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Understanding the legal challenge against the L.T.R.A. 2008

Dear Editor,

I will not hide in the shadow of the tree. Let the truth be out and right be done.

Transparency International stated on 19 August 2016 that `Grand Corruption occurs when: A public official or other person deprives a particular social group or substantial part of the population of a State of a fundamental right’

The alienation of Aiga customary land rights by registration under Section 32 of the Land Titles Registration Act 2008 fits the definition of grand corruption because it deprives all Samoans of our fundamental rights guaranteed by Articles 14 and 15 of the Constitution of Samoa and the protection of our land rights under Articles 102 & 109 of the Constitution of Samoa.

Article 2 of the Constitution of Samoa renders the Land Titles Registration Act 2008 void, yet the fascist totalitarian dictatorship of the Human Rights Protection Party ignores this fact and must be removed to protect our constitutional rights.

On August 17 a legal challenge was filed in the Supreme Court at Apia.

Those called to answer are the Prime Minister, Tuilaepa Malielegaoi, the Attorney General Lemalu Hermann Retzlaff, the former Attorney General Aumua Ming Leung Wai, the Ministry of Natural Resources and Environment and Samoa Land Corporation Limited.

On 22 October 2018, they are required to present themselves to answer at the Supreme Court in Apia.

An order is sought to declare by way of judgment that the Land Titles Registration Act 2008 is inconsistent and in breach of the Constitution of Samoa 1960 and void as it was created, drafted and eventually passed into being the Land Titles Registration Act 2008 (“LTRA 2008”), with the intent to violate articles 2, 14, 15, 102 and 109 of the Constitution of Samoa (“the Constitution”), which prohibits the alienation of customary lands and the rights of customary landowners through the imposition of a Torrens system of individual title upon a communal kinship land ownership system, as follows:

Article 102: Section 32 of the LTRA 2008, breaches article 102 of the Constitution as registration of customary land, limits the number of owners of interest to customary land to only those named and therefore not accommodating all the legal owners who, under traditional customary land ownership, includes living members of the family as well as those to be born, causing intergenerational injustice.

Article 15: Section 32 further violates the equal protection of all customary landowners’ rights to customary land in violation of Article 15 of the constitution by discriminating against the majority of legal owners and arbitrarily advantaging an individual.

Article 14 and 102: Section 32 arbitrarily eliminates the ownership rights of the majority of legitimate customary landowners affected without their consent, notice or compensation, by operation of law thus violating Articles 14 and 102 of the Samoa Constitution and the principles of equity. This was particularly applicable for customary lands registered between 2008 to 2015 (prior to the commencement of the Land Titles Amendment Act 2015), which were made pursuant to the original Part 3, Section 9(2) of the LTRA 2008 and therefore unlawfully affecting customary land tenure during this time.

Article 109: Prior to the passing of the Land Titles Registration Bill 2008, the respondents failed to direct the proposed bill to be put to the poll of electors on the rolls for the territorial constituencies which is what article 109 requires.

Given this Bill proposed to amend the Constitution by allowing customary land to be alienated, it affected the provisions of Article 102, thus required the support of at least two-thirds of the valid votes cast in such a poll or referendum, prior to it being passed. The LTRA 2008, was prepared, drafted and passed to unlawfully extinguish land rights of customary landowners without their informed consent.

The motion for a declaratory judgement is made pursuant to article 4 of the Constitution, whereby any person may apply to the Supreme Court to enforce the rights conferred under Part 2 of the Constitution (particularly the rights outlined in articles 14 and 15 of the Constitution) and that the Court shall have the power to make all such orders as may be necessary and appropriate to secure to the applicant the enjoyment of any of the rights conferred under the provisions of this Part.

Section 32(d) of the LTRA 2008, transfers sovereignty from the people to the State, as it allows the State to have absolute control and ownership over the property rights of a registered proprietor, including (but not limited to) the right to enter land; recover taxes, duties, charges and rates in respect of land; expropriate land; and/or restrict the use of land.

Through the respondents’ direction and administration of the Land Titles Registration Amendment Act 2015 (“LTRAA 2015”), which limits customary land required to be registered to only leases and licences, they knowingly and deliberately breached article 102 of the Constitution. The LTRAA 2015 alienates ownership rights of traditional customary landowners when leases are registered, as it favours a single owner or the name(s) of those registered on the lease that affects particular customary land. through the respondents’ direction and enforcement of the LTRA 2008 and the LTRAA 2015, there has been a flagrant disregard and continued violation of the Constitution, in particular, article 2 which states

“The Supreme Law –

 (1) This Constitution shall be the supreme law of Samoa. (2) Any existing law and any law passed after the date of coming into force of this Constitution which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.”

The application of the Property Law Act 1952 (“PLA”) applies to the LTRA 2008 violating and subjecting customary land rights to the impact of Lenders and mortgagees’ remedies thereby which can alienate customary lands from its customary landowners.

So how does Section 32 of the Land Titles Registration Act 2008 take customary land from all Aiga members alive and give it to the HRPP Government?

Why won’t the HRPP and ADB talk about it at all?

3 groups of people are in this section:

1. AIGA rely on Articles 2, 102 & 109 of the Constitution and Sections 9(4)(5) of the Land Titles Registration Act 2008 to retain customary land ownership and sovereignty of the land, and agree to a customary land lease believing the Sa’o will hold the land for the Aiga in trust.

2. SA’O relies on S.32 and 33 LTRA 2008 to claim individual title, so that he may sell it as freehold land, which is no longer customary, even if he promises Aiga to hold it in trust for them. Section 79(2)(e) LTRA 2008 specifies that ‘the loss or damage [arising] from the breach by a registered proprietor of any trust’ cannot be compensated by the government. ’In total, there is no protection against breaches of trust; a matai who is the registered proprietor could alienate the land and the beneficiaries will not be compensated by the government. As the trustee of all land leases and registered proprietor, MNRE, the HRPP government claims immunity from all compensation claims.

According to Ruiping Ye, LLM Victoria University, Wellington, section 33 of the LTRA, ‘specifies that knowledge that a ‘trust or unregistered interest is in existence’ is not fraud’, and ‘trust includes registered trust, as opposed to trust as a type of unregistered interest.’ Ye argues, ‘purchasing the land with the knowledge of a registered trust may still not constitute fraud, as is the case in purchasing the land with the knowledge of unregistered interest. This may be so even where there is some dishonesty involved.’ Therefore, the practical effect of sections 32 and 33 would constitute alienation, breaching the substantive law, and therefore be illegal, but the bona fide purchaser’s title will still be unimpeachable.

Articles 102 & 109 do not apply anymore because the land is freehold and not customary and the Sa’o can sell it without any consequence by law.

When the Sa’o registers the land, he gains a freehold title. Freehold property can be defined as any estate which is “free from hold” of any entity besides the owner. Hence, the owner of such an estate enjoys free ownership forever and can use the land for any purposes subject to local laws.

The person that has his/her name registered on the title is considered the true owner of the land: ‘personal private property registration’ – absolutely free from all claims (no more Aiga land rights) not recorded except:

3. The HRPP Government – escapes all the protections of Article 102 & 109 & Sections 9 (4) (5) by claiming that the Constitution permits by the proviso in Article 102 the granting of a lease without a National Referendum:

` an Act of Parliament may authorize-

 (a) The granting of a lease or license of any customary land or of any interest therein;

 (b) The taking of any customary land or any interest therein for public purposes.’

And as the land is no longer customary by the effect of S.32 LTRA 2008 but freehold land of the registered Sa’o, subject to any laws passed by the State:

– the State can pass an Act to do any act under S.32 (d) (i -iv):

 (i) to enter, go across or do things on land

for the purpose specified in the Act,

 (ii) to recover taxes, duties, charges, rates

or assessments by proceedings in respect of

land;

 (iii) to expropriate (take) land; or

 (iv) to restrict the use of land.

 

FSM Taua 

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