Bid to sue former Head of State dismissed by Court

An application to sue the former Head of State, Tui Atua Tupua Tamasese Efi, as part of a $5 million lawsuit seeking to reclaim ownership of customary land has been dismissed by the Supreme Court. 

In a decision handed down on Friday, the Court also found that filing suit against the Asian Development Bank (A.D.B.) in the same matter was not possible. 

The lawsuit was filed by Samoa Solidarity International Group (S.S.I.G.) and Feagaimaalii Bruce Utaileuo before the Supreme Court earlier this year with several government offices named as defendants. 

The group is asking the Court for all customary land leases to be returned to their original and traditional state of ownership prior to 2008 and for the Land Titles Registration Act of that year to be voided.  

It also sought to have those occupying leased customary lands to be legally removed.

In an oral decision on the case, Justice Mata Keli Tuatagaloa said dismissing the application to sue the former Head of State and the Bank in no way infringed upon the plaintiffs' access to a fair trial. 

But Justice Tuatagaloa pointed out that both those parties enjoy immunity under two Samoan laws – the Head of State Act 1965 and Diplomatic Privileges and Immunities Act 1978. 

“The immunity has not been waived by A.D.B. and in relation to the former [Head of State's] immunity under section 5 of Head of State Act 1965 still applies," the Judge ruled. 

The Court found that Tui Atua Tupua Tamasese Efi's actions were covered by the Head of State Act.

The S.S.I.G.'s leader and lawyer, Unasa Iuni Sapolu, said the group is likely to appeal the decision once they receive a written decision. 

Unasa argued that the joinder decision refers to the Head of States Act 1965, but the group is fighting for the violation of the Constitution that they believe has been violated. 

A motion on security of cost from the five remaining respondents and a strike out motion from former Attorney General, Aumua Ming Leung Wai is pending before the Court. 

Other respondents in the civil claim are; the Office of the Prime Minister, Attorney General, former Attorney General Aumua, Ministry of Natural Resources and Environment (M.N.R.E.) and the Samoa Land Corporation. 

The lawsuit by S.S.I.G. is questioning the “legality and the constitutionality” of the Land Titles Registration Act 2008.

Another cause of action by the applicants claims that the Government is in violation of Article 102 of the Constitution by implementing, authorising, passing and enforcing Land Titles Registration Act 2008 — which they allege alienates the traditional landowners and removes their legal rights to their customary land.

The claim also rests on an argument that Article 109 of the Constitution was allegedly violated by the respondents in passing a law that allows the alienation of customary land — without satisfying the requirement for a referendum vote — before submitting the said amendment of the Constitution to the Head of State’s signature. 

The applications also claim the Government passed the Land Titles Registration Act 2008 and enforced it for 10 years, thereby allegedly violating Article 2, which states that the Constitution shall be the supreme law of Samoa and also the Government violated Article 14 pertaining to rights relating to property. 

The action also invokes a right to freedom from discriminatory legislation where “the Government passed the Land Titles Registration Act 2008 and enforcing the arbitrary elimination of customary land ownership rights based on the availability of space on a registration document and by selecting owners based on their matai privilege as sa’o of the family is in violation of Article 15”.

The last cause of action is that the respondents — in their role from the time of drafting and passing the Land Titles Registration Act 2008 to drafting and passing Land Titles Registration Act 2015 to permitting the Bill in 2017 before parliament — have all conducted themselves with either alleged recklessness or gross negligence to the Samoa Constitution.

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