Are Land & Titles Judges Appointments Statutory or Constitutional?

By Lagi Keresoma

APIA, SAMOA – 14 MARCH 2022: The arguments whether the appointments of the current President and Judges of the Land & Titles Court (LTC) are Statutory or Constitutional, was one of the key issues debated before the Supreme Court yesterday.

The parties to the case were the President of LTC, Fepuleai Atila Ropati represented by Leilani Tamati and the Minister for Justice & Courts Administration, Matamua Sili Vasati Pulufana, represented by the Attorney General Su’a Hellene Wallwork Lamb.

The panel of judges comprised the Chief Justice Satiu Simativa Perese, Senior Judge Vui Clarence Nelson and Niava Mata Tuatagaloa.

The arguments focused on the impacts and differences of the LTC Act 1981 that was replaced by the new LTC Act 2020 passed in December 2020 and activated in March 2021.

Should LTC judges be sworn–in again under the new Act?
The LTC President, Vice President and all LTC judges appointments were made under the LTC Act 1981 and were known as Statutory appointments,

When the LTC Act 2020 was activated in March last year, all statutory appointments that existed under LTC Act 1981 became Constitutional appointments.

Senior Judge Vui Clarence Nelson then asked Tamati about the requirements for the judges to take new oaths given that a new legislation was adopted and that all judges had to be sworn in again.

“They are still bound under their old oaths and there is nothing in the legislation that requires that, as their functions are still the same as before,” responded Tamati.

“Isn’t that why, when the legislation of 2020 came in, it took effect from the date it allegedly was ascertained as 5^th January, isn’t there then a transitional provision because those appointments made under the LTC Act 1981 were statutory appointments not constitutional?” asked Justice Tuatagaloa.

“Yes your Honour, they were appointed under the Supreme law so there is actually no requirement for them to be sworn in, ” said Leilani.

Justice Tuatagaloa wanted to know from Tamati if the Statutory appointment made under the LTC Act 1981 will automatically be covered by the Constitution.

“Yes” Tamati replied.

She explained that because the appointments are now under the Constitution, there is a provision there for them to carry out office until such time.

Revocation of the President & judges appointments
Su’a pointed out from the outset of her submission that the appointment of the President and all other judges had been revoked when the LTC Act 1981 was repealed in March 2021.

She also argued that the requirement for anyone to be eligible as a judge in the Land & Titles Court is having served at least 10 years within a judiciary office.

Tamati however argued that Article 111 of the Constitution guarantees that their posts and appointments are secure, but the intention of that specific provision was for the appointment of LTC Assessors.

Article 111. Judicial officer “means the holder of any judicial office, but does not include an employee of the Public Service who exercises all or any of the functions of a judicial office.”

Justice Nelson then referred counsels to Section 9 (3) of the Constitution Amendment Act 2020 where it states “the appointments can continue” and which he suggested could be the answer to the problem.

Tamati admitted she was not aware of Section 9(3) but Su’a pointed out that the three Acts, Constitution Amendment Act 2020, Judicature Act 2020 and the LTC Act 2020 came to exist under the time of a Caretaker Government.

Drafting oversight
As the debate continued on the revocation of appointments, Leilani told the Court that it was a drafting oversight that had created such a situation and such things do happen.

Justice Tuatagaloa did not find it an oversight. She pointed out section 67(6) of the LTC Act that specifically said “the appointments made under the 1981 Act are hereby revoked, and such revocation is placed in the Savings and Transitional Provisions.”

Section 6 LTC Act 2020 “An appointment under the repealed Act that is not provided for in this Act is revoked at the commencement of this Act.”

Tamati pointed out that the President was consulted during the preparation of the amendments and was aware that Section 67 never intended to apply to the appointment of the President, Vice President and judges of the Land and Titles Court.

She insisted it was a drafting error by those who drafted the Act.

“What we have here is an awkward situation where it revoked the appointments of judges leaving a very important arm of government un-administered,” said Tamati.

“So are you asking the Court to allow the court staff so that LTC can operate, meanwhile there is that revocation of their positions that is currently the law. Are we going against the rule of law we are supposed to be upholding?” asked Justice Tuatagaloa.

“With due respect Your Honour, yes,” Tamati responded.

She stated the situation was absurd enough that judges are no longer qualified and that poses another question. What happens to all the decisions the judges made since the 5 January 2021?

LTC could face lawsuits from the public
Chief Justice Perese also pointed out that concern; the legality of those decisions already made.

Su’a also raised her concern because the decisions were made by officers who were not properly qualified to do so.

Tamati continued to argue that people are waiting for their matters to be dealt with and people will question and judge the system.

Justice Tuatagaloa interrupted and said “if the Court allows the LTC to sit, the very same people they are concerned about can turn around and sue LTC because they do not have the authority or the lawful capacity to adjudicate their matters.”

She further added that unless that part of the LTC Act 2020 is amended by way of removing that provision and putting in place a provision to save those positions; and that matter is for Parliament.

The decision is reserved.