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Tuiletufuga v Leaupepe [2010] WSSC 77 (2 July 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

CP.191/07

IN THE MATTER: of the Supreme Court (Civil Procedure Rules) 1980

BETWEEN:

LAWRENCE MAX TUILETUFUGA
Businessman and his wife
JASMA REGINA TUILETUFUGA
Businesswoman
both of Lotopa
First Plaintiff

AND:

LYNETTE TUTASI PEREIRA
Student and her sister
ANGELICA TUMUSA PEREIRA
Student
both of Lotopa
Second Plaintiff

AND:

KASIANO LEAUPEPE
of Palisi Catechist
First Defendant

AND:

MULITALO GALUEFA MATAIA
of Palisi Public Servant
Second Defendant

Counsels: Mr R.Faaiuaso for the first & second plaintiffs
Ms R. Papalii for the first & second defendants

Judgment: 2 July 2010

JUDGMENT OF NELSON J.
(Application to set aside judgment)

Background:

[1] By statement of claim dated 27 November 2007, the plaintiffs issued proceedings seeking the removal of those parts of the defendants buildings and structures encroaching onto their freehold property at Palisi in Apia. The plaintiffs and defendants are neighbours. The defendants property is occupied by the second defendant who is the son-in-law of the first defendant. It appears the plaintiffs have been trying since 2004 to have the defendants remove the said encroachment without success. The plaintiffs also sought an order restraining the defendants, their relatives, agents and workmen from interfering with the lawful enjoyment of their lands.

[2] After proceedings were served, the second defendant filed a four paragraph statement of defence raising very little by way of a defence of substance. The first defendant appears not to have done anything in respect of the action. This notwithstanding the proceedings were on 18 February 2008 adjourned for hearing the week commencing 21 September 2008. In accordance with normal practice, at the Supreme callovers the week prior to hearing the matter was set down to be heard on 26 September 2008 before me.

[3] On that date proceedings were called but no appearance was made by either the defendants or defence counsel. Plaintiffs counsel advised me that the matter had been on the callover list for the previous few weeks and as with last week, defence counsel was either present personally or represented by other counsel. Defence counsel was therefore aware of the hearing date. The registrar advised me counsel could not be located that morning so at 10.15am the matter proceeded as the plaintiff was ready to proceed and had attended with his witnesses. A minor amendment was made by the plaintiff to paragraph 8 of the statement of claim in respect of the encroaching structures and the plaintiff proceeded with formal proof.

[4] Having heard the evidence and the plaintiffs tale of what appeared to be unnecessary procrastination and delay, I issued the orders sought. The plaintiffs were also awarded costs on 6 October 2008 following receipt of their memorandum re same. The court file shows these orders were served on the first defendant on 28 October 2008 and on the second defendant on the 29 October 2008. The orders gave the defendants 60 days to comply.

[5] As the defendants failed to comply committal proceedings for contempt of court were issued by the plaintiffs on 22 May 2009. On 22 June 2009 at first mention, defence counsel appeared and the matter was adjourned for two weeks for the respondents to file and serve a response to the application. On 6 July 2009 it was further adjourned by the court to 20 July 2009 for mention. No reason for that adjournment is on file. On 20 July 2009 it was adjourned again to 3 August 2009 for the parties to attend to a settlement. On 3 August 2009 it was adjourned to 6 August 2009 for the respondents to appear and to set a hearing date if the respondents opposed the motion for contempt. It is not clear if defence counsel appeared that particular day but according to plaintiffs counsel, no one appeared and the Chief Justice adjourned it to the following day 7 August 2009 to give the respondents one final chance to appear. There was still no appearance by either the respondents or their counsel on 7 August 2009 and the court accordingly issued warrants of arrest to bring the alleged contemnors to court.

[6] The warrants were executed and on 14 August 2009 the respondents appeared before me. For the first time they advised the court that their non-appearance at trial was because their lawyer failed to advise them of the trial date. They also said they had advised their counsel about the matter and indicated that he still acted for them. As applicants counsel did not press the matter of committal too strongly, I remanded the defendants on bail for defence counsel to appear. A further two weeks extension was granted by the court at the next calling of this on 28 September 2009. On that day new defence counsel appeared and was granted time to file an application to set aside the original formal proof judgment.

[7] This is the current application that is before the court and it is based on the relevant parts of rules 140 and 141 of the Supreme Court Civil Procedure Rules 1980. It alleges a breach of natural justice in the court conducting a hearing in the absence of the defendants and their counsel and asserts that they have plausible defences in respect of the original proceedings. It seems clear that their former counsel Mr Toailoa no longer represents the defendants. Not surprisingly the application was vigorously opposed by the plaintiffs who said that enough time and chances had been given to the defendants. Although the defendants are presently the applicants I will for ease of reference continue to refer to them as the defendants and to the present respondents as the plaintiffs.

The law:

[8] As defence counsel correctly points out, the application is governed by Rules 140(1) and 141(1) which provide as follows:

"140 Setting aside Judgment or Order given in Absence of Defendant - (1) Where in any proceedings a defendant, or a defendant to a counter-claim, does not appear at the hearing and a judgment or order is given or made against him in his absence, the judgment or order and any execution thereon may on application be set aside and a new hearing may be granted."

"141 Rehearing - (1) The Court shall in every proceeding have the power to order a rehearing to be had upon such terms as it thinks reasonable, and in the meantime to stay proceedings:

Provided that a rehearing shall not be granted on an application made more than fourteen days after the judgment or order, unless the Court is satisfied that the application could not reasonably be made sooner."

Also relevant are Rules 141(5) and 141(8) which provide:

"141 (5) An application for a rehearing may be heard by the Judge who heard the proceedings or, if that Judge is not available, by any other Judge

(8) The Court upon rehearing may either affirm, reverse or vary the judgment."

[9] The tests applicable to applications for re-hearing were identified by the Court of Appeal in Lauano v Samoa National Provident Fund [2009] WSCA 3 as being that the applicants must establish:

1. a substantial ground of defence;
   
2. a reasonable justification for the delay;
   
3. that the plaintiff will not suffer irreparable harm if the judgment is set aside.
   

[10] As to the first ground the defendants submit that the heart of their defence is the issue of the correct boundary of their land. They alleged that the property was mis-described to them by the Roman Catholic Church who were the original owners and from whom the land was obtained. With respect this is no defence. Because church surveyors showed the defendants the wrong boundary line does not negate the registered transfers of title to the neighbouring plaintiffs. The defendants remedies in that case lie against the church and/or its surveyors for the wrong advice or misrepresentations made, not against an innocent bona fide third party purchaser for value without notice.

[11] Furthermore on the facts the existence of such a defence is in my view highly dubious. The registered plans and evidence I sighted indicates the contrary, namely that the plaintiffs properties have been properly surveyed and pegged and an aerial survey confirmed the extent of the defendants encroachment. The defendants so called defence is at best "shadowy". As noted in the Supreme Court in Lauano [2008] WSSC 70:

"the onus of establishing a substantial ground of defence is on the defendant. And the ground of defence must be substantial, not trivial shallow or in the language of plaintiffs counsel "shadowy". The defendant must show a defence of sufficient substance to justify delaying the plaintiff in obtaining the fruits of the judgment: Sandall v Cardna (unreported) 18th May 1987 where Hardie Boys J in the Blenheim High Court put the question thus – "Does the defendant have a defence which ought to be heard?" Not every defence would satisfy such a test, each case must be assessed on its merits."

In addition there are also indications from the evidence that I have sighed that the defendants acknowledged their mistake to the Church and agreed at one stage to remove the offending structures, an agreement they have since decided to renege upon. All in all this limb falls in favour of the plaintiff.

[12] The second factor is reasonable justification for the delay. Nothing has been filed to explain the defendants and their former counsels failure to attend the original trial date or to file proceeding challenging the formal proof judgment subsequently made within the required 14 days. The defendants cannot claim they were unaware of either matter as their former counsel was apprised of the original trial date by way of the various callovers and the defendants were personally served with the formal proof orders on 28 and 29 October 2008. The application to set aside was not filed until almost one year later. It is also apparent that warrants had to be issued to arrest the defendants in order to compel their attendance before the court. Their dilatory attitude is consistent with the drawn out history of this matter and does not reflect well on the defendants. In the absence of any reasonable explanation for the delay in filing the application challenging the formal proof judgment, this ground falls in favour of the plaintiffs.

[13] The third ground of irreparable harm. The delay in finalising this matter is canvassed in the plaintiffs affidavits filed for the purposes of this case. The plaintiffs have been unable to fully utilize their lands or enjoy the full benefits thereof, such has been the extent of the defendants encroachment. Setting aside the judgment will add to that harm. This factor also leans towards the plaintiffs.

[14] As to the overall justice of the matter there is nothing in the defendants favour. The application to set aside has no merit. It is dismissed. The formal proof judgment of 26 September 2009 is affirmed but with the variation that the defendants encroachments are to be removed forthwith. Costs on the present application of $500 are awarded to the plaintiffs. These are to be added to the costs previously awarded. While it is a matter for the defendants whether they or their previous counsel should pay these costs, all costs are also payable forthwith.

JUSTICE NELSON