The Court of Appeal has upheld the decision of the Supreme Court that Namu’a Island belongs to the government.

Tu'isila Maluafiti Tu'isila had appealed the Supreme Court decision seeking ownership of Namu'a and declarations to that effect, damages and compensation.

The government has registered title to Namu'a, and declarations were sought by Tu’isila that the vesting and registrations placing the island in the name of the government were unlawful, invalid and of no effect. It is also claimed that all former leases by the government, including a lease now held by the Public Trustee.

The claims were dismissed by Justice Mata Tuatagaloa in a judgment of 20 September 2024.

The Court of Appeal ruled that the Government of Samoa has a valid title to Namu'a. Tu'isila and his predecessors, who had a valid title to the island in 1873, ceased to have a title to the land following the Court Grant No.167 in 1895.

“Like Justice Tuatagaloa, we draw in conclusion on the accurate summary of the position of Justice Nelson in ruling on an earlier strike out application in this proceeding,” said the judges in their ruling.

“In this case, the undisputed facts as pleaded in the plaintiff's Statement of claim are that the original mortgagee, Peter Laban, successfully lodged a claim over Namu'a Island in 1894 with the Samoan Land Commission and the Samoa Supreme Court, a procedure established by the 1889 Berlin Act.

“Despite objection by the Applicant's predecessors in title, Laban was granted ownership over Namu'a in 1895 by Court Grant 167.”

According to the facts of the case, in 1873, Namu'a was owned by Tu'isila of Mutiatele on behalf of his family. Tu'isila was an ancestor of the appellant, and is also an ancestor of Salaevalu Tu'isila Ulberg whose estate is represented by the Public Trustee.

On 24 November 1873, the Tu'isila entered into a short written agreement to lease the island with three Europeans, one of whom was a German called "Peter Laban". Mr Laban occupied the land until he died in 1891. It was then occupied by his son, William Laban who had the island in 1895 when its ownership came to be judicially determined.

“As this judgment has shown, there is prejudice arising because of the great lapse of time in this case. There is no complete documentary record of what happened. Key documents are missing and cannot be found. There is no firsthand evidence from deponents as to what happened. It is not known whether the full record from 1890 was available, it would work for or against the case of the appellant,” the Court of Appeal said.

“However, we have already found that the appellant's case is not made out. It fails whether or not there has been fatal delay. Therefore, we do not propose taking the issue of delay any further, having noted it and briefly referred to some of the arguments. We have decided to avoid the artificiality of trying to construct what we might have done should we have found that the appellant was entitled to relief.

“We therefore do not make any determination on the issue based on the claim of delay, and our decision and the comments made should not be taken as indicating that a defence based on delay would be upheld.”