IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

CP 276/09

BETWEEN:

ALEXANDER ELI JENNINGS (Junior),
of American Samoa, Administrator
Plaintiff

AND:

The estate of IOANE ONESEMO
of Tufuiopa, Pastor, and 
ALATAUA ONESEMO of Tufuiopa, Widow
Defendants

Presiding Judge: Justice Slicer

Counsel: V G Kruse for Plaintiff
A Roma for Defendants

Hearing: 24 May 2010
Written Submission: 24 May 2010
Judgment: 11 June 2010

JUDGMENT OF SLICER J

1.	In 2000, Wallace Jennings failed in his action for trespass against Ioane Onesemo and Alataua Onesemo both of Tufuiopa. The Defendants succeeded on the basis of their adverse possession and Jennings was ordered to transfer to them his right title and interest in the disputed land registered in Volume 2 Folio 22 of the Land Register and delineated on Plan 3893. In his reasons for judgment (Jennings v Onesemo [2000] WSSC 26) the trial Judge found that;

"…there was discontinuance of possession in 1975 when the estate voluntarily relinquished possession (when Alofaaga left for New Zealand) and other persons (the defendants) came into possession. They took factual possession and, by constructing a house on the disputed land, they exercised a significant degree of physical control. The defendants, by constructing a house on the disputed land, dealt with the disputed land in the way an occupying owner might have been expected to deal with it and to show that no-one else had done so. It is hard to imagine stronger evidence of adverse possession than the construction of a house on the disputed land. The defendants intended more than to trespass; they used the land for their own home and excluded all others from it, including the plaintiff (in 1990).

"Hence there was actual possession from 1975 until at least 1990, a period of 15 years (more than 12 years). It appears to me that the statute clearly applies."

2.	The judgment was appealed on grounds of law which did not involve challenge to the factual findings made by the primary Judge. The appeal was dismissed and the judgment below affirmed (Jennings v Onesemo [2001] WSCA 1).

3.	In December 2009, the Plaintiff Alexander Jennings brought an action, as the Administrator of the estate of Wallace Jennings against the estate of Ioane Onesemo and the surviving original Defendant. The action sought to set aside the original primary and appellate judgments, an order of eviction and damages of $100,000.00.

4.	The action was based on a claim that the original judgment had been obtained through fraud and the perjured evidence of Ioane Onesemo, now deceased. In furtherance of his claim, the Plaintiff seeks to adduce fresh evidence, not discoverable at the time of trial, to show the falsity of the original evidence.

STRIKE OUT PROCEEDINGS

5.	The Defendants, by Notice of Motion, seek to strike out the action on the grounds that:

"1. THE Claim does not disclose a cause of action;

"2. THE Claim is effectively an application for rehearing and does not compile with Rule 141 (1) of the Supreme Court Civil Procedure Rules 1980;

"3. THE Claim could reasonably have been made sooner than the period of over 9 years since judgment of this Court was pronounced and later upheld by the Court of Appeal in its own judgment of 23 November 2001;

"4. THE new evidence that the Applicant seeks to rely on was in existence and reasonably discoverable at the time of the 2000 hearing in this Court and the 2001 hearing in the Court of Appeal;

"5. THE Defendant's / Applicant's only witness at the 2000 hearing and against whom the Applicant is alleging perjury therein has passed away and the Defendant / Applicant is accordingly prejudiced in the hearing of this application.

"6. THE Claim is an abuse of process." 

6.	They rely on the Rules of Court and the inherent jurisdiction of the Court in support of the Notice of Motion. The Supreme Court (Civil Procedure) Rules 1980, rule 70 provides:

"No Cause of Action - where in any proceeding no cause of action the judge may, on the application of the defendant order the proceedings to be struck out."

7.	The inherent power of the Court concerns proceedings which are 'frivolous, vexatious and/or an abuse of process' (Alii ma Faipule o Satapuala v Attorney General [2008] WSSC 88).

8.	The power either through rule or inherent jurisdiction ought to be exercised sparingly and 'where it is very plain and obvious that the Plaintiff's claim is so clearly untenable that it cannot possibly succeed" (Alii ma Faipule supra).

9.	The test is applied on the basis of the pleadings and the Court is required to treat the Plaintiff's allegations in the Statement of Claim as true. However, where fraud is alleged, mere suspicion or allegation is insufficient (Wentworth v Rogers (No.5) (1986) 6 NSWLR 534). In deference to the more demanding test required by an English Court in Paper Reclaim Limited v Aotearoa International HC AK CIV 2004-404-4278, the Plaintiff filed supporting affidavits in support of his application for the reception of fresh evidence. In that case Randerson J stated;

"Where a fraud proceeding of this kind is brought, the Court is being asked to entertain a collateral attack on a solemn and considered judgment of this Court outside the ordinary processes of appeal. There is an obligation on the Plaintiff to produce some probative evidence to support its claim when the Plaintiff applies to strike out…

In a proceeding such as this, I consider it appropriate on a strike out application for the Plaintiff to produce some probative evidence to support its allegations and to explain how and when the new material came to light. Otherwise, the ordinary processes of the Court by way of appeal could be subverted by the simple expedient of making allegations in the statement of claim without any factual foundation of any kind. Plainly, that could amount to an abuse of process."

10.	A not dissimilar approach has been taken by the Australian Courts as exemplified in Wentworth (supra) when the Court stated that in a case involving claimed perjury that;

"Firstly, the essence of the action is fraud. As in all actions of fraud, particulars of the fraud claimed must be exactly given and the allegations must be established by the strict proof which such a charge requires…

"Secondly, it must be shown by the party asserting that the judgment was procured by fraud that there has been a new discovery of something material, in the sense that fresh facts have been found which by themselves or in a combination with previously known facts, would provide a reason for setting aside the judgment…

"Thirdly, mere suspicion of fraud, raised by fresh facts later discovered, will not be sufficient to secure relief…

"Fourthly, although perjury by the successful party of witness may, if later discovered, warrant the setting aside of a judgment on the ground that it was procured by fraud, and although there may be exceptional circumstances where such proof of perjury could suffice, without more, to warrant relief of this kind, the mere allegation, or even proof of perjury will not normally be sufficient to attract such drastic and exceptional relief as the setting aside of judgment…

"It must be shown by admissible evidence that the successful party was responsible for the fraud which taints the judgment under challenge…" 

11.	The New Zealand approach is to require stringent tests of due diligence and the requirement for evidence which, on its production at trial would be so cogent that it would reasonably be expected to be decisive or if unanswered have that result (Shannon v Shannon [2005] NZCA 83). In that case the primary Judge had determined that since the allegations, as pleaded, were simply assertions they did not raise a reasonable cause of action, an approach ultimately upheld by the Court of Appeal.

12.	Any differences between the three jurisdictions is that of the stage at which the fresh evidence is to be considered or admitted. It is self evident that if a Strike Out Motion is refused the question of reception of the fresh evidence would require determination at trail. Reception and consideration of fresh evidence on a Strike Out Motion would defeat the purpose of a test based on the pleadings alone.

13.	The tests propounded in Wentworth are one for trial. It would be impossible to test the reception of evidence until matters of relevance, hearsay, privilege and the like were determined, a process impossible at the strike out stage. It would be impossible to assess cogency veracity and inconsistency absent the testing by cross-examination matters which are the province of a trial Court. But a mere and unfounded allegation of fraud made in a pleading enables a trial on factual issues at large without the conduct of a pre-trial motion. The tension between those competing principles is difficult to resolve.

14.	The Court will take the following approach:

1)	unless the pleading itself clearly grounds the allegation of fraud (clear and obvious perjury as in fabrication of a document readily shown to be false, or a false and disproven identity) a mere general assertion of fraud or perjury is insufficient to resist a strike out application;

2)	such an allegation must be supported by oath, documentation or official record.

15.	Here the Court will consider the pleading on its face and see whether it is supported by oath and detail. The affidavits will be read by the Court, untested by cross-examination, to determine if the Plaintiff has established a cause of action or is not maintaining a frivolous or vexatious case which is either an abuse of process or clearly untenable. The Court's acceptance of those affidavits for that strict purpose in no way governs any decision by a trial Court to admit them as fresh evidence. In all other respects the principles of 'fresh evidence', due diligence, delay and the like will be applied (Shannon (supra)). In taking this approach the Court is more in accordance with the Australian and New Zealand authorities.

FRAUD AND SETTING ASIDE A PRIOR JUDGMENT

16.	The Applicant is entitled to rely on a judgment already obtained. Although he must show that the Plaintiff has no reasonably arguable case, he is entitled to commence with the assumption that the judgment was properly entered. The setting aside of a considered judgment, other than by appellate process, is ordinarily forbidden. Fraud is an exception to the prohibition of a collateral attack on a judgment and the requirement to observe the doctrine of Res Judicata. Proof of mere fraud or perjury is not in itself sufficient. The fraud must have tainted the judgment, or as stated in Wentworth that:

'…the judgment was procured by fraud or that there has been a new discovery of something material, in the sense that fresh facts have been found which by themselves or in a combination with previously known facts, would, provide a reason for setting aside the judgment'.

17.	In Shannon, the New Zealand Court of Appeal stated the requirements to be:

1)	Evidence newly discovered since trial;

2)	That evidence could not have been found by the time of the trial by exercise of due diligence;

3)	The evidence is material in the sense that it would probably have affected the outcome;

4)	In a case involving perjury, the new evidence must be decisive and if unanswered must have that result. The fraud must be central to the result.

18.	While there is some difference between New Zealand and Australian authorities in relation to the second requirement, they are confined to the stringency of due diligence and the discovery of fresh evidence (Wentworth (supra); McHarg v Woods Party Limited [1948] VLR 496; Gould v Vaggelas [1985] 157 CLR 215; Toubia v Schwenke [2002] 54 NSWLR 46).

19.	In Shannon, the Court referred at paragraph 132 to 'new evidence, in the sense that the evidence must have been newly discovered by the Plaintiff since the original trial'.

THE JUDGMENT AND IMPUGNED FINDINGS

20.	The proceedings were commenced in October 1995. Wallace Jennings obtained a default judgment in December 1999. On 21 June 2000, the primary Judge set aside the judgment and permitted an expedited trial on the merits. His Honour found that 'there was little in dispute between the parties at the end of the evidence in (the) trial' and that 'the main dispute concerned matters of law'.

21.	The findings of the trial Judge can be summarised as follows:

1)	The disputed land was registered in the name of Alexander Eli Jennings in September 1933. He died in or about 1956.

2)	Logo Pakau a Tokelauan relative of Ioane Onesemo's grandfather lived on the land in the 1950's.

3)	In 1970, Alofaaga the Tokelauan wife of Ariu Leililo was given permission by Eliza Thompson, the aunt of Wallace Jennings and granddaughter of Alexander Eli Jennings to live on the land. Alofaaga performed the role as caretaker.

4)	In 1975, Alofaaga and her husband vacated the land and moved to New Zealand. In the same year Ioane and Alataua moved into occupation and subsequently built a dwelling thereon. They did not seek permission for their occupancy.

5)	On 9 November 1990, Wallace Jennings was appointed the Administrator of the estate Alexander Eli Jennings. In the following year or soon thereafter, the Administrator visited Ioane claiming his descent from the original proprietor and demanding that he and his wife leave. The couple refused to leave.

6)	Ioane and Alataua offered to purchase the land in April 1993 but negotiations failed.

7)	That the Defendants continued to occupy the land until the commencement of proceedings in October 1995 and were still residing there as at the date of trial.

8)	Their continued occupation amounted to adverse possession.

22.	The argument advanced by Wallace Jennings was that the failed purchase negotiations in 1993-4 constituted a fresh accrual of action as provided for by the Limitation Act sections 23, 24. It was this argument which both the trial Judge and Court of Appeal rejected.

CLAIM OF FRAUD

23.	The claim of fraud is that:

1)	Ioane and Alataua moved onto the land in 1976 not 1975 and had falsified the date.

2)	Alofaaga Vaafuti had given them permission to live on the land.

3)	They did not erect a permanent European-style house until 1987.

4)	Lavasii Levae and his family moved onto the land with the permission 'of the Jennings family in 1961 through to 1987.

5)	Between 1978 and 1981, Ioane and his wife lived at Malua Theological College where Ioane was studying and in American Samoa between 1983-6.

24.	Propositions 1, 3 and 4, if proved to be wrong or false, would not have affected the outcome. Any difference would not have vitiated the period of adverse possession. The circumstances of Alofaaga and any claimed permission (Proposition 2) is belied by the finding of the trial Judge that:

"As Eliza Thompson explained she discovered that possession of the disputed land had been discontinued by Alofaaga when her cousin Dick Carruthers told her (in about 1975) 'that he didn't see Alofaaga there' and she was then told by a relative called Helg that 'someone (else) is over there (referring to the defendant having moved in) and 'they are building a house or something".

25.	The calling of Alofaaga or its import will be separately considered. As to possession or occupancy, the question of study in another location or assignment to Savaii were matters easily canvassed at trial. Now they are but collateral attacks on the judgment. Occupancy and adverse possession encompass use, control and forms of occupancy. The evidence said to have been given by Ioane at trial identified in paragraph 8 (a) and (v) of the Statement of Claim was;

"Ioane and Alataua Onesemo and their family occupied the land continuously from 1975 to 1987."

26.	The evidence is consistent with a temporary absence from the residence and falls short of perjury or fraud.

27.	There is a fundamental flaw in the Plaintiff's argument. It was clear to the primary Judge that the first assertion of a competing right was made by Wallace Jennings in 1990-1991. By that time the Defendants had been in occupation over a period of 15 years. Even allowing for temporary absence the overall figure far exceeded the limitation period, a matter recognized by the trial Judge.

FRESH EVIDENCE

28.	The main 'fresh evidence' argument concerns the potential evidence of Alofaaga Vaafuti who it is said can show that the initial possession was by consent. Even if she would confirm her own permission, it does not follow that it was permission of Wallace Jennings or members of his family. The judgment acknowledged the presence of Alofaaga on the land and the time of her departure. The evidence of Eliza Thompson suggests that the family was unaware of the circumstances of Alofaaga's departure, a matter inconsistent with the claim of permission. The subsequent demand by Wallace Jennings and its manner is likewise inconsistent with an occupancy by licence.

29.	The Court has read the affidavits filed by the Plaintiffs in opposition to the Strike Out Motion. Much of their contents concern arguments concerning the correctness of the judgment, denials of events on findings open to the trial Judge. They are in the form of a rehearing of a case already decided or are a compilation of what others would say.

30.	The affidavit of Alofaaga differs. In her affidavit she sets out the history of her occupancy of the land. She states that in 1972, she informed her cousin Elisha (Eliza) Thompson of her wish to live on the land, a request consented to by Elisha. Relevantly she deposes;

"Ioane Onesemo and his wife asked if they could stay with us on the land so that they could send their children to school at Malifa. I gave them permission to stay with us in or about 1976."

31.	That evidence would be insufficient to establish her right to give a licence to the defendants on behalf of Wallace Jennings. It could not be said to be decisive of the issue of consent, an issue not raised at the trial. The judgment recognized that Eliza Thompson, who gave evidence on the hearing, had given Alofaaga permission to live on the land, and accepted her version of the circumstances of her departure.

32.	Alofaaga avers that she remained living on the land jointly with the Defendants until 1985, a significant difference from the evidence of Eliza. Adverse possession is a recognition that a party has a better title than the other involved in the litigation. The fact that another third part also shared in the occupancy is evidentiary but not decisive of the issue. Alofaaga asserts that Lavasii Levae and his family lived on the back portion of the 'estate land' with the permission of the family. The land in issue comprised 2r 30.9p and could not have extended to the 'back portion of the estate land.' It is irrelevant to these proceedings.

DUE DILIGENCE

33.	On either the Australian or New Zealand tests the Plaintiff has not shown that the proposed evidence could not reasonably have been discovered at trial or at least shortly thereafter. In his article Fraud or Fresh Evidence as Grounds to Set Aside Judgments [1961] 77 LQR 358, referred to in Shannon, DM Gordon states as a criteria that there must be 'evidence newly discovered since the trial.' Here the Plaintiff considers that the whereabouts of Alofaaga were discovered shortly after trial. Yet these proceedings were not commenced for some 9 years. More importantly her existence was known at the time of trial and the matter could have been raised in cross-examination and evidence of family consent of licence provided by Eliza. The fresh evidence is a simple statement that the witness herself gave permission. The evidence said to have been newly discovered must be that of something material which itself would be a reason for setting aside the judgment (Birch v Birch [1902] P130; Ronald v Harper [1913] VLR 311) or a new discovery of fresh facts which by themselves or in combination with previously known facts would provide a reason for setting aside the judgment (Wentworth v Rogers No.5 (supra); Boswell v Coaks (No.2) [1894] 86 LT 365; McDonald v McDonald [1965] 113 CLR 529).

LACHES AND PREJUDICE

34.	The judgment was published on 9 August 2000 and these proceedings not commenced until 21 December 2009. The Plaintiff is a beneficiary of the estate of Alexander Eli Jennings who died in 1965. The title to the land was not transferred to the Defendants as ordered by the Court in 2000. The Plaintiff did not commence proceedings but lodged a caveat on the land requiring the Defendants to take steps to freely deal with their land as recognized by this Court in 2000 and the Court of Appeal in 2001. The Plaintiff was aware of the whereabouts of the witness soon after the judgment. Ioane Onesemo, the only witness for the defence on the trial and against whom most serious allegations of fraud and perjury are made, is dead. The Defendants are highly prejudiced. Counsel for the Plaintiff contended that the prejudice could be met by evidence given by his widow, the Second Defendant. But she could not meet a claim by a witness called on a rehearing that the licence had been given to him personally in private during a previously unremembered meeting or conversation. 

35.	In so far as the discretion of the Court is engaged delay provides a cogent reason for dismissal of the application.

CONCLUSION

36.	The Plaintiff has not shown fraud or perjury of the nature or cogency sufficient to warrant the conclusion that as alleged, they would require the judgment to be set aside.

37.	The Plaintiff has not established that the fresh evidence if accepted at trial would have materially affected the conclusion reached in the judgment.

38.	The Plaintiff has not established that the delay following the 'discovery' of the fresh evidence does not significantly prejudice the capacity of the Defendants to properly present their cases.

39.	The Defendants have, on their Strike Out Motion, established that no cause of action sufficient to set aside the judgments of 9 August 2000 and 23 November 2001 exists.

40.	The Defendants have established, on their Strike Out Motion that it is plain and obvious that the Plaintiff's claim to set aside the two judgments is so clearly untenable that it cannot possibly succeed and is without substance in the sense as stated in Alii ma Faipule (supra).

41.	The Notice of Motion to Strike Out is upheld and the action of the Plaintiff is dismissed.

JUSTICE SLICER