Alienation of Customary Land Act 1965

	Home \| Databases \| WorldLII \| Search \| Feedback Consolidated Acts of Samoa 2018

AN ACT to provide for the leasing and licensing of customary land for certain purposes.
[Assent and commencement date: 15 October 1965]

1. Short title – This Act may be cited as the Alienation of Customary Land Act 1965.
2. Interpretation – In this Act, unless the context otherwise requires:

“agricultural purpose” includes horticulture and fisheries (but not fish canning);

“authorised purpose” means a public, hotel, industrial, commercial, business or religious purpose;

(a) in relation to any customary land or any interest therein, includes any Samoan who is entitled in equity to occupy the same or to share in the occupation thereof or to have the income therefrom or a share in that income paid to or held in trust for him or her, or who is entitled in equity to any such benefit contingently or in reversion; and

(b) does not include any Samoan who holds any such land or interest only by way of trust, mortgage or charge;

“business purpose” includes an agricultural and a pastoral business purpose;

“Chief Executive Officer” means the Chief Executive Officer of the Ministry responsible for lands;

“Court” and “Land and Titles Court” means the Land and Titles Court referred to in Article 103 of the Constitution;

“customary land” has the same meaning as in Article 101 of the Constitution;

“hotel” means a residential building which is designed and intended to be used for providing board and lodging for reward for 6 or more persons, whether or not it is designed and intended to be used also for the sale of liquor;

(a) manufacturing or processing or both of food, beverages, tobacco, textiles, textile goods, wearing apparel, footwear, leather, leather products, furniture, fixtures, wood and cork products, paper and paper products, printing, publishing, rubber products, chemicals and chemical products, petroleum and coal products, metallic and non-metallic mineral products, electrical machinery, apparatus, appliances and supplies, transport equipment and other machinery and metal products;

(b) generation, transformation and distribution of electrical energy, gas or steam for trade or sale;

(f) the business of pasteurising milk carried on for trade or sale otherwise than on a farm or plantation;

(g) an offensive trade within the meaning of section 2 of the Health Amendment Act 1965 carried on for trade or sale; and

(h) any other industry in which 3 or more persons are engaged or employed in manufacturing or processing and packing raw materials or goods for trade or sale, whether by means of electrical energy, gas, steam or any mechanical power or appliance or not;

“Registrar” means the Registrar of the Court, and includes a Deputy Registrar;

“Samoan” means a person who is a citizen of Samoa, and has any Samoan blood;

(For eligibility to hold a Matai title, see section. 6 of the Samoan Status Act 1963.
For definition, duties and registration of Matai’s, see the Land and Titles Act 1981.
For the Land and Titles Court, see Part VI of the Land and Titles Act 1981: this Court decides disputes in respect of customary land law, which includes Matai titles.
The Commission set up under the Land Titles Investigation Act 1966 has no authority to make any determination or order as to the ownership or control of customary land; see section 20 of that Act.)

3. Prohibiting some leases and licences – It shall not be lawful to lease or licence any customary land for any agricultural or pastoral purpose to any Samoan who is not a holder of a Matai title.

(As to Matai titles, see section 6 of the Samoan Status Act 1963.)
(The Public Trustee may not be appointed manager of unclaimed customary land; see section 71(2)(a), (b) of the Public Trust Office Act 1975. See the notes to section 2 of this Act.)

4. Power to grant lease or licence – (1) Subject to section 3, the Minister, if in his or her opinion the grant of a lease or licence of any customary land or any interest therein is in accordance with Samoan custom and usage, the desires and interests of the beneficial owners of the land or interest therein and the public interest, may grant a lease or licence of that customary land or interest therein as trustee for such owners:

(b) if the authorised purpose so approved is a hotel or industrial purpose, for a term not exceeding 30 years, with or without a right or rights of renewal for a term or terms not exceeding an additional 30 years in the aggregate, as may be approved by the Minister;

(c) if the authorised purpose so approved is not a hotel or industrial purpose, for a term not exceeding 20 years with or without a right or rights of renewal for a term or terms not exceeding an additional 20 years in the aggregate, as may be approved by the Minister;

(d) for such rent or other consideration payable to the Chief Executive Officer, reviewable or not, and if reviewable at such intervals or on such occasions and in such way, as may be approved by the Minister; and

(e) subject to such other covenants, conditions and stipulations as may be approved by the Minister.

(Proviso repealed by Forestry Management Act 2011, No.3)
(2) For the avoidance of doubt, an interest in the lease or licence of customary land that the Minister can grant by subsection (1) includes a mortgage of the interest of the lessee or licensee.
(3) The process of registration and discharge of mortgages in the Land Titles Registration Act 2008 applies to the registration and discharge of such mortgages.
(4) Nothing in this Act may be construed or implied:

(a) to permit the alienation or disposition of customary land in a manner prohibited by Article 102 of the Constitution; or

(b) to permit or deem ownership in any customary land to vest in a person otherwise than as determined under any law dealing with the title to customary land.

(As to the Public Trustee, see the note to section 3.
As to wills of customary land, see the definition of real estate in section 2 of the Wills Act 1975.)

5. Application to grant lease or licence – Wherever any Samoan claiming to be a beneficial owner of any customary land or of any interest therein desires that the Minister shall grant a lease or licence of such land or of any interest therein under the powers conferred by section 4, the Samoan shall make written application in that behalf to the Chief Executive Officer.

6. Form of application – (1) An application under section 5 shall propose a beneficial owner or beneficial owners of the customary land or interest therein desired to be leased or licensed as the agent or agents of all beneficial owners, to whom the Chief Executive Officer or the Chief Executive Officer of the Ministry of Finance may account for the rent or consideration to be derived from the lease or licence of that land or interest.
(1A) An application under section 5 shall also state the full names, occupation and address of the proposed lessee or licensee, and what the applicant and the proposed lessee or licensee propose as to:

(d) the rent or other consideration, when it is to be paid, and any rights of review thereof; and

(e) any other covenants, conditions and stipulations.
(2) An application under section 5 shall otherwise be in such form and give such information as the Chief Executive Officer may prescribe.

7. Requiring survey – If the application does not, in the opinion of the Chief Executive Officer, sufficiently describe the land or interest desired to be leased or licensed the Chief Executive Officer may require the applicant to provide or pay for a survey of such land or interest, and may refuse to proceed further until such survey has been provided, or paid for by the applicant and made by the Chief Executive Officer.

8. Publishing of application–(1) Except as provided in subsection (3), the Chief Executive Officer shall publish in the Savali the main particulars of each application received by him or her under section 5, including the names of the proposed agent or agents.
(2) With each such publication of particulars of an application, the Chief Executive Officer shall publish in the Savali a notice fixing a date or period, not being less than 3 months from the date of the publication, not later than or within which, and a place at which, written objections to the proposed leasing or licensing or to the proposed agent or agents may be lodged with the Registrar by any Samoan who claims that he or she would be affected thereby.
(3) Subsections (1) and (2) do not apply:

(a) if the Samoan who makes the application under section 5 and the proposed agent or agents are held by the Land and Titles Court to be beneficial owners of the customary land or interest therein in respect of which the application is made; or

(ii) particulars of the first application have been duly published in the Savali; and

(iii) the beneficial owner making such second or subsequent application is the same person as the beneficial owner who made such first application; and

9. Disposal of objections – The Registrar shall, as soon as convenient after receiving any objection, prepare, sign and file a petition to the Land and Titles Court for the purpose of having that objection heard and disposed of, and send a copy of the objection to the Chief Executive Officer, and another copy to the applicant.

10. Preparation and completion of lease or licence – (1) Within 1 year of the date when all objections to the application have been disposed of, or when the date or the period not later than or within which objections may be lodged has expired without any objection being lodged, and when the Chief Executive Officer has informed the applicant that the Minister is of the opinion as required by section 4, whichever later occurs:

(a) the applicant shall have a draft of the lease or licence complying with the Minister’s approvals under section 4 prepared by his or her solicitor at the cost of the proposed lessee or licensee, and submitted to the proposed lessee or licensee and the Chief Executive Officer for perusal;

(b) when the draft has been approved by the applicant, the proposed lessee or licensee and the Chief Executive Officer, the applicant shall have 1 original and 2 carbon copies typed and submitted first to the proposed lessee or licensee, and after execution by him or her to the Chief Executive Officer for execution by the Minister; and

(c) the applicant shall then register the lease or licence with the Registrar of Land.
(2) On written application being made to the Minister before or after the expiration of that period of 1 year, and on proof to the satisfaction of the Minister that the action required by subsection (1) has not been or cannot be completed within that period because of some reasonable cause, the Minister may extend that period.

11. Payment of rent or other consideration – (1) Every such lease or licence shall operate as if it was a lease or licence as the case may be of public land, but the rent or other consideration derived therefrom shall be received by the Chief Executive Officer in trust for the beneficial owners of the land or interest therein as the case may be.
(2) It is unlawful for any lessee or licensee under any lease or licence granted under this Part of this Act to pay any such rent or other consideration directly to any such beneficial owner.
(3) The Public Finance Management Act 2001 applies to such rent or other consideration received by the Chief Executive Officer, except that no charge for the Financial Secretary’s services shall be deducted.
(4) The Chief Executive Officer or the Chief Executive Officer of the Ministry of Finance may account as statutory expenditure for such rent or other consideration, plus any amount of interest certified by the Chief Executive Officer of the Ministry of Finance to have been earned thereon, and less any unpaid fees and commission payable to the Chief Executive Officer in the matter, to the agent or agents of the beneficial owners.
(5) Neither the Chief Executive Officer nor the Chief Executive Officer of the Ministry of Finance nor the Government is liable to pay any rent or other consideration or damage to any person who claims that he or she is a beneficial owner of the land or interest from which that rent or other consideration arose and has not received his or her share thereof from the agent or agents but nothing in this Act prevents any such person prosecuting a claim for his or her share against the agent or agents.

(As to subsection (1) and the term "public land", see Articles 101 (1) and (4), and 123 (2) of the Constitution; and as to leases or licences thereof, see the Land Ordinances 1959.)

12. Fees and commission – The Chief Executive Officer shall receive and take on behalf of the Ministry of Finance such fees and commission for or in respect of any act, matter or thing done by him or her under this Act as are specified in Schedule 1.

13. Prepayment of fees – Subject to section 14, all fees payable under this Act and specified in Schedule 1 shall be prepaid in cash by the proposed lessee or licensee, and the Chief Executive Officer may refuse to accept any application or objection or to take any action thereon unless the fees have first been paid.

14. Dispensing with fees or commission – If it appears to the Minister that any person is unable, or ought not to be called upon, to pay or bear any fee or commission specified in the First Schedule, the Minister may dispense with the payment or taking thereof in whole or in part or may authorise a refund thereof in whole or in part out of the Treasury Fund as statutory expenditure, subject in any case to such terms as the Minister thinks fit.

15. Land and Titles Court fees – Fees shall be charged for all matters coming before the Land and Titles Court under this Act at the rates and in the amounts specified in Schedule 2 to the Samoan Land and Titles Protection Ordinance 1934, as substituted by section 2 of the Samoan Land and Titles Protection Amendment Act 1968.
(Section 2 of the Samoan Land and Titles Protection Amendment Act 1968, being the corresponding enactment in force at the date of this consolidation, has been substituted for the repealed section 7 of the Samoan Land and Titles Protection Amendment Ordinance, 1957)

16. No distress for rent – Despite anything to the contrary in any Act, or in any rule of law, no lease or licence granted under this Part shall contain a power to distrain for rent, and it shall not be lawful for any person to distrain for rent thereunder.

17. Surrenders – The Minister, if in his or her opinion the surrender of any lease or licence of customary land or any interest therein granted under this Part is in accordance with the desires and interests of the beneficial owners of that land or that interest as the case may be, may accept that surrender.

18. New lease or licence – Nothing in section 4, on or before the surrender or the expiration of the term or last renewed term of a lease or licence, prevents the granting of a new lease or licence to the lessee or licensee under the expired lease or licence of the land or interest affected thereby, with or without any additional land or interest, subject to compliance by all parties with this Act.

Item	Nature of Fee or Commission	Amount $
1.	Application to grant lease or licence including advertisement in the Savali and execution.	5.00
2.	Perusal of draft lease or licence	2.10
3.	Objection to application to grant lease or licence or to the proposed agent or agents (to be applied towards fees payable to the Land andTitles Court).	5.00
4.	Commission on rent or other payments of an annual or periodicalnature received by the Chief Executive Officer on behalf of a Samoan.	5%
5.	Commission on purchase money or any money not being paymentsof an annual or periodical nature, received by the Chief Executive Officer on behalfof a Samoan. But the maximum commission in respect of any one transaction shall not exceed $4.00.	5%

1.	The Samoan Land and Titles Protection Ordinance 1934 No. 2: Parts I, II and III comprising sections 3 to 12 inclusive.
2.	The Samoan Land and Titles Protection Amendment (No.2) Ordinance 1937 No. 6: sections 2 and 3.
3.	The Samoan Land and Titles Protection Amendment Ordinance 1957 No. 4: Items 1, 2, 6, 7, 8 and 9 of the Third Schedule.

This Act has been revised by the Legislative Drafting Division from 2008 to 2018 respectively under the authority of the Attorney General given under the Revision and Publication of Laws Act 2008.

(a) Amendments have been made to conform to modern drafting styles and to use modern language as applied in the laws of Samoa.

(b) Amendments have been made to up-date references to offices, officers and statutes.

(d) Other minor editing has been done in accordance with the lawful powers of the Attorney General.

$Z:\Legal information\Consolidation of Laws 2016\Hermann.jpg$
Lemalu Hermann P. Retzlaff
Attorney General of Samoa

This Act is administered by
the Ministry of Natural Resources and Environment.

Consolidated Acts of Samoa 2018

Alienation of Customary Land Act 1965