The Samoan Government has recently become embroiled in a Westminster tradition parliamentary crisis with the Deputy Prime Minister causing a stir during Parliamentary question time on Wednesday, the 29th April, 2020.
It appears that the HRPP Government has splintered into factions in which, presumably, the factions have been compelled by their intense divergent objections to some Government Legislative propositions culminating with the issues of Land tenure and more specifically with the adaptation of the Torrens title System within the introduction of the Samoan Lands and Titles Registration Act 2008.
(Deputy Prime Minister Masiofo Mataafa Naomi Fiame MP) (Photo: Google)
( Samoan Prime MInister Hon. Tuilaepa Malielegaoi MP)
It appears that the crux of the LTRA 2008 is the Torrens System. The Torrens system is defined as a Property Law, and more specifically, Land tenure property, Registration system. The Torrens System, therefore, it is hoped, would,.
“ maintains a register of land holdings, which serves as the conclusive evidence (termed "indefeasibility") of title of the person recorded on the register as the proprietor (owner), and of all other interests recorded on the register.” (wikipedia)
Thus, the ‘indefeasibility of titles’ with regards to Lands and Titles Court Procedures would in part allow for the consolidation and in this the simplification of the myriad of contentious instruments by claimants, most of which, arguably, would be considered procedurally dubious at best if not simply tardy procedurally according to jurisprudence processes.
To exacerbate matters further the three controversial Bills are concurrently being deliberated with each of the three Bills are undergoing the respective second readings deliberations in Parliament.
Added to the seemingly convoluted mind numbing filibustering varying sources, whether it be by a untabled petition by Clergymen for their Monotaga plea, again this may be interpretively considered as in breach of the Samoan Electoral Act, 1963 provisions.
The Electoral Roll Amendment Bill, 2020 that was tabled for the second reading in Parliament was paradoxically criticised by the Deputy Prime Minister. The reaction by the Prime Minister was to remind the Deputy Prime Minister of the Westminster Traditions of Cabinet, and Executive, collective responsibility, and, therefore, in no uncertain terms, to reiterate the Westminster traditions of Cabinet ‘Loyalty’, of Ministers within The Samoan Human Rights Protection Party’s Cabinet loyalty to their Leader, their Prime Minister.
The reprimand would then follow the Westminster traditions of the dissenting Deputy Prime Minister having three options availed for her.
1. The Deputy PM will either retract and withdraw her criticism of the Electoral Law Amendment Bill.
2. The Deputy PM, withdraws her criticism and removes herself from Cabinet, and therefore, from the front bench, to the back bench.
3. The Deputy PM, resigns from her portfolio, and resigns her Party Membership from the HRPP, and crosses the floor, to either become an Independent MP, or to join any of the Opposition Political Parties.
The Electoral Amendment Bill 2020 has caused some level of criticism from a petition presented in Parliament by the member for Gagaeifomauga number 3 had attempted to table a petition before parliament but was rejected by the Speaker of the house, on the grounds that the petition was not presented before a Select Committee nor was the petition approved by the Government Whip, prior to the Member for Gagaeifomauga Number 3, presenting the petition before Parliament.
(Member for (Gagaeifomauga Number 3, MP Laauli Polata’ivao MP) (Photo: Google)
The Speaker of the House, would remind the Member for Gagaeifomauga Number 3, that parliamentary due process must be adhered to prior to any attempt to table a petition before parliament. This Parliamentary interdiction by the Speaker of the House was received with very strong objection by not only the Member for Gagaeifomauga Number 3, but, throughout dissenting members of the HRPP.
The petition in question was with regards to the Electoral Amendment Bill, 2020, to aiding and abetting by the Clergy.
“Specifically the petition was against the amendment that omitted religious contributions
monotaga as a qualification for an election candidate.” (Talamua Samoa).
The Electoral Amendment Bill, 2020. Under the amendment of section 13, subsection (10) It is the duty of the Commissioner to institute a prosecution against a person that the Commissioner believes to have breached sub-section (9), or the offence of aiding, abetting, counselling, or procuring the commission of any such offence by a person.”
The Samoan “monotaga” in which the petition that was signed by numerous Clerics would indeed have incriminated the Petitioners if the petition were to be tabled. Under Electoral laws in most Commonwealth of Nations Democracies, aiding and abetting in Election campaigns is considered to be electoral bribery and it is considered to be illegal and undemocratic.
Under the Samoan
Electoral Act 1963 the following Electoral offences are considered applicable to the Electoral Act 1963
Section 96. Bribery –
In this section, ―voter‖ includes a person who has or claims to have a right to vote.
A person is guilty of a corrupt practice who commits the offence of bribery.
A person commits the offence of bribery who, directly or indirectly by himself or herself or by any other person on his or her behalf:
(a) gives any money or procures an office to or for a voter, or to or for any other person on behalf of a voter, or to or for any other person, in order to induce a voter to vote or refrain from voting; or
(b) corruptly does any such act as aforesaid on account of a voter having voted or refrained from voting; or
(c) makes any such gift or procurement as aforesaid to or for s person in order to induce that person to procure, or endeavour to procure, the return of a person at an election or the vote of a voter,− or who, upon or in consequence of any such gift or procurement as aforesaid, procures, or engages, promises, or endeavours to procure, the return of a person at an election or the vote of a voter.
For the purposes of this section:
(a) references to giving money shall include references to giving, lending,
agreeing to give or lend, offering, promising, or promising to procure or
endeavour to procure, any money or valuable consideration;
(b) references to procuring an office shall include references to giving,
procuring, agreeing to give or procure or to endeavour to procure, an office,
place, or employment.
A person commits the offence of bribery who:
(a) advances or pays or causes to be paid any money to or to the use of any
other person with the intent that that money or a part thereof is to be
expended in bribery at an election; or
(b) knowingly pays or causes to be paid any money to a person in discharge or repayment of any money wholly or in part expended in bribery at an election. 82 Electoral Act 1963 Subsections (7) and (8) do not extend or are to be construed to extend to any money paid or agreed to be paid for or on account of any legal expenses incurred in good faith at or concerning an election. (7) A voter commits the offence of bribery if before or during an election he or she directly or indirectly, by himself or herself or by any other person on his or her behalf, receives, or agrees or contracts for, any money, gift, loan, or valuable consideration, office, place, or employment for himself or herself or for any other person for voting or agreeing to vote or for refraining or agreeing to refrain from voting. (8) A person commits the offence of bribery if after an election he or she directly or indirectly, by himself or herself or by any other person on his or her behalf, receives any money or valuable consideration on account of a person having voted or refrained from voting or having induced any other person to vote or refrain from voting.
Treating – (1) A person is guilty of a corrupt practice who commits the offence of treating. (2) A person commits the offence of treating who corruptly by himself or herself or by any other person on his or her behalf, either before, during, or after an election, directly or indirectly gives or provides, or pays wholly or in part the expense of giving or providing any food, drink, entertainment, or provision to or for a person: (a) for the purpose of corruptly influencing that person or any other person to vote or refrain from voting; or (b) for the purpose of corruptly procuring himself or herself to be elected; or (c) on account of that person or any other person having voted or refrained from voting, or being about to vote or refrain from voting. (3) A voter who corruptly accepts or takes any such food, drink, entertainment, or provision also commits the offence of treating.
97A. Conduct of
“O’o” and “Momoli” – Despite the other provisions of this Act, the traditional presentation of ―O’o‖ and ―Momoli‖ by a Member or Candidate or a person acting on Electoral Act 1963 83 behalf of such Member or Candidate shall not be considered as treating or bribery or an illegal or corrupt activity or practice but the presentation is to be made, within 12 months, after the date of declaration of results of poll under section.
97B. Conduct of
“tautua faaauau” – (1) Despite the other provisions of this Act, the traditional service or assistance of
―tautua faaauau‖ by a Member or a person acting on behalf of such Member shall not be considered as treating or bribery or an illegal or corrupt activity or practice, where the service or assistance is given before 90 days prior to the expiry of Parliament at 5 years from the date of the last preceding General Elections or given after the close of Poll on polling day. (2) For the purposes of this section, ―tautua faaauau‖ means the provision of service or assistance in a form or manner rendered or given to a person or organisation provided such service or assistance: (a) is considered to be culturally appropriate or expected; and (b) is not excessive in the circumstances; and (c) is not a ―O’o‖ or ―Momoli‖. (3) This section does not apply to the provision of service or assistance at a funeral or to the Member ’s church minister. 98. Undue influence – (1) A person is guilty of a corrupt practice who commits the offence of undue influence. (2) A person commits the offence of undue influence who: (a) directly or indirectly, by himself or herself or by any other person on his or her behalf, makes use of or threatens to make use of force, violence or restraint, or inflicts or threatens to inflict, by himself or herself or by any other person, any temporal or spiritual injury, damage, harm, or loss upon or against a person, in order to induce or compel that person to vote for or against a particular candidate or to vote or refrain from voting, or on account of that person having voted for or against a particular candidate or having voted or refrained from voting; or (b) by abduction, duress, or a fraudulent device or contrivance, impedes or prevents the free 84 Electoral Act 1963 exercise of the franchise of a voter, or thereby compels, induces, or prevails upon a voter either to vote or to refrain from voting; (c) by himself or herself or any other person on his or her behalf withholds a Certificate of Identity belonging to another voter and in doing so induces that voter to vote for a particular candidate, or prevents that voter from voting for a particular candidate or from voting in that election
The Second Reading of the Lands and Titles Bill 2020 and the Samoan Constitutional Amendment Bill 2020.
The LTRA 2008 had ignited a very virile anti-Government movement known as the O Le Palemia (OLP), which had almost been labelled a Terrorist Organisation by the Samoan Government, after a Pig throwing antics by a Brisbane based Samoan political Dissident, whom has now been detained in Samoa pending court proceedings over anti-Government actions. On a less than militant political movement is the Samoan Solidarity . titles to freehold land (Torrens Law) from that of the Samoan Constitution under Article 102, with regards to the alienation of Customary land.
The implication of the Samoan Constitution upon the Lands and Titles Court Procedures.
Article 102 of the Constitution states.
“102. No alienation of customary land: It shall not be lawful or competent for any person to make any alienation or disposition of customary land or of any interest in customary land, whether by way of sale, mortgage or otherwise howsoever, nor shall customary land or any interest therein be capable of being taken in execution or be assets for the payment of the debts of any person on his or her decease or insolvency: PROVIDED THAT an Act of Parliament may authorise: (a) the granting of a lease or licence of any customary land or of any interest therein; (b) the taking of any customary land or any interest therein for public purposes.”
For the purpose of the Proprietor claiming rights to indefeasibility of freehold land through their respective claims, with respect to the Alienation of freehold land Act 1972, and assuming that registered Proprietor has exclusive customary land license, and after any appeal, may thereafter would meet the following criteria in reference to the LTRA 2008,
The Lands and Titles Registration Act, 2008, purpose;-
AN ACT to provide for:
(a) the establishment and maintenance of a Register of title to land; and
(c) the establishment of ownership of interests in land by registration; and
(d) the recording in the Register of information in respect of transactions with
land; and
(e) access to information recorded in the Register; and
(f) matters incidental to the above.
More specifically, the ‘registration’ therein of the Proprietor implies the following.
“....the administrative process which, under this Act, affects,
confers, confirms or terminates interests by means of entries in the Register but
does not include record of customary land”.
In short, the
LTRA 2008 and in part of the
Property Law Act 1952 under section 52A.
52A. Conditions of sale of land under the provisions of the Land Titles Registration Act 2008 – (1) Under a contract for the purchase of land under the provisions of the Land Titles Registration Act 2008, the purchaser shall be entitled at the cost of the vendor: (a) to receive from the vendor sufficient particulars of title to enable the purchaser to prepare the appropriate instrument to give effect to the contract; and (b) to receive from the vendor an abstract of any instrument forming part of the vendor’s title, in respect of which a caveat is entered upon the folio of the Register kept under the Land Titles Registration Act 2008; and (c) to have the relevant certificate of title or other document of title lodged by the vendor at the office of the Registrar to enable the instrument to be registered; and (d) to have any objection to the registration of the instrument removed by the vendor: PROVIDED THAT, as to any such objection which the purchaser ought to have raised on the particulars or abstract, or upon the investigation of the title, or which arises from the purchaser’s own act, default, or omission, the purchaser shall not be entitled to have the same removed except at the purchaser’s own cost. (2) This section applies only if and as far as a contrary intention is not expressed in the contract, and has effect subject to the terms of the contract, and to the provisions therein contained.
The registration of Proprietor’s title and entitlement as Vendor, and in pursuant to the
Land Titles Investigation Act, 1966.
AN ACT to authorise the setting up of a Commission to investigate and determine titles to certain lands, and claims thereto.
10. Functions of Commission – The functions of the Commission are: (a) to advertise for claims as provided by section 15; and (b) to inquire into each claim made to the Commission by any person to individual ownership of or property in any land in Samoa other than land undoubtedly held by any person as individual property for an estate in fee simple created or confirmed by a Crown Grant or a Court Grant; and (c) to conduct each such inquiry as prescribed by this Act; and (d) to dispose of each such claim in one or other of the ways permitted by this Act; and (e) to recommend to Cabinet any amendments of the law which may be necessary to give effect to the determination of the Commission on any such claim.
The Lands and Titles Court is empowered by the Constitutional Amendment Bill, 2020, under article 104 of proposed Bill.
104. Customary Land and Titles Protection:
(1) There shall be Land and Titles Courts with such composition and with such jurisdiction in relation to Matai titles and customary land provided in this Constitution.
104.
Customary Land and Titles Protection: (1) There shall be Land and Titles Courts with such composition and with such jurisdiction in relation to Matai titles and customary land provided in this Constitution.
104A. Land and Titles Court: (1) There shall continue to be a Land and Titles Court which shall be a court of record. (2) A sitting of the Land and Titles Court consists of: (a) the Vice President on behalf of the President as the presiding Judge; and (b) two (2) Land and Titles Court Judges. (3) The Land and Titles Court shall continue to have all the jurisdiction it exercised prior to this Constitution Amendment Act 2020 coming into force.
(4)
The Land and Titles Court shall: (a) have such original and appellate jurisdiction; and (b) possess and exercise all the jurisdiction, power, and authority, which may be necessary to administer the laws under this Part IX Land and Titles Court. (5) In particular the Land and Titles Court shall have jurisdiction: (a) in all matters relating to Samoan names and titles; (b) to make orders or declarations in respect of Samoan names and titles as may be necessary to preserve or define the same, or the rights or obligations attaching to those names and titles in accordance with the customs and usages of the Samoan race and all laws in force in Samoa with reference to customs and usages; (c) all claims and disputes between Samoans relating to customary land, and the right of succession to property held in accordance with the customs and usages of the Samoan race; (d) in all the powers that are inherent in a Court of record; and (e) as may be conferred by Act. (6) In all matters before it, the Court shall apply: (a) custom and usage of the Samoan people; (b) the law relating to custom and usage; (c) this Act and any other enactment expressed to apply to the Court. (7) The Court shall decide all matters in accordance with what it considers to be fair and just between the parties. (8) The English common law and equity of England does not apply in the Land and Titles Court. 16 (9) In any matter before it, the Land and Titles Court may reserve for consideration by the Land and Titles High Court: (a) a petition presented; or (b) on a case stated. (10) The Court in determining any petition before it has the power: (a) to make a decision on a petition brought before it; and (b) make orders that take effect to be specified in the order or on the date on which it is made. (11) The decision of the Land and Titles Court is in accordance with the opinion of the majority of the members of the Court. (12) The decision of the Land and Titles Court is subject to an appeal to the Land and Titles High Court, under Article 104B.
With all Land and Titles court proceedings having satisfied that no malfeasance submissions of any conveyancing instruments by the Surveyors under the Survey Act, 2010, as pursuant to the Land Titles Investigation Act, 1966. Whereby, the Surveyors submissions as appendices to a Proprietors title claims and for future land development propositions, as Vendor for Easement or other land use purposes, are substantiated. Under the
Survey Act, 2010.
“ PART V
SURVEY PLANS
19. Subdivision plans–(1) Where a land is subdivided into allotments for any purpose, a subdivision plan of that land shall be prepared by a licensed surveyor and submitted to the Chief Executive Officer for approval. (2) A subdivision plan submitted for approval under subsection (1) is to be accompanied by an offer by the registered proprietor to transfer to the Government all areas designated as roads, road reserves and public reserves depicted on the plan. (3) A subdivision plan that is submitted to the Chief Executive Officer for approval shall be signed by the registered proprietor of the land being subdivided or his or her authorised representative. (4) A subdivision plan shall clearly depict: (a) the boundaries of the land being subdivided; and (b) the allotments and their areas and dimensions; and (c) any existing roads and road reserves; and (d) any existing and proposed public reserves; and (e) any existing easements; and (f) any proposed roads and proposed road splays or proposed road widening; and (g) adequate access to all parcels of land depicted in a plan; and (h) any other particulars as may be determined from time to time by the Chief Executive Officer, or required by the Chief Executive Officer in relation to a particular subdivision plan. 20. Definition plans– (1) Where the details of a land are to be defined or redefined for any purpose, a definition plan of that land shall be prepared by a licensed surveyor and submitted to the Chief Executive Officer for approval. (2) A definition plan submitted for approval under subsection (1) shall be accompanied by an offer by the registered proprietor to transfer to the Government all areas designated as roads, road reserves and public reserves depicted on the plan. (3)A definition plan submitted for approval:
The Lands and Titles Bill 2020,
Herein, is the ambiguity of LTRA 2008 with regards to contravening Article 102 of the Samoan Constitution.
PART 3
CUSTOMARY LAND
Division 1
Land deemed or declared Customary Land
9. Declaration of certain land to be customary land: (1) A person or the alii and faipule of any village claiming an interest in any freehold land or any land in respect of which the customary or freehold status is claimed to be in doubt, may petition the Court for an order to be made with the consent of all parties, declaring such land to be customary land.
Conclusion
It appears that at the heart of the debate is the purported assumption of a quasi-extinguishment of the Samoan Customary Land through the provisions of the Proprietorship of an alleged unscrupulous Matai as a Vendor whom would lease former customary lands, allegedly rendered freehold land which may be leased for commercial Easement purposes.
What seems to be the problem is whether the Samoan people can accept the Utilitarian efficacious use of former customary lands, albeit, rendered as Freehold title, through some sketchy lands and titles conveyancing process. Whether or not that the Nation of Samoa, may consider the Pareto Optimality for the efficacious property land use, or to allow for the Samoan Constitutional status quo, under Article 102, so as to ensure the prevention of any alienation of Samoan customary land, and in that Samoa and their cherished customary land, will remain, as Herbert Von Bismarck, (the son of Otto Von Bismarck), had once chimed, in perpetual Benign Neglect.
Tim B Tufuga
.
Electoral Amendment Bill, 2020, Government of Samoa, 2020. http://www.palemene.ws/new/wp-content/uploads/Electoral-Amendment-Bill-2020-Eng.pdf
Constitution of the Independent State of Samoa.
http://www.palemene.ws/new/wp-content/uploads/Constitution-Amendment-Bill-2020-Eng.pdf
Lands and Titles Bill, 2020, Government of Samoa, 2020. http://www.palemene.ws/new/wp-content/uploads/Land-and-Titles-Bill-2020-Eng.pdf
Property Act, 1952 Government of Samoa. http://extwprlegs1.fao.org/docs/pdf/sam74589.pdf
Survey Act 2010, Government of Samoa.
http://extwprlegs1.fao.org/docs/pdf/sam109264.pdf
Electoral Act, 1963. Samoan Government.
https://www.oec.gov.ws/wp-content/uploads/2017/08/Electoral-Act-1963-1.pdf
Radio New Zealand, 29th April 2020, https://www.rnz.co.nz/international/pacific-news/415383/samoa-s-pm-and-deputy-pm-face-off-in-the-house
Talamua Samoa, Keresoma, L, https://www.talamua.com/parliament-denies-church-leaders-peoples-voices/?fbclid=IwAR1x1QqHAOMny5uBEBIEV7mam6NB0kQoPh0_H14pFOC6Z18P7N1tRyyMgbc, 29th April 2020.
Stamp Duty Ordinance, 1932,
http://www.paclii.org/ws/legis/num_act/sdo1932204.pdf
Lawyers and Legal Practice Act, 2014
http://www.palemene.ws/new/wp-content/uploads/01.Acts/Acts%202014/Lawyers-and-Legal-Practice-Act-2014-Eng.pdf
Lands Titles Investigation Act, 1966.
http://extwprlegs1.fao.org/docs/pdf/sam35514.pdf
SSIG, https://www.facebook.com/SamoaSolidarityInternationalGroup/
OLP, https://www.facebook.com/olppalemia/
New Zealand Herald, Tapaleao, Vaimoana, https://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=12160586
Herbert Von Bismarck, Wikipedia, Berlin Treaty, 1889, https://en.wikipedia.org/wiki/Treaty_of_Berlin_(1889)
