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Fanolua v Land and Titles Court & Appellate Division of the Land and Titles Court [2019] WSSC 88 (8 November 2019)

IN THE SUPREME COURT OF SAMOA
Moananu Fanolua v Land and Titles Court & Appellate Division of the Land and Titles Court & Ors [2019] WSSC 88

THE SUPREME COURT OF SAMOA

HELD AT MULINUU

IN THE MATTER of an Application for Judicial Review and in relation to Article 9(1) of the Constitution and the Declaratory Judgments Act 1988.

BETWEEN:

MOANANU FANOLUA,

Applicant

AND:

THE LAND AND TITLES COURT under section 25 of the Land and Titles Act 1981 (“the Act”) and APPELLATE DIVISION OF THE LANDS AND TITLES COURT under section 76 of the Act.

First Respondents

AND:

TAIMALELAGI NAOTALA, TUPUIVAO NAOUPU, SINAPIOA JOYCE and TAIMALELAGI TIATIA

Second Respondents

Counsels: T Leavai for Applicant
T Peniamina & S Sapolu-Margraff for First Respondents
T Fagaloa for Second Respondents
Hearing: 16 August 2019
Judgment: 8 November 2019

JUDGEMENT OF JUSTICE TUATAGALOA
(Application to Strike – Out)

1. This judgment concerns the Motion to Strike Out by the First and Second Respondents of the Applicant’s Motion for Judicial Review filed on 29 June 2018.

Background to the Motion for Judicial Review.

2. The Applicant applies by way of Judicial Review for Court Orders to declare and quash the Lands and Titles Court decision LC 10876 P29-P30 (2016) and the Appellate of LTC (ADLTC) decision dated 3 March 2017.
3. The LTC decision (2016) orders the eviction of the Applicant, Moananu Fanolua, from land called Fogalefue belonging to the title Tupuivao whom the second respondents are descendants of.
4. The Applicant sought leave to appeal the LTC decision and ADLTC (2017) refused leave for the Applicant to appeal the LTC decision.
5. The matter arises in relation to two customary lands known as “Fogalefue” and “Faimata” at Fuailolo’o, Mulifanua. The two lands adjoin each other.
6. The LTC have already made the following decisions concerning the two lands:
   • (i) LC 7935 (1985) confirms (amongst others) that the land known as Fogalefue is owned (pule) by the title Tupuivao; and the title Moananu has authority over the land known as Faimata.
   • (ii) LC 10876 P1, P3 (16 June 2006) confirms the following:
     • (a) Parts of Fogalefue and Faimata were leased to the EFKS;
     • (b) Fogalefue of about 1 acre and Faimata about ¼ acre are leased to the EFKS.
7. The second respondents are descendants of the Tupuivao title and they petitioned the Court to have the land Fogalefue surveyed. There were two unsuccessful attempts to carry out a survey on the land as the first was blocked by the village and the second by the families of the applicant. The third attempt was successful and the Fogalefue land was surveyed in 2015 (Plan 11481). The survey was said to be based on the sketch plan done in 2006.
8. The survey plan 11481 has the house of the applicant located on Fogalefue land. As a result of the survey plan 11481 the second respondents petitioned LTC to confirm Plan 11481 and have the applicant evicted as he is living on Fogalefue land, not Faimata.
9. The Applicant by LTC decision LC 10876 P29-P30 (6 May 2016) was ordered to vacate and take down his buildings from the land as according to Plan 1181, the land he is occupying is part of Fogalefue, belonging to the Second Respondents who descend from the Tupuivao title.
10. The Applicant sought leave to appeal the 2016 decision but the ADLTC on 3 March 2017 refused the application for leave to appeal by the Applicant.
11. The Applicant then filed a Motion for Judicial Review and Stay of Execution of Proceedings on 29 June 2018. In response the First Respondents filed a Motion to Strike-Out dated 28 June 2018 accompanied by affidavits. The Second Respondents also filed a Motion to Strike–Out dated 23 January 2019 accompanied by affidavit.

The Grounds of the Strike Out.

12. The grounds of the strike out by the First and Second Respondents are basically the same as follows:
    • (i) The application for Judicial Review is frivolous, vexatious, abuse of court process and has no prospect of success. The Supreme Court has no jurisdiction over customary lands, names and titles relating to Samoan customs and usage;^[1]they are within the exclusive jurisdiction of LTC. The decisions of the LTC are final^[2] and are not reviewable^[3] by the Supreme Court.
    • (ii) An order to quash and/or declare void decisions of First Respondents would defeat the protections provided by the Act to the decisions of the LTC.
    • (iii) The issues raised by the Applicant are meritorious concerning the Samoan custom and usage which issues are outside the jurisdiction to review of the Supreme Court. The ground or grounds for judicial review would require the Court to look or consider the merits of the decisions of LTC and ADLTC.
    • (iv) There is no breach or violation of the right to a fair trial.^[4] The Applicant failed to articulate with clarity how the LTC decisions breached Article 9 on claims of impartiality. The Applicant was a party to both decisions dated 6 May 2016 and 3 March 2017. Therefore, the Applicant had access to Court and was given an opportunity to be fully heard. It is only in the breach of fundamental rights under the Constitution that the Supreme Court may invoke jurisdiction to review decisions of the LTC.

Applicant’s Response to Motion to Strike Out.

13. Counsel for the Applicant in both written and oral submissions highlighted the following:
    • (i) The Applicant’s right to a fair trial was breached in that the LTC did not act impartially when it heard the matter which resulted in its decision of 6 May 2016.The Applicant claims that while the opportunity to be heard was given, this right was not fully realized in that LTC of first instance did not give the Applicant the opportunity to be heard on the issue of providing their own survey plan or to be given the opportunity to provide their own survey plan as they have requested in order to provide the Court with evidence before a decision was made. The Applicant says that they have been requesting or written to the President and the Registrar of LTC to be allowed to carry out their survey and to provide the LTC with the survey plan for the LTC to decide upon in addition to the survey plan they already have of the Fogalefue land but were not given the opportunity.
    • (ii) The Applicant further claims that the Appellate Division of Lands and Titles Court (ADLTC) by declining their application for leave to appeal the LTC decision (6 May 2016) have failed to remedy the apparent breach of Article 9 by LTC and accordingly have also breached Article 9 itself.^[5]

Discussion.

14. The thrust of the Applicant’s complaint is levelled at the LTC decision LC 18076 P29-P30 of 6 May 2016 which was upheld when the Applicant’s application for leave to appeal was heard and refused on 3 March 2017 by the ADLTC.
15. The court’s jurisdiction regarding strike out application is well settled^[6]. I am however conscious that a litigant’s constitutional right of access to the court is not to be lightly denied unless his or her claim is so plainly untenable that it cannot possibly succeed and is doomed to fail.
16. The Supreme Court has jurisdiction to judicially review decisions of the Land and Titles Court but only where there has been a violation of the Applicants right to a fair trial under Article 9 of the Constitution^[7] or a breach of the Constitution. The right to a fair trial in Article 9 embodies the principles of natural justice or procedural fairness.^[8]
17. The rights under Article 9 are: (i) right of access to a Court; (ii) right to a fair trial within a reasonable time and (iii) right to be heard by a fair, impartial and independent Court^[9]. The First and Second Respondents submit that the Applicant has not been denied the right to court and to be heard within a reasonable time. They claim that the Applicant has had access to the LTC (first instance) and ADLTC when leave to appeal was heard and denied.
18. The Applicant contends that they should have been given the opportunity to carry out their survey of Faimata land which adjoins Fogalefue land on one side and which the boundaries of the two lands are at issue. The Applicant claims that not being given the opportunity to provide a survey plan amounts to a breach of their right to be heard on the issue of the boundaries between the two lands and this means that the LTC was not fair and impartial. This in my view amounts to procedural fairness.
19. The Court has jurisdiction to entertain the applicant’s motion for judicial review based on the principle of natural justice or procedural fairness which in my view is embodied in the right to a fair hearing pursuant to Article 9. But whether that motion will actually succeed depends on the outcome of the hearing when the Court hears further submissions and considers all the relevant circumstances. At this stage not all the relevant circumstances have been placed before the Court. Counsels would have to place before the Court affidavits from the surveyors that were involved in the surveying of the two lands Fogalefue and Faimata. There is also the letter from the former CEO of MNRE dated 5^th July 2016 in need of further clarification to the Court. In relation to plan

“..the Supreme Court has jurisdiction to determine whether a constitutional breach has been committed by any tribunal whether or not the primary legislation under which it operates contains an ouster provision; that art 4 of the Constitution overrides the ouster provisions of s 71 of the Land and Titles Act; and that in consequence the Supreme Court can determine whether there has been a breacthe Constitution by the LTC or ADLTC”.^[10]

Conclusion.

20. The Motion to Strike-Out is dismissed.
21. Costs are reserved until after the hearing of the application for judicial review.
    

JUSTICE TUATAGALOA

^[1] Land and Titles Act 1981, section 34
^[2] Land and Titles Act, section 70
^[3] Land and Titles Act 1981, section 71
^[4]Constitution, Article 9; see also Penaia II v Land and Titles Court [2012] WSCA 6 (31 May 2012).
^[5] Lautogia v Appellate Division of Land and Titles Court [2016] WSCA 13
^[6] See: Enosa v Samoa Observer Company Limited [2005] WSSC 6; AQM Ltd v Westfield Holdings Ltd [2009] WSSC 17
^[7]Penaia II v Land and Titles Court [2012] WSCA 6 (31 May 2012).
^[8] Principles of Judicial Review (1999) by de Smith, Woolf and Jowell; see also Pouniu v Land Titles Investigation Commission [2003] WSSC 5 (3March 2003)
^[9]Samoa Party v Attorney General [2009] WSSC 23 at p.11 (para. 52 & 53).
^[10]Lautogia v Appellate Division of Land and Titles Court [2016] WSCA 13; see further Penaia II d and Titles Cles Court;(at note [4] ) and Lavea v Kke [2015] WSCA 3.