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Supreme Court of Samoa |
IN THE SUPEME COURT OF SAMOA
HELD AT APIA
BETWEEN:
ALII AND FAIPULE OF SATAPUALA
represented by
TOALEPAIALII TOESULUSULU SI’UEVA II,
VAILI MIMITA,
FOLASA FAITASIGA,
ILIOLEMALAE FAAMAU,
TAUVALA’AU TINEI,
TOESULUSULU SU’AFAIGA CEDRIC,
LASEI SIONE and MAOMALIE AIOMANU
all of Satapuala, all Matai.
Plaintiffs
AND:
ATTORNEY GENERAL
as representative of the
Samoa Trusts Estates Corporation,
a duly incorporated Corporation established
pursuant to the Samoa Trusts Estates Corporation Act 1977.
First Defendant
AND:
GOVERNMENT OF SAMOA represented by the ATTORNEY GENERAL
Second Defendant
Counsel: M V Peteru for plaintiffs
R Schuster for first defendant
D Kerslake and K. Seuseu for second defendant
Hearing: 16 October 2008
Ruling: 16 October 2008
Judgment: 24 October 2008
JUDGEMENT OF SAPOLU CJ
Proceedings
[1] These proceedings are concerned with motions brought by the first defendant and second defendant to strike out the plaintiffs’ statement of claim dated 7 December 2007.
[2] The plaintiffs’ are the Alii and Faipule of the village of Satapuala representing the people of Satapuala. The first defendant is the Attorney General sued on behalf of the Samoa Trusts Estates Corporation established pursuant to the Samoa Trust Estates Corporation Act 1977 (as amended). The second defendant is the Government of Samoa represented by the Attorney General.
[3] It was not raised as an issue whether it is appropriate to sue the Attorney General on behalf of the Samoa Trust Estates Corporation which is a statutory corporation. It was also not raised as an issue whether the Attorney General should simply have been sued direct on behalf of the Government of Samoa pursuant to s.9 of the Government Proceedings Act 1974 rather than the Government being sued as "represented by the Attorney General". So I say no more about these matters.
Approach to a motion to strike out a statement of claim
[4] The approach followed by the Samoan Courts in summary proceedings on a motion to strike out a statement of claim as disclosing no reasonable cause of action has been discussed in numerous cases that it is now settled and well-known. For instance, in Enosa v Samoa Observe Co Ltd [2005] WSSC 6 this Court said:
"The principles governing the exercise of the Court’s jurisdiction on a motion to strike out a statement of claim on the ground that it does not disclose a cause of action has been discussed in so many cases before the Samoan Courts that they have become well-known. The jurisdiction to strike out a statement of claim as disclosing no reasonable cause of action must be sparingly exercised. The factual allegations in support of the claim are assumed to be true and correct. The jurisdiction will only be exercised where it is very plain and obvious that the plaintiff’s claim is so clearly untenable that it cannot possibly succeed".
[5] The same approach is stated in similar terms in Peter Meredith Co Ltd v Drake Solicitors Nominee Co Ltd [2001] WSSC 32; Bluesky Communications Ltd v Attorney-General [2007] WSSC 58.
[6] The Court’s jurisdiction to strike out a statement of claim as disclosing no reasonable cause of action is derived from two sources, r.70 of the Supreme Court (Civil Procedure) Rules 1980 and the Court’s inherent jurisdiction.
[7] The Court also has inherent jurisdiction to strike out or dismiss an action which is frivolous, vexatious and/or an abuse of process: Enosa v Samoa Observer Co Ltd [2005] WSSC 6; Kneubuhl v Salū Liugalua [2000] WSSC 29 per Wilson J.
[8] In Enosa v Samoa Observer Co Ltd [2005] WSSC 6, this Court said:
"In Bullen, Leake and Jacobs Pleadings and Precedents 12th ed at p.145, it is there stated that a pleading or an action is frivolous when it is without substance, groundless, fanciful, wasting the Court’s time or not capable of reasoned argument. A pleading or an action is said to be vexatious when it is lacking in bona fides, hopeless, without foundation, cannot possibly succeed or oppressive".
[9] Further on in Enosa, this Court referred to Goldsmith v Sperrings [1977] 2 AII ER 566 where Lord Denning MR said at p.574 that an action is an abuse of process "when it is diverted from its true course so as to serve extortion or oppression or to exert pressure so as to achieve an improper end".
[10] As it would appear from the above, there is much overlap between the notion of an action being ‘frivolous’ and the notion of an action being ‘vexatious’.
[11] In these strike out proceedings, the defendants claim that the plaintiffs’ statement of claim discloses no reasonable cause of action and that it is also frivolous, vexatious and/or an abuse of process. Furthermore, the defendants say that the plaintiffs claims are time barred under the provisions of the Limitation Act 1975.
The plaintiffs causes of action
[12] The plaintiffs in their statement of claim of 7 December 2007 plead three causes of action, fraud, compensation, and negligence.
(a) Fraud
[13] Where an allegation of fraud is relied upon in an action, how it is to be pleaded and proved was discussed in the recent decision of the House of Lords in Three Rivers District Council v Bank of England [2001] 2 AII ER 513. In that case, Lord Millet said at p.578:
"It is well established that fraud or dishonesty...must be distinctly alleged and as distinctly proved; that it must be sufficiently particularised; and that it is not sufficiently particularised if the facts are consistent with innocence...This means that a plaintiff who alleges dishonesty must plead the facts, matters and circumstances relied on to show that the defendant was dishonest and not merely negligent, and that facts, matters and circumstances which are consistent with negligence do not do so
"It is important to appreciate that there are two principles in play. The first is a matter of pleading. The function of pleadings is to give the party opposite sufficient notice of the case which is being made against him. If the pleader means ‘dishonestly’ or ‘fraudulently’, it may not be enough to say ‘willfully’ or ‘recklessly’. Such language is equivocal...
"The second principle, which is quite distinct, is that an allegation of fraud or dishonesty must be sufficiently particularised, and that particulars of facts which are consistent with honesty are not sufficient. This is only partly a matter of pleading. It is also a matter of substance. As I have said, the defendant is entitled to know the case he has to meet. But since dishonesty is usually a matter of inference from primary facts, this involves knowing not only that he is alleged to have acted dishonestly, but also the primary facts which will be relied upon at trial to justify the inference. At trial the Court will not normally allow proof of primary facts which have not been pleaded, and will not do so in a case of fraud. It is not open to the Court to infer dishonesty from facts which have not been pleaded, or from facts which have been pleaded but are consistent with honesty. There must be some fact which tilts the balance and justifies an inference of dishonesty, and this fact must be both pleaded and proved".
[14] Earlier on in Three Rivers District Council, Lord Hobhouse said at pp.569-570:
"The law quite rightly requires that questions of dishonesty be approached more rigorously than other questions of fault. The burden of proof remains the civil burden-the balance of probabilities-but the assessment of the evidence has to take account of the seriousness of the allegations and, if that be the case, any unlikelihood that the person accused of dishonesty would have acted in that way. Dishonesty is not to be inferred from evidence which is equally consistent with mere negligence. At the pleading stage the party making the allegation of dishonesty has to be prepared to particularise it and, if he is unable to do so, his allegation would be struck out. The allegation must be made upon the basis of evidence which will be admissible at the trial. This common sense proposition has recently been re-emphasised by the Court of Appeal in Medcalf v Mardell (2001) Times, 2 January, in which Peter Gibson LJ said: ‘The material evidence must be evidence which can be put before the Court to make good the allegation’. Evidence which cannot be used in Court cannot be relied upon to justify the making of the allegation of dishonesty".
[15] The plaintiffs in their statement of claim plead their action in fraud solely on the basis of fraud without linking it to any distinct cause of action.
[16] In Three Rivers District Council v Bank of England [2001] 2 AII ER 513, the allegations of fraud were pleaded in support of a cause of action in tort. The plaintiffs in this case have not alleged fraud as the basis of a distinct cause of action. What has been done is to allege fraud as a cause of action in itself.
[17] In Bullen, Leake and Jacobs Precedents of Pleadings (2004) 15th ed, vol 2 al 48-01, p.795, the learned authors state:
"An action in fraud will usually include one or more of the following distinct causes of action:
(1) Fraudulent misrepresentation or deceit;
(2) conspiracy;
(3) unlawful interference/inducing breach of contract;
(4) bribery;
(5) money had and received;
(6) constructive trusts: knowing receipt and dishonest assistance.
" There are likely to be claims to trace assets in equity or, perhaps, at common law".
[18] In their cause of action in fraud, the plaintiffs claim that two lots of land were taken from the plaintiffs’ forefathers, the first in 1894 and the second in 1942.
[19] In relation to the first lot of land, the pleadings in the statement of claim allege that in or about 1894, eight thousand seven hundred and eighteen (8,718) acres of land was vested pursuant to Court Grant 92 in the names of Dr H. Shockfleth, Dr S.G. Bartlema and a third person. This was during the period of time when Samoa was a German protectorate under a German Administration. The Court Grant 92 which is referred to here by the plaintiffs must have been a grant of land made by the then Supreme Court of Samoa which was established under Article III of the Final Act of the Conference of Berlin on Samoan Affairs of 14 June 1889.
[20] The plaintiffs pleadings then allege that out of the aforesaid 8,718 acres, 6,000 acres more or less belonged to the people of Satapuala. However, it is not explained how the plaintiffs came to the conclusion that 6,000 acres out of the 8,718 acres approved under Court Grant 92 belonged to the people of their village.
[21] It is then alleged that the lands under Court Grant 92 were later vested in the Cornwall Estates, and later in the New Zealand Reparation Estates (NZRE) and finally in the Western Samoa Trust Estates Corporation which has been re-named the Samoa Trust Estates Corporation on whose behalf the Attorney-General has been sued as first defendant in these proceedings.
[22] The plaintiffs then allege that the said 6,000 acres was taken by the "Administration". It is claimed that this 6,000 acres was taken without the knowledge of or consultation with the Alii and Faipule of Satapuala at the time and therefore it was illegal. This must be in relation to the taking during German times of the total area of 8,718 acres of which the 6,000 acres formed part.
[23] Finally, the plaintiffs assert that the taking of lands in 1894 from the village of Satapuala and the subsequent vesting of the same lands in the Samoa Trust Estates Corporation was illegal and fraudulent and should be declared void. The said lands should therefore be restored to the plaintiffs as the Alii and Faipule of Satapuala.
[24] In relation to the second lot of land claimed by the plaintiffs to have been taken from their village, it is alleged that in 1942, during the Second World War, the "Administration", which must mean the New Zealand Administration which administered Samoa at that time, took eight hundred and sixty five (865) acres of land which belonged to the people of Satapuala for defence purposes under the Defence Emergency Regulations 1939/123. A copy of these Regulations was not made available to the Court. I would assume for present purposes that the name, year and number of the said Regulations as cited by counsel for the plaintiffs are correct.
[25] Twenty six (26) representatives of the village of Satapuala gave their signed consent to the use of the said land for defence purposes.
[26] It is then alleged by the plaintiffs that the Defence Emergency Regulations 1939/123 implied that after the state of emergency the land taken would be returned to its rightful owners. As the said Regulations were not produced it is not clear whether it did imply, as claimed on behalf of the plaintiffs, that the land was to be returned to the people of Satapuala from whom it was allegedly taken. This is not an allegation of fact which I can assume to be correct. It is an allegation of law whose correctness I do seriously doubt because the New Zealand Administration did give lands to the village of Satapuala in exchange for the lands taken from them for defence purposes. This suggests that the 1939 Regulations did not imply that the lands taken for defence purposes were to be returned to Satapuala after the state of emergency whose duration and outcome must have been unknown and uncertain at the time the lands were taken.
[27] The plaintiffs then allege that in 1945, after the state of emergency, the Samoa Land for Defence Purposes Order 1945 was passed to legalise the taking of lands for defence purposes which meant the land was not to be returned to the Alii and Faipule of Satapuala. This allegation implies that the taking of the land in 1942 for defence purposes pursuant to the Defence Emergency Regulations 1939/123 was illegal and had to be legalised pursuant to the Samoa Land for Defence Purposes Order 1945. But how could that be unless the said Regulations were invalid. The plaintiffs have not shown that the Regulations were invalid. In any event, this is also not an allegation of fact which I can assume to be correct. It is another allegation of law.
[28] It is then alleged that in 1961 prior to Independence, the said land, which I take to mean to be the 865 acres taken under the Defence Emergency Regulations 1939/123, was the subject of an Order in Council by the New Zealand Cabinet.
[29] This Order in Council vested in the Western Samoa Trust Estates Corporation title to an area of approximately 1,701 acres taken by the Crown in 1945 and approved the alteration of the public purpose for which the land was taken in 1945 into "civil aviation" in respect of Faleolo Aerodrome and into "plantation" in respect of the Western Samoa Trust Estates Corporation land.
[30] If as first alleged by the plaintiffs, 865 acres of land was taken from their village for defence purposes in 1942, then where does the 1,701 acres of land come from?
[31] The plaintiffs then allege that they believe the first defendant and the second defendant acquired the said 1,701 acres illegally and fraudulently in that they failed to advise the people of Satapuala of the change in public purpose into "civil aviation" and "plantation". This allegation is made notwithstanding that the change in public purpose was made pursuant to a decision of the New Zealand Cabinet in 1961 before the Samoan Government came into being on 1 January 1962 which was Independence Day. It was also not the Western Samoa Trust Estates Corporation that changed the public purpose for which the said 1,701 acres was taken. That was done by the New Zealand Cabinet at the time.
[32] However, the plaintiffs do acknowledge that the following lands were given in exchange by the New Zealand Administration to the Alii and Faipule of Satapuala: 580 acres at Magia which is currently occupied by the plaintiffs, 236 acres at Tuavao-uta, and 254 acres at Tafuaupolu. This is a total of 1070 acres.
[33] It is further acknowledged by the plaintiffs that the said lands were declared to be customary lands by Order of the Supreme Court of Samoa in 1950. I do not think the reference here to the "Supreme Court of Samoa" is correct because the "Supreme Court" only come into being under the Constitution which came into force on 1 January 1962. Probably, what is meant here is the "High Court" which was established by the Samoa Act 1921 and was in existence prior to Independence Day.
[34] The plaintiffs then claim that the said lands are still held in the name of the Government of Samoa and have never been transferred to the plaintiffs as the Alii and Faipule of Satapuala.
[35] I have difficulties in understanding the plaintiffs here. If the High Court had declared in 1950 that the said lands are customary lands, then one would expect that in law the said lands are customary land, not public land or freehold land: What more is required is to make the said lands customary lands which would therefore be lands held in accordance with Samoan custom and usage and with the law relating to custom and usage as "customary land" is defined in Article 101 (2) of the Constitution?
[36] The said lands are also occupied by the plaintiffs, not the first or second defendant. Customary land is also not transferable by deed of conveyances and are not registered in the land register for freehold land and public land.
[37] The plaintiffs then claim that the taking of the said lands by written agreement between the New Zealand Administration and their forefathers in 1942 for defence purposes was fraudulent and should be declared void. Likewise, the vesting of the land by the New Zealand Administration in the Western Samoa Trust Estate Corporation (now re-named "the Samoa Trust Estates Corporation") in 1961 was illegal and should be declared void. The plaintiffs therefore claim that the land should be restored to them.
(b) Compensation
[38] The plaintiffs claim compensation of $50 million for the 6,000 acres of land that is alleged to have been taken in 1894 pursuant to Court Grant 92 and another $50 million for the 865 acres of land that is alleged to have been taken in 1942 for defence purposes pursuant to the Defence Emergency Regulations 1939/123 and legalised under the Samoa Lands for Defence Purposes Order 1945.
[39] What is difficult to understand from the plaintiffs statement of claim is that it is alleged that the 6,000 acres of land claimed by the plaintiffs was part of the 8,717 acres of land approved under Court Grant 92. But the land referred to in Court Grant 92 is described as "All that land situated in Mulifanua" and then its boundaries are set out. Mulifanua is a separate village from Satapuala, the village of the plaintiffs. On the face of the description given in Court Grant 92, the said land would be in the village of Mulifanua.
[40] The second difficulty is how did the plaintiffs come to the conclusion that of the 8,717 acres approved under Court Grant 92 approximately 6,000 acres had originally belonged to their village.
[41] The third difficulty is that the land that was approved under Court Grant 92 was given to Dr H. Shockfleth, Dr S.G. Bartlema and a third person. Whether it was these persons who took the land from its original owners does not appear from the statement of claim. What is plain and obvious is that the Government of Samoa and STEC were not in existence at that time so that they could not have been responsible for taking the land from its original owners. The Government of Samoa only came into existence under the Constitution which came into force on 1 January 1962. STEC only came into existence on 1 April 1957 under Part III of the Samoa Amendment (No.2) Act 1956 which established the Western Samoa Estates Corporation to succeed the New Zealand Reparation Estates (NZRE). The Western Samoa Trust Estates Corporation was then continued under the Western Samoa Trust Estates Corporation Ordinance 1961 and the Western Samoa Trust Estates Corporation Act 1977. The word "Western" was dropped from its name when the official name of the country was changed from "Western Samoa" to "Samoa".
[42] In respect of the 865 acres of land taken for defence purposes in 1942 by the New Zealand Administration, the plaintiffs do acknowledge in their statement of claim that a total of about 1070 acres of land at Magia, Tuavao-uta and Tafuaupolu was given to their village for the land that was taken in 1942 for defence purposes. Those lands were declared to be "customary lands" by Order of the "Supreme Court of Samoa" (High Court) in 1950. As "customary lands", those lands must now belong to the plaintiffs as the Alii and Faipule of Satapuala even though they still appear on the land register under the name of the Government of Samoa. Perhaps the correct expression used in the High Court decision in 1950 was either "Native land" or "Samoan land" because the expression "customary land" only came into use under the Constitution: see Toluono Feti et al v O.F. Nelson Co Ltd [2008] WSSC 19. The said lands are also occupied or used by the people of Satapuala, not the Government or the STEC.
[43] So what more compensation is required by the plaintiffs for the land that was taken for defence purposes in 1942? The land register can be rectified.
(c) Negligence
[44] In respect of the plaintiffs’ cause of action in negligence, the plaintiffs allege that the Government of Samoa and the STEC owed a duty of care to the plaintiffs to ensure that their rights to customary lands were protected. Particulars are then set out of how the Government and the STEC failed in the exercise of their duty of care to the plaintiffs.
[45] I must say that it is impossible to see how the Government of Samoa and the STEC could have owed a duty of care to the plaintiffs or their forefathers. The lands that were taken in 1894 pursuant to Court Grant 92 were taken whilst Samoa was a protectorate under a German Administration. The lands were not taken by the Government of Samoa which only came into existence on 1 January 1962 or by the STEC which only came into existence on 1 April 1957 under Part III of the Samoa Amendment (No.2) Act 1956 which established the Western Samoa Trust Estates Corporation.
[46] For the purposes of the tort of negligence, a duty of care must be owed by one person to another person at the time of the commission of the tort. Neither the Government of Samoa nor the STEC was a "person" in 1894 as they were not in existence at the time. So they could not have owed a duty of care at that time to the plaintiffs or their forefathers.
[47] Similarly, when the 865 acres were taken in 1942 by the New Zealand Administration for defence purposes, neither the Government of Samoa nor the STEC was in existence. So neither of them was responsible for the taking of lands for defence purposes alleged by the plaintiffs. Likewise, the Government of Samoa and the STEC could not have owed a duty of care to the plaintiffs or their forefathers in 1942 or even in 1945 after the state of emergency which existed due to the Second World War.
Discussion
(a) Fraud
[47] In order to gain a better understanding of the plaintiffs action or cause of action in fraud against the first defendant and the second defendant, I will refer briefly to the state of legal affairs in Samoa around 1894 which is the time alleged by the plaintiffs when about 6,000 acres of land were fraudulently taken from their village.
[48] Under Article IV of the Final Act of the Conference of Berlin on Samoan Affairs of 14 June 1889, a Land Commission was established to investigate and settle all claims by aliens to titles to land in Samoa. After the Land Commission had made its investigation of each claim by an alien, it submitted a report to the Chief Justice of the then Supreme Court which was established under Article III of the Final Act of the Conference of Berlin on Samoan Affairs on 14 June 1898. The Supreme Court would then decide whether to issue a Court Grant in respect of the land claimed to the alien who was the claimant.
[49] In the present case, I assume that Dr H. Shockfleth, Dr S. G Bartlema and the third person referred to in the statement of claim were the aliens who took the 8,717 acres of land mentioned by the plaintiffs. How those acres of land were taken by Dr H. Shockfleth, Dr S. G Bartlema and a third person from their previous owners is not shown in the statement of claim. So it is not shown whether the taking of the said lands by those people was fraudulent or not. It is also not shown when the said aliens took the said lands from their previous owners.
[50] It must then have happened that after taking the lands, the said aliens lodged a claim with the Land Commission to confirm their title to the lands. The Land Commission must then have investigated the claim and made a report to the Chief Justice of the Supreme Court. The Chief Justice then issued Court Grant 92 vesting the said lands in Dr H. Shockfleth, Dr S. G Bartlema and the third person referred to in the statement of claim.
[51] From the outcome of the process that must have been followed under the Final Act of the Conference of Berlin on Samoan Affairs 1889, one presumes that the Land Commission had approved the land claim by the said aliens and reported on it to the Supreme Court otherwise the Supreme Court would not have issued Court Grant 92 to the said aliens.
[52] So where was the fraud in the process that was followed? There is certainly no fraud shown in the statement of claim in relation to the actions that must have been taken pursuant to the Final Act of Berlin 1889 up to and including the time Court Grant 92 was issued by the Supreme Court.
[52] The plaintiffs then allege that of the 8,718 acres taken pursuant to Court Grant 92, 6,000 acres had belonged to the plaintiffs’ village. However, no fraud has been alleged against the decision of the Supreme Court which issued Court Grant 92.
[53] There is also no fraud alleged against the Cornwall Estates which appears from the statement of claim to have been the successor in title to the said lands after Dr H. Shockfleth, Dr S. G Bartlema and the third person referred to in the statement of claim.
[54] The next successor in title to the said lands, according to the plaintiffs’ statement of claim, was the New Zealand Reparation Estates (NZRE). If that is correct, then the NZRE only succeeded to the title to the said lands from Cornwall Estates. It did not take the lands from the village of the plaintiffs. It acquired the lands from the Cornwall Estates if what the plaintiffs are saying is correct. In fact, the NZRE was also not in existence in Samoa in 1894, the time which the plaintiffs allege that the said lands were fraudulently taken from their village.
[55] Similarly, the Government of Samoa which only came into being on 1 January 1962, was not in existence in 1894. So it could not have fraudulently taken the said lands comprising 6,000 acres from the village of Satapuala.
[56] Apart from a general allegation of fraud, the plaintiffs have also not pleaded any particulars of the fraud which they allege against the Government of Samoa and the STEC. In fact it is not possible to see how such particulars of fraud can be pleaded when the Government of Samoa and the STEC were not in existence at the material time.
[57] In relation to the alleged fraudulent taking of 865 acres of land from the village of the plaintiffs in 1942 by the New Zealand Administration for defence purposes, there is no dispute that that was the time of the Second World War. There is also no dispute that the New Zealand Administration had the power to take land for a public purpose, namely, defence purpose.
[58] The plaintiffs say the 865 acres of land were taken under the Defence Emergency Regulations 1939/123. If that is correct then the said land was taken pursuant to law. So that could not have been a fraudulent taking unless the Regulations were fraudulent or invalid which has not been shown by the plaintiffs. Put simply, the taking of land for a public purpose cannot be fraudulent if it was done according to law. It is very difficult to see how something could be fraudulent if it was done lawfully. In any event, no fraud has been shown in relation to the taking of the said land for defence purposes.
[59] Neither the Government of Samoa nor the STEC was also in existence in 1942. They could not, therefore, have been responsible for the taking of the said 865 acres.
[60] The pleadings in the statement of claim which allege that the Government of Samoa and the STEC fraudulently or dishonestly took lands from the plaintiffs’ village in 1894 and 1942 do not disclose a reasonable cause of action in fraud. They are, therefore, struck out.
(b) Compensation
[61] It seems that the plaintiffs claim for compensation for the 6,000 acres of land alleged to have been taken from their village in 1894 is inconsistent with what they say that the said land should be returned to them.
[62] In relation to the said 6,000 acres of land, there is nothing in the statement of claim which says that the plaintiffs village were not paid or compensated for those lands. As earlier mentioned, Court Grant 92 which was issued in the names of Dr H. Shockfleth, Dr S. G Bartlema and a third person must have been preceded by an investigation and report of the Land Commission established under the Final Act of the Conference of Berlin on Samoan Affairs 1889. Such an investigation must have extended to the validity of the claim made by the said aliens to the said land. The Land Commission then reported to the Chief Justice of the Supreme Court who decided to issue Court Grant 92.
[63] There is also no pleading in the statement of claim to show that the plaintiffs’ village could have made a claim for compensation against anyone who took the said lands in 1894. It has also not been shown whether if such a claim could have been made, it would still survive up to today.
[64] What the plaintiffs are relying on in their cause of action for compensation is Article 14 of the Constitution which provides that no property shall be taken compulsorily without adequate compensation. But there is nothing in Article 14 which says that it applies retrospectively to as far back as to what might have happened during German times.
[65] In relation to the 865 acres of land taken in 1942 for defence purposes, it is clear from the statement of claim itself that the New Zealand Administration had given a total of about 1070 acres of land to the plaintiffs village in exchange for the 865 acres of land that was taken for defence purposes. That 1070 and has been occupied and/or used by the people of Satapuala.
[66] Even though the lands which comprise the said 1070acres are still registered under the name of the Government of Samoa, they have been declared by the High Court in 1950 as "customary lands" according to the statement of claim. What is required now is to rectify the land register to show that those lands are no longer public land of which the Government of Samoa is the registered owner in order to comply with the High Court decision in 1950.
[67] I conclude that the statement of claim discloses no reasonable cause of action for compensation against both defendants.
(c) Negligence
[68] As earlier mentioned, for the purposes of the law of negligence, a duty of care must be owed by one person to another person at the time of the commission of the tort. But neither the Government of Samoa nor the STEC was in existence in 1894 when the said 6,000 acres were given pursuant to Court Grant 92 to Dr Shockfleth, Dr Bartlema and a third person.
[69] The same can be said in respect of the 865 acres taken in 1942 by the New Zealand Administration for defence purposes.
[70] Perhaps I should also point out that I am not here deciding that as a matter of public policy the Government of Samoa owes a duty of care to customary land owners to protect their rights to customary land.
[71] I therefore conclude that the statement of claim discloses no reasonable cause of action in negligence against both defendants.
Limitation
[72] Given the view which I have reached that the plaintiffs’ statement of claim does not disclose a reasonable cause of action in fraud or for compensation or in negligence, it is not necessary to deal with the question of limitation. However, as limitation is one of the issues which features prominently in the submissions of counsel for the first defendant and the second defendant, I will refer to it.
[73] It is not clear whether there was a statute of limitation or something akin to it which was in force in Samoa when Samoa was a German colony. Counsel also did not refer to such a statute of limitation.
[74] Under the Samoa Act 1921 which was a statute of the New Zealand Parliament, s.359 provided:
" Save so far as may be otherwise provided by regulation or ordinance, the law of Samoa as to prescription and the limitation of suits and actions shall be the same as that which is in force for the time being in New Zealand."
[75] It has not been possible to find out for certain, in the time I have to prepare this judgment, what was the law in force in New Zealand in 1921 with regard to limitation of suits and actions. However, there is reference in the First Schedule of the Limitation Act 1950(NZ) to the Limitation Act 1623 (UK) which was one of the United Kingdom enactments that used to apply to New Zealand but was repealed by the 1950 Act. I have not been able to find a copy of the Limitation Act 1623 (UK).
[76] The Limitation Act 1950(NZ) must have applied to Samoa by virtue of s.359 of the Samoa Act 1921. This must have been up to Independence Day as there is nothing to show that the 1950 Act ceased to apply to Samoa prior to Independence Day.
[77] By virtue of Article III of the Constitution which defines the terms "existing law" and "law" and Article 114 which provides for the continuation of the "existing law" on and after Independence Day, the Limitation Act 1950(NZ) must have continued to apply to Samoa on and after Independence Day. In fact under s.6 of the Reprint of Statutes Act 1972, the Limitation Act 1950(NZ) is specified as one of the remaining New Zealand statutes which continued to form part of the law of Samoa up to that time. It was not until our own Limitation Act 1975 was enacted that the application of the Limitation Act 1950(NZ) to Samoa was repealed.
[78] Now s.34 of the Limitation Act 1950(NZ), as far as relevant, provides:
" Nothing in this Act shall –
(a) Enable any action to be brought which was barred before the commencement of this Act by any enactment repealed or amended by this Act or ceasing to have effect by virtue of this Act, except in so far as the cause of action or right of action may be revived by any acknowledgement or part payment made in accordance with the provisions of this Act."
[79] Section 31 of our Limitation Act 1975 is in identical terms to s.34 the Limitation Act 1950(NZ).
[80] What this means is that if any action was barred before the commencement of the Limitation Act 1950(NZ) by any enactment repealed or amended by the 1950 Act or ceasing to have effect by virtue of the 1950 Act, then such an action cannot be brought again. However, the cause of action or right of action may be revived by an acknowledgement or part payment made in accordance with the provisions of the Act. In such case, the action can be brought again in terms of the provisions of the Act.
[81] It also follows that in terms of s.31 of the Limitation Act 1975, if an action was already barred under the provisions of its predecessor the Limitation Act 1950(NZ), then such an action cannot be brought again. However, such an action may be revived by an acknowledgement or part payment in terms of the 1975 Act.
[82] Because it is unknown at this point in time whether there was any law on limitation periods during the time Samoa was a protectorate under the German Administration, and because it is not clear what was the law on limitation periods from the time of the enactment of the Samoa Act 1921 to the time of the enactment of the Limitation Act 1950(NZ), I will consider the question of limitation in relation to the plaintiffs causes of action in fraud and negligence under the provisions of the 1950 Act.
[83] Under s.4(1)(a) of the 1950 Act, it is provided that an action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued. Negligence, of course, is a tort. In terms of the plaintiffs statement of claim, their causes of action in tort would have accrued in 1894 or thereabouts and in 1942 or 1945 or thereabouts. Those causes of action if they had survived up to the enactment of the 1950 Act which remained in force in Samoa up to 1975, would clearly be time barred by s.4(1)(a) of the 1950 Act.
[84] In terms of s.31 of the Limitation Act 1975, the plaintiffs would not be able now to bring an action in negligence because such an action would already be time barred under its predecessor the 1950 Act. No evidence was also provided by the plaintiffs to show that their had been any acknowledgement by any of the defendants so as to revive any of their causes of action in negligence. So those causes of action would continue to be time barred under the 1975 Act.
[85] In relation to the plaintiffs’ action in fraud, the difficulty with it, as earlier mentioned, is that it is not linked to any distinct cause of action. However, I did put to counsel for the plaintiffs that the alleged fraud seems to have the appearance of deceit and counsel seemed to agree. Assuming then that what is intended by the alleged fraud is deceit, then deceit is a tort: see for instance Derry v Peek (1889) 14 App Cas 337; The Law of Torts in New Zealand (1997) 2nd ed by Todd et al pp 823-831.
[86] In terms of s.4(1)(a) of the Limitation Act 1950(NZ), the limitation period for an action founded on tort is six years from the time the cause of action accrued. So if the plaintiffs causes of action in fraud (deceit) were still available up to the time the 1950 Act came into force, then those causes of action would clearly be time barred in terms of s.4(1)(a) of the 1950 Act which applied to Samoa from the time of its enactment up to 1975. The plaintiffs also did not provide any evidence of an acknowledgement by the defendants so as to revive their causes of action in fraud (deceit). Therefore, in terms of s.31 of the Limitation Act 1975, those causes of action continue to be barred.
[87] The plaintiffs claim for compensation is coupled with a claim for the return of the lands alleged to have been fraudulently or dishonestly taken from their village. On the basis of the pleadings in the statement of claim, the plaintiffs cannot have both. It would either have to be compensation or the return of the lands but not both.
[88] If it is the return of the lands that the plaintiffs really wish to claim, then, apart from the problem of their being no reasonable cause of action or right of action to support such a claim, they would be confronted with the provisions of the Limitation Act 1950(NZ) regarding limitations of actions to recover land. Section 7(2) of the Act provides:
" No action shall be brought by any other person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or to some person through whom he claims".
[89] The reason why s.7(2) is the relevant provision here is that nearly all of the land in question is registered under the name of the Samoa Trust Estates Corporation which is not the Government. The Court was also advised from the bar that only a small fraction of the land has been transferred to the Government but that land is the subject of separate proceedings which also involves the plaintiffs. It would be better to leave that portion of the land to those separate proceedings.
[90] If the real intention of the plaintiffs is to claim compensation, then the plaintiffs would have to demonstrate on what basis are they claiming compensation. If the basis on which compensation is claimed for the 6,000 acres alleged to have been taken in 1894 is fraud or deceit or some other related tort, then such a claim was barred under s.4(1)(a) of the Act if not before. Section 4(1)(a) provides a limitation period of six years for an action founded on tort and s.31 of the Limitation Act 1975 provides that an action already barred under a previous enactment would continue to be barred unless it has been revived. There is no evidence of a revival.
[91] In relation to the 865 acres of land alleged to have been taken in 1942 for defence purposes under the Defence Emergency Regulations 1939/123, it is clear that that land had already been compensated by an exchange of about 1070 acres.
[92] However, I need to refer to the question about the period of time for claiming compensation for land taken for a public purpose. Under s.271(2) of the Samoa Act 1921, all persons having any right, title, estate or interest in any land taken for a public purpose is entitled to compensation. However, the Samoa Act 1921 did not specify a time period for claiming compensation.
[93] Section 271(1) of the Samoa Act 1921 provides that land may by "Ordinance" be taken for a public purpose. If there was a time period for claiming compensation for land taken for a public purpose, one would, perhaps, expect to find such a time period in the Ordinance pursuant to which the land was taken for a public purpose. In relation to the 865 acres taken for defence purposes in 1942, the relevant Ordinance would be a New Zealand Ordinance. However, time has not permitted this Court to find that New Zealand Ordinance and when it was made.
[94] Section 27(1) of the Taking of Land Act 1964 which was cited by Mr Kerslake for the second defendant provides:
" 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 of 5 years after the date of the Act or Proclamation taking the lands, or (in respect of any damage done) after a period of 12 months after the execution of the purpose out of which the claim has arisen or may hereafter arise".
[95] The term "Act" is defined in s.2 of the Act to include an Ordinance. As s.271(1) of the Samoa Act 1921 contemplates the taking of land by Ordinance for a public purpose, one would think that the Defence Emergency Regulations 1939/123 were made pursuant to an Ordinance which authorised the taking of land for the public purpose of defence. If that be correct, then in terms of s.27(1) of the Taking of Land Act 1964, the time period during which the plaintiffs should have brought their claim for compensation for the 865 acres was 5 years after the date of Ordinance which would be a New Zealand Ordinance. However, as there is some uncertainty about the matter and I have not been able to find such an Ordinance in the time available, I will not come to a definite conclusion on it.
[96] What can be safely assumed is that if the said 865 acres were taken by Ordinance or by Proclamation in 1942, five years must have expired from the date of such Ordinance or Proclamation. It follows that the plaintiffs claim for compensation would now be barred under s.27(1) of the Taking of Land Act 1964. It may be that the plaintiffs had not claimed compensation earlier on, because their village had actually been compensated with 1,070 acres by the New Zealand Administration.
[97] During the hearing of these proceedings, I raised with counsel for the plaintiffs for her consideration the question of the validity of the STEC’s title to the lands in question as those lands are registered under the name of STEC and occupied by it. The small fraction of the said lands which has been transferred to the Government of Samoa is the subject of different proceedings which also involve the plaintiffs and would be better left to those separate proceedings. I indicated no view about the success or otherwise of the plaintiffs claim on the validity or otherwise of the STEC’s title to the said lands. Counsel for the plaintiffs appeared to accept amending the statement of claim in respect of the STEC.
[98] After careful consideration, I have decided on the side of caution to give the plaintiffs another chance to amend their statement of claim to disclose a reasonable cause of action against the first defendant, but subject to the payment of costs to the first defendant. The first defendant may move again to strike out.
Decision
[99] (a) The statement of claim by the plaintiffs insofar as it relates to the first defendant is not to be struck out at this stage, but leave is granted to the plaintiffs to file and serve an amended statement of claim to disclose a reasonable cause of action in seven (7) days. This is subject to the plaintiffs paying to the first defendant costs in the sum of $750 tala. The first defendant may move again to strike out.
(b) The statement of claim by the plaintiffs insofar as it relates to the second defendant is struck out as it discloses no reasonable cause of action. Costs to follow the event. The second defendant to file submissions as to costs in seven (7) days.
CHIEF JUSTICE
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