Court says resort’s land lease binding, Land Titles Court has no jurisdiction

The Supreme Court has ruled that the customary land lease at Matautu Lefaga, which is currently home to the Return to Paradise Resort, is valid. 

The Court also ruled that the Land and Titles Court (LTC) and the Lands and Titles Appellate Court (LTCA) did not have the powers to revoke land leases over public land, which is the jurisdiction of the Supreme Court. 

The decision of the Court was handed down recently by Supreme Court Justice Tafaoimalo Leilani Tuala-Warren, after the decision of the Land and Titles Court of Appeal was appealed in the Supreme Court.

The case was between the (first applicants) chiefs of Lefaga, Lemaly Fa’alafua, Lemalu Ailima Auala, Lemalu Matagi, Ape Vavega, Auala Enele and Auala Talaifo and the Return to Paradise Resort (second applicant), the Lands and Titles Court, the Lands and Titles Appellate Court and (fourth respondents) Lemalu Saeni, Lemalu Lauti, Rev Sialoga Lemalu and Tupe Lemalu. 

According to the 31-page ruling, the proceedings concern customary land at Matautu Lefaga called ‘Faga’ upon which the resort now sits.

Justice Tafaoimalo said the scheme for leases over customary land has long formed part of the law of Samoa. The A.C.L.A. is an Act to provide for the leasing and licensing of customary land for certain purposes.

Pursuant to the A.C.L.A., the resort was granted a lease by the Minister in 2012 for the purposes of developing a hotel. 

“It is not in dispute that relying on that lease, the second applicant commenced construction of the hotel. 

“It is also not in dispute that the cost for constructing and completing the hotel was $30 million. That constitutes a significant commercial investment by the hotel investors in Samoa’s tourism industry.

“It is also however blatantly clear that despite the Minister entering into the lease with the second applicant (resort) and the second applicant relying on that lease to invest in a significant commercial operation, that lease was then purportedly cancelled by the LTC in 2013 and that cancellation was affirmed in 2014 by the LTCA.  

“In those proceedings, the second applicant was not a party nor represented or heard on its significant interests invested in the lease granted by the Minister and then purportedly cancelled by the LTC.

“This, as I have said earlier, was a flagrant breach of the second applicant’s right to a fair trial protected by the Constitution, even if the LTC had the jurisdiction to cancel the lease (which it does not). 

“It also breaches the basic rules of natural justice. The effect of the lease cancellation is to deprive the second applicant of its $30,000,000.00 investment without being heard.” 

Justice Tafaoimalo noted that in those circumstances, she was at a loss as to the Attorney General’s Office misguided position, acknowledging that the resort was not heard and its lease cancelled—nevertheless defending that lease cancellation. 

“It was clearly a breach of the second applicant’s rights protected by the Constitution. More broadly however, the natural effect of such a position is entirely untenable, it would seem as a matter of public policy. 

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“It robs leases over customary land made under the A.C.L.A. of any commercial or other value whatsoever. 

“Where a lessee under a lease over customary land can be deprived of their lease without being heard, without being a party or being represented, that lease to an investor like the resort or any other lessee is of no value whatsoever as it provides no certainty and security as to tenure over the land,” she said.  

Justice Tafaoimalo said such a position, in her view, undermined the whole intent of leases over customary land, the certainty that they are intended to provide to parties, the benefits that customary landowners could obtain through lease rentals, employment and other benefits that flowed from such investments. 

Justice Tafaoimalo also ruled that LTC did not have jurisdiction to ‘soloia ma faaleaogaina’ to revoke and cancel a lease granted by the Minister. 

“The Land and Titles Court of Appeal also does not have that jurisdiction. Leases granted over customary land fall within the jurisdiction of the Supreme Court as they operate as leases of public land. 

 “The revocation of the lease by the Land and Titles Court and affirmed by the Land and Titles Court of Appeal was also done in breach of the Second Applicant’s fundamental right to a fair trial and right to be heard.

“The Supreme Court has the jurisdiction to declare the decisions of the Land and Titles Court dated 21 June 2013 and the Land and Titles Court of Appeal dated 28 July 2014, ultra vires (beyond the powers and jurisdiction) and in breach of a fundamental right, and thereby revoke them. Accordingly, LTC decisions which declare the lease to be ‘soloia ma faaleaogaina’ are hereby revoked and set aside.  

“The lease is therefore valid and binding,” ruled Justice Tafaoimalo. 

According to the Court’s summary of results from the proceedings, the resort was built on land which came about as a result of a lease of customary land granted by the Minister of Lands on 1 December 2012 (Now known as the Minister of the Ministry of Natural Resources and Environment). 

“Both the first Applicants and fourth Respondents claim to be beneficial customary owners of Faga.

“The first Applicants applied to the Minister of Lands for the lease of Faga to the second applicants (Resort) in June 2009.  

“The Ministry of Lands as it was known then published the intention to lease in the Savali newspaper on 28 August 2009.

“The objection period is not less than 3 months as specified in the publication (per section 8(2) of the Alienation of Customary Lands Act 1965). 

“The Fourth Respondents filed an objection within the objection period. 

“The objection was heard in Land and Titles Court (“LTC”) on 7 December 2011 during which the Fourth Respondents withdrew their objection. The LTC accepted the withdrawal and noted that the reason was for the parties to mediate. The lease was then granted by the Minister on 1 December 2012 on the basis of advice from the Ministry of Justice and Courts Administration in a letter dated 16 November 2012 that the Fourth Respondents petition had been withdrawn (tatala talosaga).” 

There was mediation attempted between the applicants and the fourth Respondent but was unsuccessful. 

The fourth Respondents then filed a fresh petition on 27 February 2013 objecting to the lease. The LTC heard the fresh petition on 21 June 2013 and made a decision to revoke and cancel (soloia ma faaleaogaina) the lease and dismissed the appeal from the first applicant, upholding and affirming the decision of the LTC.

But the recent decision of Justice Tafaoimalo overturned those decisions of the LTC and the LTCA ruled that the land lease granted to the Return to Paradise Resort is valid and binding.

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