and just compensation to any person who has an interest in the land taken and to limit the time for claiming such compensation. It is common sense that the time limitation for claiming compensation should be incorporated under the one and same act which provides the means and manner for acquiring the same lands. So that Articles 14(1)(a) and 14(2)(h) when read together empowers Parliament to enact laws to provide for the taking of land and provide compensation to be paid within a reasonable time. The Taking of Lands Act 1964 was enacted for that purpose.

Accordingly I rule that Section 27(1) Taking of Lands Act 1964 which limits the time for the claiming of compensation to 5 years after the date of the Act or Proclamation does not infringe Article 14(1)(a) and as a consequence the claim by the plaintiff is Statute barred and is struck out.

The defendant is entitled to costs which I fix at $800.00.

JUSTICE VAAI