Court grants strike out motion in Apia land claim

The Supreme Court has granted a strike out motion over a land dispute in the village of Apia.

The decision was delivered by the former Chief Justice, His Honour Patu Tiava'asue Falefatu Sapolu, in response to a strike out motion filed by the Attorney General’s Office.

The dispute is over the land where the Criminal Investigation Division and Traffic Division of the Police are located.

Tuiletufuga Siaosi, of Apia, had accused the Government, through the Minister of Lands, of trespassing and allegedly taking of land pertaining to the Tuiletufuga title of Apia, without compensation. 

The plaintiff alleged that the disputed land is still customary land pertaining to the title of Tuiletufuga of Apia. 

He claimed that on 21 September 1901, the German Imperial Governor permitted one Tuiletufuga Leapai of Apia to convey the disputed land to the German Imperial Government for 1800 marks. 

It also claimed that on 21 October 1901, District Court Judge Dr. Schultz confirmed the said sale and only a sketch plan was prepared but not a proper survey plan.  Tuiletufuga argued that by virtue of the Samoa Constitution Order 1920, enacted by the New Zealand administration, the disputed land was vested in the Crown free from Native title and from any estate in fee simple and became known as “Crown land”.  

Upon Independence in 1962, the said land was vested in Samoa free from customary title and became known as “public land”.

Tuiletufuga argued that the transfer of the disputed land from Tuiletufuga Leapai should be declared null and void. 

But Justice Patu ruled that the cause of action on trespass to land and for recovery of land is clearly and plainly out of time and is time barred. 

He pointed out that it is clear from the statement of claim that the sale the plaintiff is complaining about took place on 21 September 1901 between Tuiletufuga Leapai and the German Imperial Government, confirmed by District Court Judge Dr. Schultz. 

“The deficiencies alleged by the plaintiff regarding the way the said sale was carried out must have occurred prior to 21 September 1901,” said Justice Patu. 

“The plaintiff’s first cause of action in trespass to land and for recovery of land must have accrued on 21 September 1901 or at least around that time.  

“That is more than one hundred years ago to the time the plaintiff commenced his proceedings on 4 October 2004.” 

The Judge also added that at the time of the alleged sale in 1901, there was no classification of land in Samoa. 

 He said there is nothing that could be found to show whether there were any limitation periods for bringing any suits or actions during the time of the German administration to the time New Zealand took over Samoa in 1914.  

The Court heard it would appear that the Limitation Act 1623 (UK) which applied to New Zealand also applied to Samoa by reason of section 359 of the Samoa Act 1921.  

“But as a copy of the Limitation Act 1623 (UK) could not be found, one does not know what was in that legislation.” 

The former Chief Justice also discussed his reasons for granting strike out for the second cause of action for alleged unlawful taking of land without compensation. 

He made reference to the plaintiff’s claim that his family’s lands fronting on the main Beach Road were taken for public purpose. 

Tuiletufuga also argued there was a reserve for his family an access way described as “Apia Lane” to provide access for the his family from their lands to the Main Beach Road.  

However, the said Apia Lane had now been extinguished by the construction of the new New Zealand High Commission on land given to it by the Samoan government.  

Justice Patu said these factual allegations by the plaintiff which form the core of his second cause of action are strongly denied and contradicted by the defendant in its strike out motion.  

He referred to sworn affidavit of Safuta Toelau Iulio, a licensed surveyor and Assistant Chief Executive Officer, Technical Services, of the Ministry of Environment and Natural Resources. 

“Safuta deposed in his affidavit that the records of the MNRE show that survey plan 2342 which was approved on 12 November 1961 is the latest survey plan approved before Independence for the area of land which included Apia Lane,” he said. 

“And survey plan 2342 shows Apia Lane to be a public land and therefore Crown land as it was known before Independence. 

“In other words, Apia Lane being Crown land it was not Native land or customary land pertaining to the title Tuiletufuga as claimed by the plaintiff.” 

To support the strike out motion, the Attorney General’s Office stated the alleged transfer of the disputed land from Tuiletufuga Leapai of Apia to the Imperial Government of Germany occurred on 21 September 1901. 

They argued this matter ought to have been dealt with expeditiously during the time of the German administration in Samoa. 

Another ground of their argument is any liability arising out of the alleged deficiencies of the transfer of the disputed land in 1901 would accrue to the Imperial Government of Germany being the alleged transferor and not to the Government of Samoa which was not responsible as it was not in existence at the time. 

Furthermore, the A.G. argued  the alleged access way described by the plaintiff in his statement of claim as “Apia Lane” was marked as a public road (Crown land) in the relevant survey plan prepared by the then Land and Survey Department of Western Samoa. 

“On Independence Day, the said Apia Lane was vested in the State of Samoa by virtue of Article 123 of the Constitution, and became known as public land there is no interest of the plaintiff recorded on the Land Register in respect of Apia Lane immediately before or since Independence Day.”

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