IN THE COURT OF APPEAL OF SAMOA
The estate of Nuumoe Duffy & Ors v The Public Trust & Ors [2021] WSCA 8 (10 December 2021)

Case name: 	The estate of Nuumoe Duffy & Ors v The Public Trust & Ors	
		
Citation: 	[2021] WSCA 8 	
		
Decision date: 	10 December 2021	
		
Parties: 	THE ESTATE OF NUUMOE DUFFY AND OTHERS (Appellants) and THE PUBLIC TRUST AND OTHERS (Respondents)	
		
Hearing date(s): 	06 December 2021	
		
File number(s): 	CA31/19	
		
Jurisdiction: 	CIVIL	
		
Place of delivery: 	Court of Appeal of Samoa, Mulinuu	
		
Judge(s): 	Honourable Chief Justice Perese
Honourable Justice Blanchard
Honourable Justice Harrison	
		
On appeal from:	Supreme Court of Samoa	
		
Order:	The appeal must be allowed and the judgment must be set aside. We decline to order retrial in view of the passage of time since the relevant events and the deaths of the parties and principal witnesses.
In circumstances where the result is beyond the control of either party there will be no order for costs .
The parties are not without remedies, however. In National Pacific Insurance this Court referred to the parties’ possible entitlement to compensation from the government for breach of their guaranteed rights under Article 9 (1) of the Constitution of the Independent State of Western Samoa to a hearing of their claims within a reasonable time and, by inference, a right to judgment within that period.  It will be for them to take independent legal advice if they wish to pursue that avenue further. The government should also consider indemnifying both parties against their costs incurred in this appeal.	
		
Representation: 	N. Schuster for the Appellants
C. Vaai for the Respondents	
		
Catchwords: 	Land dispute – delay in judgment 	
		
Words and phrases:		
		
Legislation cited:		
		
Cases cited:	Boodoo v The Attorney General for Trinidad and Tobago [2004] 1 WLR 1689;
Cobham v Joseph Fleet (British Virgin Islands) [2000] UKPC 49;
Jervis v Skinner [2011] UKPC 2;
National Pacific Insurance Ltd v Vaivaimuli Corporation Ltd [2020] WSCA 3; 
The Public Trustee v Duffy [2019] WSSC 20.	
		
Summary of decision:		

CA31/19

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

BETWEEN:

THE ESTATE OF NUUMOE DUFFY AND OTHERS

Appellants

A  N  D:

THE PUBLIC TRUST AND OTHERS

Respondents

Coram:		Honourable Chief Justice Perese
		Honourable Justice Blanchard
		Honourable Justice Harrison

Counsel:	N. Schuster for the Appellants
		C. Vaai for the Respondents

Hearing:	06 December 2021

Judgment:	10 December 2021	

JUDGMENT OF THE COURT
Introduction
1. 	This appeal from a judgment in the Supreme Court of the late Chief Justice, Sapolu CJ, raises the discrete question of whether this Court should allow an appeal irrespective of the appearance of merits in the judgment notwithstanding that 21 years had elapsed between the dates of trial and delivery of judgment and events had occurred from which it may be inferred that the Judge had misplaced or did not have available to him parts or all of the original trial record or his own notes for the purposes of writing his judgment.
Facts
2. 	The relevant facts fall within an orthodox framework. The late Nuumoe Duffy and her late brother owned a property in Apia as tenants in common in equal shares. The late Nora Aiono claimed that sometime in 1955 or 1956 she and Mrs Duffy entered in to an oral agreement whereby Mrs Duffy agreed to sell her half share in the land to Mrs Aiono for the sum of 600 pounds. Mrs Aiono died in 1984. The trustees in her estate did not apply to the Supreme Court for an order enforcing the alleged contract until 1994. 
3. 	In Mrs Aiono’s absence her son, Taito, was the principal witness for her estate at trial. The thrust of his account was that he was present one day when Mrs Duffy visited his mother’s home; that at his mother’s behest and in Mrs Duffy’s presence he counted out 600 pounds in cash which he understood was the agreed purchase price of the land; that the two women then left his mother’s property for the purpose of visiting a lawyer; that his family subsequently took possession of and fenced half of the land from which they conducted a small manufacturing business; that his family enjoyed continual possession without interference from Mrs Duffy; and that tenants paid his family rental for the use of part of the land but never paid rent to Mrs Duffy. In her own defence at trial Mrs Duffy gave evidence denying the existence of an agreement or the payment of money. 
4. 	The late Chief Justice was satisfied that the parties had entered into a binding agreement for sale and purchase of the land. He preferred Taito’s evidence where it conflicted directly with Mrs Duffy’s evidence. An example is found in his rejection of her account of arranging for the destruction of the fence erected by Mrs Aiono’s family and frequently disputing their informal claims to ownership. He made sustained adverse findings against her by identifying material inconsistencies in her account with documentary evidence which he recited comprehensively. 
5. 	The Judge held that while the law of Samoa provided that a contract for the sale of land is unenforceable unless in writing, it would be unconscionable for Mrs Duffy to rely on this defence given his factual findings that Mrs Aiono paid the agreed purchase price and took possession of the land in part performance of their contract. He granted Mrs Aiono’s estate specific performance of the contract and ordered Mrs Duffy to execute a memorandum of transfer of the land. 
6. 	Mrs Duffy died in the interim between the dates of trial and delivery of judgment. The trustee and executor of her estate has pursued this appeal in that capacity.
7. 	The appeal is brought on four grounds: (1) the Judge erred in fact and law in finding the existence of a contract between the parties; (2) the judgment is unsafe given the lapse of 21 years between the dates of trial in March 1998 and delivery of judgment on 16 May 2019; (3) the Judge requested counsel to provide relevant documents many years after the trial; and (4) the delay has negated Mrs Duffy’s right to a fair trial. As will become apparent, it is unnecessary for us to address the first ground on the merits, and the remaining three grounds merge into one.
Analysis
8. 	In National Pacific Insurance Ltd v Vaivaimuli Corporation, this Court recently reviewed the principles to be applied on an appeal from a judgment given by the Chief Justice 22 years after the trial in the Supreme Court. It is unnecessary for us to replicate its examination of the leading Commonwealth authorities. It is sufficient to note its conclusion that in cases of extreme delay the appellate Court must ask itself whether for that reason alone the decision is so unsafe that it would be unfair or unjust to the parties to allow it to stand. In this respect the Court endorsed the statement of Lord Carswell for the Privy Council in Boodhoo that delay in giving judgment may affect its quality to such an extent that it must be set aside.
9. 	In National Pacific Insurance the Court was satisfied that a delay of 22 years, where the judgment was just five paragraphs long and devoid of reasoning and justified a criticism of superficiality, was of itself so extreme as to satisfy that threshold of unsafety. By contrast the judgment under appeal here had an appearance of being comprehensively and carefully reasoned. However, by virtue of an additional factor which was also present in National Pacific Insurance, that distinction is not enough to save it.
10. 	That decisive factor emerges from a chronology prepared by Ms Schuster for Mrs Duffy’s estate. She drew our attention to a number of exchanges between the Court Registry and counsel for the parties commencing on 4 March 2003 when Mrs Duffy’s then counsel wrote to the Registry inquiring when judgment might be delivered. Her letter went without reply. Counsel wrote again a year later, on 9 March 2004, advising of Mrs Duffy’s recent death. Two months later the Registrar advised that the late Chief Justice was “too busy with other matters for the time being.”
11. 	On 22 August 2006, after a two year hiatus, counsel for Mrs Aiono’s estate wrote to the Registry inquiring about the judgment. Then in unexplained circumstances on 11 September 2006 the then counsel for Mrs Duffy’s estate filed with the Registry a statement of facts based on his notes taken at the trial but excluding evidence given under formal examination. On the same day Mrs Aiono’s estate’s counsel filed a brief from a witness given at the trial.  These steps must have been taken at the request of the late Chief Justice for the reason that original documents tendered at trial had been lost or misplaced and the Judge was seeking to reconstruct the record.
12. 	Subsequent events reinforce this inference. In 2009 both sides wrote letters of inquiry to the Registry about the judgment, without success. A letter from Mrs Aiono’s estate’s counsel to the Registry on 12 May 2011 referred to an appearance before the late Chief Justice in Chambers in 2010 when counsel handed over briefs of evidence from both parties. The Judge reportedly advised that his decision would be forthcoming within three months. This optimism proved to be misplaced. The parties continued through 2011 to 2014 to correspond with the Registry about the fate of the anticipated judgment, again to no avail. Then, in early May 2019, coincidental with the late Chief Justice’s retirement, Mrs Aiono’s estate’s counsel filed at his request copies of the amended pleadings.
13. 	These events satisfy us that while documents produced in evidence as exhibits had been retained, the formal court record of pleadings, briefs and evidential transcripts and any notes made by the late Chief Justice had been lost or misplaced sometime after the trial’s completion and that he sought to reconstruct a fragmented record from material which he requested of counsel, either directly or through the Registry. His  analysis of Mrs Duffy’s evidence relies expressly on her counsel’s own statement of facts. He said that the document “…shows the evidence that was given by the defendant at the hearing.” It provided the foundation for his subsequent adverse credibility findings against Mrs Duffy which were in turn central to his conclusion on the existence of a binding contract for sale of the land.
14. 	The only available inference is that when writing his judgment the late Chief Justice did not have available critical components of the trial record or access to his  personal notes of impressions of witness’s evidence made progressively as an aide memoir during the trial. Impressions may have endured. But his memory of the details of a particular witness’s evidence could not possibly have survived alone a lapse of 21 years especially with all the competing demands on the Judge’s time and resources through that period. His credibility findings could only have been based on material, some of it reconstructed by counsel, supplied many years after trial, and many years before judgment was delivered, and not on an independent judicial evaluation of the evidence of witnesses as it was given on oath at trial. The cumulative effects of the passage of time must have severely compromised the essential elements of the Judge’s decision making faculties. A judgment delivered in these circumstances is plainly unsafe and must be set aside. It is unnecessary to establish the additional element of particular errors which are attributable to the delay. 
15. 	As this Court did in National Pacific Insurance, we can only express our sympathies to the parties. This result was beyond their control . Both sides consistently reminded the late Chief Justice through the Registry of the compounding effects of the delay in issuing judgment. Their patient and respectful approaches to the Registry for assistance were ignored. Their fundamental right to a timely determination of their dispute was denied through no fault of their own. They are the innocent victims of an inexplicable and inexcusable delay in doing justice. 
Result
16. 	The appeal must be allowed and the judgment must be set aside. We decline to order a retrial in view of the passage of time since the relevant events and the deaths of the parties and principal witnesses.
17. 	In circumstances where the result is beyond the control of either party there will be no order for costs.
18. 	The parties are not without remedies, however. In National Pacific Insurance this Court referred to the parties’ possible entitlement to compensation from the government for breach of their guaranteed rights under Article 9 (1) of the Constitution of the Independent State of Western Samoa to a hearing of their claims within a reasonable time and, by inference, a right to judgment within that period. It will be for them to take independent legal advice if they wish to pursue that avenue further. The government should also consider indemnifying both parties against their costs incurred in this appeal. 
HONOURABLE CHIEF JUSTICE PERESE
HONOURABLE JUSTICE BLANCHARD
HONOURABLE JUSTICE HARRISON