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Amoa v Land and Titles Court [2011] WSSC 77 (31 January 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINU'U

BETWEEN:

TIOTIONU'UESE ATONIO AMOA, PAULI DR. JEROME AMOA
and others of Togafu'afu'a and Samusu.
Applicants

AND:

LANDS & TITLES COURT
a Court established pursuant to the Land & Titles Act 1981.
Respondent

Counsel: F Amoa for Applicants
L Vili and M T Lui for Respondent

Hearing: 18 January 2011
Judgment: 31 January 2011

JUDGMENT BY SAPOLU CJ

Introduction

1. The Applicants in the present proceedings were one of the parties to proceedings before the Land and Titles Court regarding the pule (authority) of the title Amoa in the village of Samusu, Aleipata. Those proceedings were first heard before the trial division of the Land and Titles Court ("the Court of First Instance") in 1994. The parties to those proceedings included seven Itu Tagi of which the present Applicants were the Itu Tagi 2 and two Itu Tetee. On 21 November 1994, the Court of First Instance delivered its decision which held that:
   

"1. The pule (authority) to appoint a holder of the title Amoa in Samusu is vested with the heirs of Atonio or Amoa Atonio which includes the Itu Tagi 1, the heirs of Tiotionuuese or Amoa Tiotionuuese which includes the Itu Tagi 2, and the heirs of Mua which includes the Itu Tagi 6.

"2. The opinion of the Itu Tagi 3 regarding the pule of the heirs of Amoa Fili, the opinion of the Itu Tagi 4 that they are some of the heirs of Tiotionuuese, the opinion of the Itu Tagi 5 regarding the pule by the title Tufaagutu and the heirs of Amoa Fili, the opinion of the Itu Tagi 7 that it was because of the Alii and Faipule of Samusu that the title Amoa came into being, and the opinion of the Itu Tetee 1 that they are the heirs of Amoa Sione, are rejected.

"3. The Court accepts the opinion of the Itu Tetee 2 that the heirs of the title Amoa hold the pule of the title Amoa of Samusu.

"4. The attempt to appoint Tone Ponefasio, Sione Tamiano and Taua'a Makiasi to the title Amoa is rejected".

2. In terms of the above decision, the Applicants who were the Itu Tagi 2 are included amongst the parties vested with the pule of the title Amoa.
   
3. In the detailed reasons given for its decision which comprise some fifteen pages, the Court of First Instance noted the complexity of this case. It said that the inconsistencies in the genealogies, the conflicts in the evidence, and the discrepancies in the opinions regarding the origin of the title Amoa, presented by the parties were very complicated indeed.
   
4. Four of the parties to the 1994 proceedings, including the present applicants, lodged appeals against the decision of the Court of First Instance. Those appeals were head by the appellate division of the Land and Titles Court ("the Respondent") on 1, 2 November 2005. In its twenty-one page decision delivered on 9 December 2005, the Respondent noted the complexity of the case and held:
   

"1. The evidence presented by the parties is not sufficient to confirm the original (or true) heirs of the title Amoa of Samusu.

"2. The pule to appoint a holder or holders of the title Amoa of Samusu is vested with the first appellant, the second appellant, the third appellant, the fourth appellant, the first respondent and the second respondent, and that is also the Aiga Potopoto.

"3. The appointments of Tone Ponefasio, Sione Tamiano and Taua'a Makiasi to the title Amoa are cancelled"

5. In terms of the Respondent's decision, the Applicants being the second appellant to that decision are again included in the parties with whom the pule of the title Amoa of Samusu is vested and which form the Aiga Potopoto of the title Amoa.
   
6. On 15 July 2010, the Applicants filed with this Court a motion for judicial review with a supporting affidavit against the Respondent's decision. In the motion, the Applicants seek an order for certiorari to quash the second part of the Respondent's decision granting the pule of the title Amoa to the "Aiga Potopoto"
   
7. The grounds is support of the motion for judicial review allege that:
   
   • (a) the Respondent erred in law in holding that the pule to appoint a holder or holders of the title Amoa is vested in the first appellant, the second appellant, the third appellant, the fourth appellant, the first respondent, and the second respondent as that is not supported by the evidence;
     
   • (b) the Respondent's decision is irrational, in the sense of being unreasonable, in holding that all the parties (except the third respondent which made no appearance) constitute the Aiga Potopoto which holds the pule of the title Amoa, and;
     
   • (c) the Respondent did not take into account relevant considerations but took into account irrelevant considerations.
     
8. In terms of Part XIX of the Supreme Court (Civil Procedure) Rules 1980 certiorari is an extraordinary remedy and in terms of r. 196 a motion for an extraordinary remedy shall be accompanied by a statement of claim. Pursuant to r196, the Applicants also filed a statement of claim on 15 July 2010 accompanying their motion for judicial review filed on the same date.
   
9. The Applicants statement of claim pleads three causes of acting against the Respondent. The first cause of action is for breach of the right to a fair trial provided under Article 9 (1) of the Constitution. In so far as relevant, the Applicants allege that the issue of pule of the title Amoa is a fundamental right and that fundamental right had been breached by the Land and Titles Court in its decisions in 1994 and 2005. The reasons pleaded by the Applicants in support of that allegation are: (a) the composition of the Aiga Potopoto of the title Amoa decided by the Respondent in its 2005 decision was not in accordance with the evidence and inconsistent with it, and (b) the Applicants provided the only credible genealogy as stated in para 9 (o) of the Respondent's decision in 2005. The second cause of action is that the Respondents said decision was manifestly against the weight of the evidence adduced at the hearing of the appeals. The third cause of action relates to the manner in which the proceedings were conducted by the Respondent and the absence of any discussion in the Respondent's decision of the first respondent and the second respondent except to include them in the Aiga Potopoto which is vested with the pule of the title Amoa. The reasons given in support of this cause of action are: (a) there is no discussion n the Respondent's decision of the first respondent or second respondent to the appeal proceedings, (b) there was no genealogy or evidence presented by the second respondent at the appeal proceedings, (c) the genealogy and affect by the second respondent is not discussed in the respondent's decision, (d) the first respondent was treated differently to the other parties whose genealogies are extensively examined and discussed in the Respondent's decision and (e) the second respondent was not part of the appeal proceedings and therefore would not have been included in the Aiga Potopoto of the title Amoa. The Applicants in their statement of claim then seek an order for certiorari to quash the Respondent's decision.
   
10. By motion filed on 10 September 2010, the Respondent sought to strike the Applicants motion for judicial review in whole or in part and to strike out the accompanying statement of claim.
    
11. The grounds in support of the Respondent's motion to strike out the Applicants motion for judicial review are: (a) no notice was served by the Applicants on the Respondent pursuant to s.21 of the limitation Act 1975, (b) in the alternative, the inordinate delay in bringing the proceedings for judicial review, (c) the motion for judicial review is an abuse of process for the reasons stated, and (d) the Applicants grounds in support of their motion for judicial review do not show, or sufficiently show, how or why the Respondent erred in law, how or why the Respondent's decision is irrational, or how the Respondent did not take into account relevant considerations but took into account irrelevant considerations.
    
12. The grounds in support of the Respondent's motion to strike out the Applicants statement of claim are: (a) the statement of claim discloses no reasonable cause of action, and (b) the statement of claim is an abuse of process.
    
13. I will deal first with the grounds in support of that part of the Respondent's motion to strike out the Applicants motion for judicial review and then with that part of the Respondent's motion to strike out the Applicants statement of claim.
    

Motion for Judicial Review

(a) Section 21 of the Limitation Act 1975

14. It was submitted by counsel for the Respondent that as the word "action" is defined in s.2 of the Limitation Act 1975 to mean any proceeding in a Court of law other than a criminal proceeding, a motion for judicial review would be an action in terms of that definition. Consequently, as the Applicants have not given any notice in writing to the Respondent as required under s. 21 (1) (a) of the Act, they should be barred from proceedings with their motion for judicial review.
    
15. Section 21 (1) of the Act, in so far as relevant, provides:
    

"(1) No action shall be brought against any person (including the Government) for any act done in pursuance or execution or intended execution of any Act of Parliament, or of any public duty or authority, or in respect of any neglect or default in the execution of any such Act, duty, or authority, unless –

"(a) Notice in writing giving reasonable information of the circumstances upon which the proposed action will be based and the name and address of the prospective plaintiff and his solicitor or agent (if any) in defendant as soon as practicable after the accrual of the cause of action; and

(b) The action is commenced before the expiration of one year from the date on which the cause of action accrued".

16. It is to be noted, as it was also recognised by counsel for the Respondent, that s.21 does not provide a limitation period for any action. The limitation periods for actions are provided in the other sections of the Limitation Act 1975. What s.21 (1) does is to require a prospective plaintiff to give the notice specified in s.21 (1) (a) to a prospective defendant in an action for any act done by a prospective defendant in pursuance or execution or intended execution of any Act of Parliament, or of any public duty or authority, or in respect of any neglect or default in the execution of any such Act.
    
17. I am of the clear view, that a motion for judicial review is not an action in terms of the Limitation Act 1975 notwithstanding the definition of "action" in s.2 of the Act so that s.21 which applies to an action would not apply to proceedings for judicial review. But before I come to the differences between an action and a motion for judicial review, I want to mention briefly two other reasons why s.21 does not apply to proceedings for judicial review, I want to mention briefly two other reasons why s.21 does not apply to proceedings for judicial review. Firstly, the terms "plaintiff", "defendant", and "cause of action" used in s.21 (1) are appropriate to proceedings by ordinary action in private law but are not appropriate to proceedings for judicial review in public law. Secondly, there is no limitation period provided in the Limitation Act 1975 for judicial review proceedings. There is no mention of proceedings for judicial review in the Act. The actions for which limitation periods are provided in the Act do not include a motion for judicial review. In other words, the Limitation Act 1975 does not apply to proceedings for judicial review. The non-application of a limitation statute to proceedings for judicial review is reflected in the following passage from Hauraki Catchment Board v Andrews [1987] NZCA 267; [1987] 1 NZLR 445 at 448 where Cooke P said:
    

"By contrast with the position in England where judicial review has prima facie to be applied for within three months and leave is required (see O'Reilly v Mackman [1983] UKHL 1; [1983] 2 AC 237, 281), the Judicature Amendment Act 1972 in New Zealand imposes no such restrictions. Delay is left to be dealt with in the discretion of the Court according to the facts of each case...

Two decisions of this Court are in point. In Turner v Allison [1971] NZLR 833, a delay of nearly a year in challenging a decision authorising the building of a supermarket was found fatal, despite the decision of the Judge at first instance to grant certiorari. In West Coast Province of Federated Farmers Inc v Birch (CA 25/82, 16 December 1982) rather more than six months was found a fatal delay in challenging a mining licence, the licensee having incurred expenditure in the meantime"

18. The Judicature Amendment Act 1972 (NZ) mentioned in Hauraki Catchment Board v Andrews deals with judicial review and its remedies. The New Zealand Limitation Act 1950 deals with limitation periods for actions.
    
19. In Fraser v Robinson [1991] 3 NZLR 257 at 260 Cooke P in delivering the judgment of the New Zealand Court of Appeal again said:
    

"In New Zealand the judicial review jurisdiction under the Judicature Amendment Act 1972, Part 1, is discretionary...Further, there are no time limits on applications under the New Zealand Act. This contrasts with the position in England, where there is a requirement of leave and a prima facie time limit of three months: see Wade, Administrative Law (6th ed, 1988) at pp 671 – 676. The absence of any rigid time limit for invoking the jurisdiction in this country is salutary, but it is a position that could not sensibly be maintained unless the Court continues to insist on reasonable promptness in all the circumstances of the particular case and declines to entertain truly stale claims".

20. In 4 Halsbury's Laws of England, vol 28, para 620, fn 9, it is there stated:
    

"It seems that the Limitation Act 1939 does not apply to an application for a prerogative order of mandamus, certiorari or prohibition".

21. Counsel for the Applicants and for the Respondent are also well aware that proceedings by way of ordinary action are different from proceedings for judicial review. The two proceedings differ, inter alia, in terms of how they are instituted and the remedies available in each set of proceedings. An action is instituted by filing a statement of claim: r.13 of the Supreme Court (Civil Procedure) Rules 1980. Proceedings for judicial review are instituted by filing a motion seeking an extraordinary remedy: Part XVIII and Part XIX of the Supreme Court (Civil Procedures) Rules 1980. The remedy that is available and is commonly sought in proceedings by way of action is damages whereas the remedies that are available and are commonly sought in judicial review proceedings are certiorari, prohibition, or mandamus. An injunction or declaration is available in both types of proceedings. The two proceedings also differ in the kinds of subject – matter that they deal with.
    
22. Some of the differences between proceedings by way of action and proceedings for judicial review are noted in an article entitled Time Limitations on Applications for Judicial Review [2004] Fed L Rev 2 by E Campbell and M Groves where the learned authors state:
    

"Proceedings by ordinary civil action have, historically differed from proceedings for judicial review in several ways. They could be commenced without the Court's leave. The time limits created under the statute of limitations were much longer than the time limit applicable in judicial review proceedings. The procedures governing the conduct of judicial review proceedings were designed to produce much speedier determination of those proceedings than ordinary civil action".

23. From the foregoing discussion, I conclude that it terms of the Limitation Act 1975, an action, as defined in s.2 of the Act, does not include proceedings for judicial review. Consequently, the Act which applies to actions provided therein does not apply to proceedings for judicial review.
    

(b) Delay

24. As already pointed out, the Respondent delivered its decision on 9 December 2005. The Applicants did not file their motion for judicial review until 15 July 2010. This was about five years and seven months after the Respondent's decision. Counsel for the Respondent submitted that because of that delay the motion for judicial review should be struck out.
    
25. As with the jurisdiction to strike out a statement of claim for disclosing no reasonable cause of action, the jurisdiction to strike out proceedings for judicial review is to be sparingly exercised and it is only to be exercised where it is plain and obvious that such proceedings are so clearly untenable that they cannot possibly succeed. In other words, the strike out principles also apply to a motion to strike out judicial review proceedings: Southern Ocean Trawlers Ltd v Director-General of Agriculture and Fisheries [1993] 2 NZLR 53: BAST New Zealand Ltd v Commissioner of Inland Revenue [1994] 1 NZLR 172, 175; Air New Zealand Ltd v Wellington International Airport Ltd [2008] NZHC 570, para 18.
    
26. Remedies for judicial review are discretionary. Delay is a factor which the Court may take into account in the exercise of its discretion whether to grant or refuse a remedy. It depends on the facts of each case. An important consideration in the exercise of the Court's discretion where delay is an issue is prejudice. This may be prejudice to the Respondent or prejudice to third parties. In Constitutional and Administrative Law in New Zealand (2001) 2nd ed by PA Joseph, the learned author states in para 25.4.1. at p.974:
    

"Delay in and of itself need not be fatal. The Courts have held that relief should not be refused where delay occasions no prejudice or loss to the respondent, or where there is mere delay without complicating factors...The Courts will usually refuse relief where the respondent or some third party relies, to their detriment, on the applicant's inaction. By the time the objector had issued proceedings in Turner v Allison [1971] NZLR 833, the respondents had entered into contracts with architects, surveyors and builders. Where the case came to trial 9 months later, the construction of the mall was virtually complete. Where the applicant's inaction causes prejudice or loss, the period of delay need not be great. In West Coast Province of Federated Farmers Inc v Birch (16/12/83, CA 25/82 for Cooke, Somers and Casey JJ), a delay of only 6 months was fatal in an application to challenge a mining licence, as the licensee had incurred additional expenditure in the interim".

27. If in strike out proceedings it is plain and obvious from the material placed before the Court that the Court in the exercise of its discretion will not grant a remedy in judicial review proceedings, then it will be pointless to continue such proceedings. The proceedings should be struck out. It follows that if it is plain and clear from a motion to strike out proceedings for judicial review that the Court in the exercise of its discretion will not grant a remedy because of delay, then it will be pointless to continue the proceedings for judicial review. The proceedings should be struck out.
    
28. It would also appear that where delay in bringing proceedings for judicial review amounts to abuse of process, such proceedings may be struck out or stayed regardless of whether there is prejudice to the respondent or third parties: Fraser v Robertson [1991] 1 NZLR 257. What is at stake here is the protection of the process of the Court from being abused.
    
29. Counsel for the Respondent submitted that the delay in the Applicants bringing proceedings for judicial review will prejudice the Respondent. However, it was not explained how the Respondent will be prejudiced. It also not appear whether the delay will prejudice third parties, namely, the other parties to the proceedings before the Respondent in 2005 and who are included in the Aiga Potopoto vested with the pule of the title Amoa in terms of the Respondent's decision of 9 December 2005. Those other parties to the 2005 proceedings have not been cited as parties to the present proceedings for judicial review but they have a real interest in the outcome of the present proceedings. It does not appear whether any of them will be prejudiced by the delay in bringing these proceedings for judicial review.
    
30. It was also not argued on behalf of the Respondent whether the delay of about five years and seven months in bringing the proceedings for judicial review amounts, in the circumstances, to abuse of process that will justify a stay of proceedings or the proceedings being struck out. In this connection, prejudice to the Respondent or third parties may not be necessary if it is clear that the delay amounts to an abuse of the Court's process.
    
31. As already pointed out, the principles for striking out also apply to proceedings for judicial review. The notable feature of those principles is that the strike out jurisdiction is to be sparingly exercised and it will not be exercised except where it is plain and obvious that the proceedings which are the subject of a strike out motion are so clearly untenable that they cannot possibly succeed. The right of access to a Court is not be lightly denied to a litigant. That right is embodied in Article 9 (1) of the Constitution: Samoa Party v Attorney General [2009] WSSC 23, paras 52 and 53. Based on the material before the Court, I am not prepared to strike out the motion for judicial review on the ground of delay.
    

(c) Frivolous, vexatious and abuse of process

32. It was submitted for the Respondent that the jurisdiction of the Supreme Court to review decisions of the Land and Titles Court is restricted to breaches of the fundamental rights provisions in Part II of the Constitution. Because the Applicants motion seeks review of the Respondent's decision on the common law grounds of error of law, irrationality, and illegality, and not for any breach of the fundamental rights provisions in Part II of the Constitution, the motion is frivolous, vexatious, and an abuse of process. It is clearly implicit in the submissions by counsel for the Respondent that the Supreme Court does not have general supervisory jurisdiction over decisions of the Land and Titles Court.
    
33. In the cases where this Court has had to review decisions of the Land and Titles Court, review has been restricted to alleged breaches of the fundamental rights provisions in Part II of the Constitution. Even though there may have been some suggestion that this Court may have jurisdiction to review decisions of the Land and Titles Court generally, the approach to that question has been one of restraint and circumspection because of the public importance of the question and the fact that it has never really been argued in a case.
    
34. In consequence, the present position is that the jurisdiction of the Supreme Court to review decisions of the Land and Titles Court for breaches of the fundamental rights provisions in Part II of the Constitution is well established. But there has been no definitive judicial pronouncement whether the Supreme Court does, or does not, have jurisdiction to review decisions of the Land and Titles Court generally. I am therefore not satisfied on the submissions before the Court that the Applicants motion for review is frivolous, vexatious, or an abuse of process.
    
35. The case often cited for the jurisdiction of the Supreme Court to review decisions of the Land and Titles Court where alleged breaches of the fundamental rights provisions of the Constitution have been raised is Aloimaina Ulisese v Land and Titles Court (1998) (unreported judgment, Supreme Court of Samoa, 4 November 1998). In that case, Young J said:
    

"The Supreme Court can review decisions of the Land and Titles Court where it is established that the Land and Titles Court has breached Part II of the Constitution fundamental rights of a litigant".

36. The jurisdiction of the Supreme Court to review decisions of the Land and Titles Court for alleged breaches of the fundamental rights provisions in Part II of the Constitution has been invoked and applied in a number of subsequent cases, for example, Asiata Peniamina v Land and Titles Court [2004] WSSC 12 and Toailoa v Land and Titles Court [2004] WSSC 33 which were cited by counsel for the Respondent. I am conscious of the public importance of the question of whether the Supreme Court should have jurisdiction to review decisions of the Land and Titles Court generally and the opposing views expressed on that question in the past. I am of the view that a motion to strike out is not the appropriate proceeding to deal with such an important question in the absence of full arguments from counsel on both sides.
    
37. It is true, as submitted by counsel for the Respondent, that the Applicants have not pleaded in their motion for judicial review a breach of any of the fundamental rights provision of the Constitution but I do not consider that to be fatal at this stage. The jurisdiction to strike out is to be sparingly exercised and will only be exercised in a plain and obvious case where the proceedings to be struck out are so clearly hopeless and without substance and cannot be cured by any amendment. The right of access to a Court which is embodied in Article 9 (1) of the Constitution is not to be lightly denied to a litigant.
    
38. For the purposes of the Respondent's strike out motion, I would have to assume, without deciding, that the Supreme Court has supervisory jurisdiction to review decisions of the Land and Titles Court generally. It was submitted for the Respondent that if the Supreme Court has jurisdiction to review decisions of the Land and Titles on the common law grounds of illegality, procedural impropriety, and irrationality, then the grounds for review stated in the Applicants motion are only bare grounds without sufficient particulars to demonstrate what they are really about. The Applicants motion for judicial review should therefore be struck out.
    
39. The grounds of the Applicants motion for review are error of law, irrationality, and illegality. I accept that a party seeking judicial review must provide sufficient particulars of his grounds for review to fairly inform the other party of the true nature of those grounds so that the other party will be in a position to provide a proper reply. However, I do not consider that the lack of sufficient particulars for the grounds of the Applicants motion for review would justify striking out the motion at this stage. The jurisdiction to strike out must be sparingly exercised and it will only be exercised in a plain and obvious case where the grounds for review are so clearly untenable that they cannot possibly succeed. At this stage of proceedings it is not plain and obvious that the Applicants ground for review are so clearly untenable and cannot possibly succeed, the Applicants should be required to provide full and better particulars of their grounds for review. If after that is done it becomes plain and obvious that the Applicants grounds for review are so clearly untenable that they cannot possibly succeed, then the Respondent may move again to strike out. However, if the Applicants do not provide any further and better particulars then it may be arguable that the grounds for review are an abuse of process.
    
40. I have therefore decided not to strike out the motion for judicial review but direct the Applicants to provide full and better particulars of the grounds of their motion. If after that is done it becomes necessary for the Respondent to move again to strike out, then that may be done, but at least at that time we should have a clear picture of what is involved in the Applicants grounds for review.
    

Statement of claim

41. In terms of r.196 (1) of the Supreme Court (Civil Procedure) Rules 1980, every motion for an extraordinary remedy, which includes certiorari, shall be accompanied by a statement of claim. In compliance with r.196 (1), the Applicants filed a statement of claim together with their motion for judicial review. The remedy sought in the statement of claim is certiorari to quash the Respondent's decision of 9 December 2005. Certiorari is a public law remedy to be sought by way of motion rather than by way of a statement of claim. Counsel for the Applicants told the Court that he had to file a statement of claim because of the requirements of r.196 (1) but the real purpose of the statement of claim that has been filed is to support the Applicants motion for judicial review.
    
42. Counsel for the Respondent have moved to strike out the statement of claim on the grounds that: (a) the statement of claim discloses no reasonable cause action, and (b) the statement of claim is an abuse of process.
    

(a) First cause of action

43. The first cause of action pleaded by the Applicants in their statement of claim is breach of the right to a fair trial provided in Article 9 (1) of the Constitution. It is alleged that the pule of the title Amoa is a fundamental right and the Respondent's determination as to the composition of the Aiga Potopoto to hold the pule of the title Amoa in Samusu was not supported by the evidence. In other words, the complaint by the Applicants in their first cause of action is directed at the outcome of the trial rather than at the manner in which the trial was held. With respect, this ground does not constitute a cause of action in private law against the Respondent which is a Court.
    

(b) Second cause of action

44. The second cause of action which is founded on irrationality is that the decision by the Respondent was manifestly against the weight of the evidence. With respect, this again is not a ground for a cause of action in private law against the Respondent which is a Court.
    

(c) Third cause of action

45. The third cause of action is that there is no discussion of the first and second respondents in the Respondent's decision but those two parties have been included in the Aiga Potopoto which holds the pule of the title Amoa. Furthermore, the second respondent did not present any evidence or genealogy at the proceedings before the Respondent. Whilst t it arguable that this may be a ground for judicial review, it does not provide a ground for a private law cause of action against the Respondent.
    
46. The grounds for the causes of action pleaded in the Applicant's statement of claim do not constitute any tort against the Respondent.
    
47. In a number of past motions for judicial review, the requirement for an accompanying statement of claim provided in r.196 (1) has caused much difficulties to counsel seeking judicial review. This is because of the difficulty which often arises in identifying a private law cause of action in the context of public law to sustain a statement of claim. In consequence, this Court in proceedings for judicial review has on occasions struck out a statement of claim for disclosing no reasonable cause of action without striking out the motion for judicial review. Part of the reason for this is that whilst r.196 (1) requires that a motion for an extraordinary remedy shall be accompanied by a statement of claim, r.196 (1) does not say what consequences should follow if a statement of claim accompanying a motion for judicial review is struck out for disclosing no reasonable cause of action. The matter is in the discretion of the Court. In the present proceedings, I have decided to uphold the Respondent's motion to strike out the statement of claim as disclosing no reasonable cause of action but not the Respondent's motion for judicial review at this stage.
    

Conclusions

48. From the foregoing discussion, I have come to the following conclusions:
    

(1)

(a) The Applicants motion for judicial review is not struck out but the Applicants are ordered to file and serve by Monday, 14 February 2011 an amended motion for judicial review setting out with sufficient particulars the grounds of their motion as to fairly inform the Respondent of the nature of those grounds.

(b) The Applicants amended motion for judicial review is also to be served on all the parties who are included in the Aiga Potopoto of the title Amoa of Samusu in terms of the Respondents decision of 9 December 2005.

(c) Costs reserved.

(2) This matter will be re-mentioned on Tuesday 15 February 2011 at 9:30am.

(3) Leave is reserved to the Respondent to apply again to strike out should that be necessary after being served with the Applicants amended motion for judicial review.

(4) The Applicants statement of claim is struck out as disclosing no reasonable cause of action

(5) Costs reserved.

CHIEF JUSTICE