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Malifa v Attorney General [2017] WSSC 16 (17 March 2017)

IN THE SUPREME COURT OF SAMOA
Malifa v Attorney General [2017] WSSC 16

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER of the DECLARATORY JUDGMENTS ACT 1988, LAND AND TITLES ACT 1981 & INTERPRETATION ACT 2015

BETWEEN:

GATOAITELE SAVEA SANO MALIFA, of Afega,
Applicant

AND:

ATTORNEY GENERAL, of Samoa sued on behalf of the Registrar of Lands and Titles Court
Respondent

Counsels:
R V Papalii for Applicant
S Ainuu & E Soloi for the Respondent

Hearing: 19-20 January & 17 February 2017
Judgment: 17 March 2017

JUDGEMENT OF JUSTICE TUATAGALOA
(Application for Declaratory Orders)

The Background:

1. The Applicant was bestowed the title ‘Gatoaitele’ on 21 June 2014. On 28 September 2014 the title pursuant to section 23 of the Act was published for 3 months. The 3 months time frame is provided for by section 16 which expired on 27 December 2014. On 14 December 2014 an objection was lodged by Vaifaee Rowner Fiso Ajawas, Paoga Su’a Ropati and Rosuweti Galuvao. This objection was filed within time.
2. The title ‘Gatoaitele’ was not registered until 7April 2016 after mediation took place between the Applicant, his counsel and the Registrar of Land and Titles and counsel from Attorney General’s office.
3. The non-registration of the ‘Gatoaitele’ title was not because of the petition filed within time on 14 December 2014 (as that was thought to have been withdrawn and no longer existed) but was due to section 23(6) where the Registrar of Land and Titles Court (at the time) was not satisfied that the matters under section 23(5) as to whether the title ‘Gatoaitele’ belongs to the village of Afega in which the traditional bestowment was held or that the title bestowment was not in accordance with other customs and usages of the Samoan people.
4. The objection lodged on 14 December 2014 was thought to have been withdrawn in January 2015 but for some reason at the hearing of this application it was confirmed that it had not been formally withdrawn. The people who lodged this objection (in my view) were also under the same understanding that their petition of 14 December 2014 was withdrawn as they themselves lodged or filed another objection/petition (which is subject to these proceedings) on 8 August 2016. These people or objectors in their sworn affidavit dated 9 February 2017agreed to formally withdraw the objection they lodged in 2014.
5. After the ‘Gatoaitele’ title was registered on 7 April 2016, the following three petitions were filed:
   1. Petition by FataSaifoloi on behalf of Alii ma Faipule o Afega filed on 6 June 2016 and revised on 20 June 2016.
   2. Petition by Papaliitele Leiataualesa Pauli Lagolasi Faalataitaua filed 30 June 2016.
   3. Petition by Vaifaee Rowner Fiso Ajawas, Paoga Su’a Ropati and Rosuweti Galuvao filed on 8 August 2016.
6. The three petitions is the cause of the application for declaratory orders before the court that they are caught under section 23 and are therefore out of time. The application turns on the statutory interpretation of the provisions of the Lands and Titles Act 1981 specifically that of section 23, section 38, section 42 and section 43.

Proceedings:

7. The proceedings were commenced by the applicant/plaintiff filing a motion for declaratory orders accompanied by a statement of claim and affidavit.
8. The Application for Declaratory Orders (with amendments) seeks the following:
   1. Sections 38 & 42 of the Lands and Titles Act 1981 (“the Act”) do not allow a further window to object against the registration of matai titles once the 3 months time limitation expires (s.16);
   2. Part V of the Act is the governing provision for matai titles and section 23 specifically caters for the procedure to follow to registration of matai titles or objections against registration of matai titles.
   100. Petitions brought under section 38 is “subject to any express provision” of the Act and in the present case the petitions filed out of time objecting against the registration of the applicant’s matai title are subject to the express provisions of section 16 and section 23 of the Act.
   4. The petitions filed were outside of the 3 months time limitation but accepted by the Registrar to have been filed under section 38 and section 42 of the Act fall outside of the ordinary cases anticipated by the those sections. These petitions must be withdrawn or held invalid.
   5. The Registrar has implied powers under section 29(1)(e) Acts Interpretation Act 2015 to withdraw acceptance of a matter approved for filing albeit wrong in law.
9. The Statement of Claim brings a suit for misfeasance against the respondent in public office seeking damages in the amount of $300,000.

The Application to Strike out by the Respondents:

10. The Respondents response by filing an application to strike out the Applicant’s statement of claim on the following grounds:
    1. Failure to provide notice as required under s.21 of Limitation Act 1975; and
    2. Claim for misfeasance has no prospect of success as the claim fails to support the elements of this action as under the law of tort.
11. I will deal first with the application to strike out by the respondent.

Application to Strike-Out:

12. Counsel for the respondent did not pursue the notice under section 21 of the Limitation Act but only to the claim of public misfeasance. This is probably because there was notice by counsel for the applicant by way of letter dated 20 October 2016 notifying of their intention to file legal proceedings.
13. The only cause of action pleaded by the Applicant/plaintiff in the statement of claim is that of public misfeasance which they then claim damages to the amount of $300,000. The Respondent was correct in saying that the Applicant has not pleaded the grounds or the facts that would support a claim of public misfeasance. That is, the applicant has not pleaded the facts that would prove the element of ‘malice’ on the part of the respondent for public misfeasance.
14. Counsel for the Applicant conceded and told the court that the only reason why a statement of claim was filed was because of the requirement under Rule 196 where a motion seeking extraordinary remedies must be accompanied by a statement of claim and supporting affidavit.
15. It is clear from the Supreme Court (Civil Procedure) Rules 1981 that any civil proceeding before the Supreme Court can either be by way of action (r11) (which is always by filing statement of claim) or by way of motion (which usually to do with public law remedies which would include certiorari, declaration, mandamus or injunction). In the present matter an application for declaratory orders under the Declaratory Judgments Act 1988 does not have to be accompanied by a statement of claim.
16. An application for declaratory judgment where it is not seeking damages need, not file a statement of claim to accompany the filing of a motion for declaratory orders. In the present case, there was no need for a statement of claim as the real issue is statutory interpretation.
17. For the above reasons and concession by counsel for the applicant paragraph 32 of public misfeasance and damages (prayer (b)) relating to such a cause of action are struck out.

The Respondents submissions:

18. The Respondent submits the following in response to the application by the Applicant:
    1. The three petitions are filed pursuant to sections 38, 42 and 43 of the Land and Titles Act and are not filed as objection pursuant to section 23;
    2. The Registrar does not have the authority to withdraw or discontinue a petition under sections 38, 42 and 43;
    3. The petitioners’ right to be heard under Article 9 of the Constitution will be breached if the orders sought by the applicant are granted.
19. The Respondent further submitted that the grounds in the petitions do not all relate to the bestowment of the title but to other aspects of the title for example, as to whether the title is from Afega or not.

The Lands and Titles Act 1981

20. The preamble to the Act says what the legislation is about:

“AN ACT to consolidate and amend the law relating to customary land and titles, and to the Land and Titles Court.”

21. Part 3 deals with customary land; Part 4 deals with intention to appoint to a matai title; Part 5 deals with matai titles - bestowment, registration and deletion of matai titles from the register and Part 6 provides for the Lands and Titles Court.
22. The jurisdiction of the Lands and Titles Court (LTC) is provided for under Part 6 which is all matters pertaining to Samoan names and titles and to make orders or declarations in respect of Samoan names and titles and in all claims and disputes relating to customary land (section 34). Section 38 provides for the exercise of jurisdiction of LTC on the petition of any person claiming a bona fide interest, or on the petition of the Registrar. Section 38 says:

“38. Petitions for exercise of Court’s jurisdiction – Subject to any express provisions of this Act as to the making of applications or petitions, the jurisdiction of the Court in any matter may be exercised on the petition of any person claiming a bona fide interest, or on the petition of the Registrar.”

23. Section 42 provides the procedures of instituting proceedings in LTC which is by written notice which written notice must then be prepared as a petition in the required form and section 43 provides for proceedings in LTC shall commence on the filing of the petition.
24. Section 23 (Part 5) of the Act to do with bestowment and registration of new matai titles is summarized as follow:
    • Section 23(1): new appointee or holder of matai title shall within 7 days from traditional bestowment of title give notice to the Sui-ole-nuu (mayor) of the village title was bestowed;
    • Section 23(2): within 14 days of notification or otherwise of bestowment the Sui ole nuu (village mayor) must (a) ascertain whether the matai title bestowed belongs to that village; (b) provide the particulars of the traditional ceremony of the title bestowed including whether or not title belongs to the village in which it was bestowed in a form prescribed by the Registrar; (c) –(e) is to provide such information to the Registrar , the new appointee and retaining the book with such information;
    • Section 23(3): Registrar can by notice to the new appointee requisition for any further information the Registrar deems necessary;
    • Section 23(4): provides for the circumstances in which the Registrar will cause a notice to advertise the details of a matai title and the new appointee for 3 months.
    • Section 23(5): provides for the registration of matai title where no objections are lodged within 3 months and the Registrar is satisfied that title belongs to the village in which traditional bestowment ceremony was held and the appointment complies with other customs and usages of the Samoan people;
    • Section 23(6): where Registrar not satisfied as to matters specified in (5) notified the new appointee refusing to recognize the new appointee as the rightful holder of the title and does not register the title;
    • Section 23(7): the new appointee to petition the court within a month of receiving notice from Registrar in (6);
    • Section 23(8): provides for when objections are lodged.
    • Section 23(9): that only by order or direction of the Court that the title is registered in relation to (7) and (8);
    • Section 23(10): no objection shall be made or accepted by the Court regarding matai title confirmed by the Court under section 19.
25. Section 16 provides for time frame of notice for three months by which any objections against registration of matai title may be lodged under section 23(6).

Discussion:

26. The Applicant’s main contention is that the petitions filed are subject to section 23and are out of time. The Respondent’s argument is that the petitions filed are not filed as ‘objections’ pursuant to section 23 but are ‘petitions’ filed pursuant to sections 38, 42 and 43 and are therefore not caught by the notice period of three months under section 16 which applies to Part 4 and section 23 of Part 5.
27. Section 38 is very clear that the making of an application or petition by any bona fide person or by Registrar is ‘subject to any express provisions of the Act’. That is, the ‘right’ to file a petition must come from an express provision of the Act. For example of those ‘express provisions’ are section 9 (Part 3), section 16 (Part 4) and section 23 (Part 5). Sections 42 and 43 are simply procedural that LTC jurisdiction will be exercised by the filing of such petition.
28. The first question a person should ask is whether he has the’ right’ under the Act to bring proceedings? If there is a right, under Part 3, Part 4 or Part 5 then sections 42 and 43 say that the jurisdiction of the court can be exercised by the filing of a petition.
29. Sections 38, 42 and 43 are procedural provisions and do not create any right to institute proceedings. The ‘right’ to institute proceedings or to bring a petition is created under Part 3 (customary land), Part 4 (intention to appoint) and Part 5 (matai titles) of the Act.
30. The Respondent supported their argument by saying that the petitions filed were not all to do with the bestowment of the matai title ‘Gatoaitele’ of the applicant but also whether the matai title is from the village of Afega where it was bestowed, who the faapogai (authority by or on which title is bestowed) of the title, pule o le suafa (who has authority of the title) and that title was bestowed without the consent of the other heirs to the title. These matters the Respondent submits fall outside the parameters of section 23.
31. With all due respect to the Respondent and without usurping the authority of the Land and Titles Court these matters in my view fall within the parameters of section 23. The village mayor (Sui ole nuu) when completing the form for registration must first ascertained whether or not the title belongs to the village where title bestowment was conducted (section 23(2)(a)). Even if such form is completed, the Registrar can requisition for further information from the new appointee (section 23(3)). That is the Registrar could still ask the new appointee for those matters referred to by the Respondent under section 23(6) and can refuse to register the matai title if not satisfied that matters in section 23(5) have been complied with. These matters that the Registrar must be satisfied with under section 23(5) are (a) that the matai title belongs to the village in which the traditional bestowment was held and (b) the appointment complies with other “customs and usages” of the Samoan people. The “customs and usages” refer to is wide enough to include those matters referred to by the Respondent.
32. The Respondent also advanced the argument of a breach of the petitioners’ constitutional civil rights under Article 9 if the court rules for the Applicant as it will deny the petitioners right to be heard which is the ‘right of access to a Court’.^[1] I agree but Article 9 guarantees the right of access to a court and to a fair hearing where the person involved can demonstrate a civil right. Their Honors in Samoa Party v Attorney General^[2]at paragraph [24] said that the civil or personal right will depend on statute not constitutional law. That is, the civil right that is protected by Article 9 must come from a statute. The civil right of the petitioners to invoke Article 9 comes from Part 3, Part 4 and Part 5 (which includes section 23) of the Land and Titles Act 1981.
33. I do not have to deal with the issue of implied powers of the Registrar under the Acts Interpretation Act 2015 as I think I have dealt with the main issue of this application which that issue arises .

Conclusion:

34. The ‘right’ to institute proceedings or bring a petition must come from an express provision of the Act which express provision or provisions come from Part 3 (customary land), Part 4(intention to appoint) and Part 5 (matai titles) of the Land and Titles Act 1981..
35. Part 6 (ss. 38, 42 & 43) is administrative and procedure and do not create any rights to bring a petition before the Land and Titles Court.
36. The petitions filed which is the subject of the application for declaratory orders said to be filed pursuant to sections 38, 42 and 43 cannot be sustained.
37. The petitions filed are caught under section 23 and have been filed out of time pursuant to section 16.

JUSTICE TUATAGALOA

^[1] Sagato v Land and Titles Court [2011] WSSC 79 (24 June 2011)
^[2] [2010] WSCA 4 (7 May 2010)