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Review on old cases "gross" injustice

A former District Court Judge, Lefau Harry Schuster, has described proposed amendments empowering the Land and Titles Court [L.T.C.] to revisit cases up to 100 years old as a “gross abuse” of law.

The proposed change is one of several constitutional amendments to the court, which are currently before Parliament.

Under the changes, the President of the L.T.C. may certify special leave to hear an appeal. 

The new changes are part of the Constitution Amendment Bill 2020, Land and Titles Court Amendment Bill 2020, and Judicature Bill 2020, now at the second reading stage of parliament. 

The changes would make the L.T.C. President the head of the Land and Titles Court Bench.

But the former Member of Parliament questioned how the Government could possibly revisit decisions that have already reached a final conclusion.

“In law, that is a gross abuse and I don’t understand how you can revisit that kind of decision that was determined by those people [in the past],” said Lefau.

“You don’t know the circumstances in those matters and how it was dealt with.

“They saw the witnesses and had assessed [witnesses] themselves and made those decisions so how do you revisit a 100-year-old decision and on what basis.”

The question of revisiting ancient cases was raised in Parliament in March this year.

The Minister of Justice Courts and Administration, Fa’aolesa Katopau Ainu’u, responded that the bill gives the L.T.C. President and other Judges the opportunity to review cases.

The Prime Minister, Tuilaepa Dr. Sailele Malielegaoi, also supported the idea in Parliament in March.

Tuilaepa said the new L.T.C. Court of Appeal can review any decision - even those that were delivered in 1800.

Approval for the case being reviewed is subject to it being worth revisiting, he said.

In addition, he said that a matter can only be appealed once an application for an appeal is granted.  

But the former Judge pointed out that there exists a concept of finality in the law.

Lefau said that once a case goes through the process from appeal to judicial review it ends there.

“That is the rule of law; there is finality,” he said.

“Once a decision like that is revisited and I don’t know on what grounds that is human bias and prejudice and I find that worrying that the law is being politicised.

“It can cause injustice in the sense that a decision delivered 100 years ago will be reviewed but with what proof and on what legal basis.”

According to Lefau, there are facts a person must prove in a court case; if you cannot prove it – that results in a ruling against you.

“It is an injustice for the parties that won that case and if it’s revisited on whatever those grounds are there is that human interference and that is injustice in the law,” he said.

“It is justice according to the law not on some human notion of what justice should be.”

The most recent case that dates back to 1900 that was ruled upon and was struck out due to being “out of time” and “time barred” is a matter between [Tuiletufuga] Leapai Siaosi and the Ministry of Police.

The matter involves a land dispute in Apia where the Criminal Investigation Division and Traffic Division of Police are located on. It was presided by former Chief Justice, Patu Falefatu Sapolu.

The applicant in the matter claimed that on 21 September 1901 the German Imperial Governor permitted one Tuiletufuga Leapai of Apia to transfer land to the German Government for 1800 marks.

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

But Justice Patu ruled that the causes for action in the appeal in the case: trespassing on land and for the recovery of land were clearly “out of time” and therefore “time-barred.”

He pointed out that it was clear from the statement of claim that the sale the plaintiff complained of 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 former Chief Justice 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.

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