Home | Databases | WorldLII | Search | Feedback Supreme Court of Samoa

Stowers v Attorney General [2020] WSSC 40 (20 July 2020)

IN THE SUPREME COURT OF SAMOA
Stowers v Attorney General [2020] WSSC 40

File No: Misc 36/18

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

IN THE MATTER: of an application for Judicial Review and for the enforcement of Constitutional rights pursuant to Article 4 of the Constitution of the Independent State of Samoa

BETWEEN:

FILIPINA TALALEU STOWERS, VERONICA STOWERS BARTLEY, SOPHIA STOWERS KHAN, PIO STOWERS, PETELO STOWERS & IVAN STOWERS

Applicants

AND:

THE ATTORNEY GENERAL named in respect of the Land Titles Investigation Commission.

Respondent

Counsel: I Tanielu for applicant
D Fong and T Peniamina for respondent

Decision: 27 July 2020

DECISION OF THE COURT

1. My apologies to the parties for the delay. I have finally been able to locate the Land Title Investigation Commission (“the Commission”) records in relation to this matter (Claim No.129) in particular the transcript of the relevant proceedings and the Commission’s decision dated 11 May 2017 (“the Decision”).
2. The land in issue comprises some 2½ acres situated at Vaimea in Apia long occupied by the Applicants and other members of the extended family. The latter group were Objectors to Claim No. 129 lodged by the Applicants with the Commission pursuant to s.18(1) of the Land Titles Investigation Act 1966 (“the Act”) to declare the lands freehold exclusively in their name.
3. Section 18(1) relevantly provides:
   • “18. Investigation and determination of claims – (1) The Commission:
   • (c) shall give public notice of all claims (hereinafter called the advertised claims) and of the fact that any person desiring to object to any claim shall, within a period of 6 months after the first publication of the public notice of that claim, give notice in writing of his or her objection and pay the prescribed fee to the Secretary and give a copy of that notice to the claimant; and .......
   • (f) may, after considering the written and oral evidence given and the submissions made by or on behalf of the claimant under an advertised claim, and the written and oral evidence given and the submissions made by or on behalf of each objector thereto who appears at the hearing, determine -
     • (i) that the land is customary, freehold or public land; and
     • (ii) that the claim has not been established to the satisfaction of the Commission and is therefore rejected; or
     • (iii) that the claimant shall have a grant of the estate or interest claimed by him or her in the land where the Commission determines that the land is freehold land in law or in equity, and that the claim has been established to the satisfaction of the Commission; or
     • (iv) that, despite anything to the contrary in the Lands, Surveys and Environment Act1989, the claimant shall have a grant of the estate or interest claimed by him or her in the land where the Commission determines that the land is public land in law, but that the claim has been established to the satisfaction of the Commission in equity.”
4. Claim 129 was lodged on 20 November 2013 and in accordance with s.18(1)(c) was duly advertised supposedly in the Savali newspaper of 05 March 2014. For reasons unknown the Claim was re-advertised in the Savali on 26 March 2014.
5. Pursuant to s.18(1)(c) six months is given for objections to claims. The Objectors maintain they were only aware of the second advertisement on 26 March hence why their notice of objection was lodged on 10 September 2014. This was some five days after expiry on 05 September 2014 of the first objection period but well before expiry of the second objection period on 26 September 2014.
6. The Applicants seem unaware of the second advertisement and they argue that because the objection was lodged out of time it should not have been considered by the Commission and in doing so the Commission has breached their Constitutional right to a fair trial under article 9(1). Further that the Decision is invalid on the grounds of illegality and procedural unfairness. The Applicants seek judicial review of the Decision and an order invalidating or rendering the Decision void ab initio.
7. In fact a written clarification dated 20 February 2017 from the Chief Executive Officer of the Ministry of Prime Minister and Cabinet (annexure ‘H’ to the affidavit of Ms. Felisita Heather, Secretary to the Commission) which oversees the Savali newspaper indicates that the second, third and fourth etc. pages of the 05 March 2014 Savali were misdated “05 March 2014” as the edition was actually published on 12 March 2014. Meaning that the Objectors notice of objection was in reality received by the Commission within the prescribed first six-month period. This would satisfy the requirements of s.18(1)(c) which refers to notices of objection being due six months “after the first publication” of the Claim.
8. It appears from the Decision that the Commission in any event after considering the matter exercised its powers under s.19 of the Act to accept the objection it being satisfied that the Objectors “had shown reasonable cause for having omitted to give the notice of objection within the prescribed period.” Section 19 provides:
   • “19. Barring of objections – Subject to section 24, any objection to a claim of which notice in writing is not given to the Secretary within the period of 6 months prescribed by section 18(1)(c) is taken to be invalid and is for ever barred, and the objection shall not be considered by the Commission or by any Court: PROVIDED THAT an objection to a claim may be made to the Commission at any time prior to the hearing of that claim if the Commission is satisfied that because of reasonable cause the objector omitted to give to the Secretary notice of objection within the prescribed period.”
9. The Commission seem to have relied on the fact that the notice was received well within the second six-month objection period which ended on 26 September 2014: paragraphs 3 and 4 of the Decision. The Commission also significantly noted there was no prejudice to the Applicants in following this course of action. The Commission could have just as easily relied upon the fact that the notice was received two days before expiry of a period of six months “after the first publication” of the Claim.
10. This effectively disposes of the Applicants main complaint. At the hearing of the Application however Applicants counsel also raised an additional issue viz that the Applicants were originally advised the date of hearing of their matter before the Commission was Tuesday 28 February 2017. They were therefore surprised to accidentally discover it was scheduled for Monday 27 February 2017 which led to their appearing unprepared for a hearing on Monday, 27 February 2017. Counsel suggested this was unfair and somehow disadvantaged the Applicants.
11. As stated earlier the relevant transcript has been located. This shows that appearing for the Applicants on Monday 27 February 2017 were Filipina Talaleu Stowers and Sophia Stowers Khan. It also shows they raised this issue but did not feel it necessary to seek postponement of the hearing until the following day. In fact when asked by the Chairman of the Commission whether they were “ready to proceed or not” they answered they were. The matter accordingly went ahead and there is no suggestion from the transcript that the Applicants needed more time.
12. Furthermore the documents before me reveal that in fact the proceedings were originally scheduled for hearing on 05 December 2016. So that the Applicants should have been fully prepared by February 2017.
13. In these circumstances it is difficult to see how the Applicants may have been prejudiced or otherwise disadvantaged by proceeding to hearing one day early. The transcript also shows the only preliminary issue raised by the Applicants was in relation to lodging of the Objectors notice of objection out of time and this was dealt with by the Commission.
14. In relation to the other ground raised in the Applicants Motion of “unreasonableness and illogicality” these were not pursued by Applicants counsel at the hearing of the application. Suffice to say that they relate to the merits of the Decision and in the absence of a right of appeal from decisions of the Commission and in view of the fact that s.23 of the Act makes “an order made by the Commission under s.18 final,” there is no room or jurisdiction for a Constitutional or other review of the substance of the Decision.
15. The Motion filed by the Applicants has no prospect of success, in accordance with the uncontested principles governing such matters, it must be Struck Out.
16. If the parties cannot agree on costs the matter may be referred back to the Court.
    

JUSTICE NELSON