SUPREME COURT OF SAMOA
Netzler v Sapolu [2014] WSSC 48

Case name: Netzler v Sapolu
Citation: [2014] WSSC 48
Decision date: 03 February 2014
Parties: MATAI’A LYNN NETZLER of Motootua, Businesswoman for and on behalf of the family members of Aualiitia Sofe (Applicant) v BERNADETTE MARY SAPOLU  aka  TITI SAPOLU of Malifa, Widow (Respondent)
Hearing date(s): 
File number(s): CP 125/09
Jurisdiction: Civil
Place of delivery: Mulinuu
Judge(s): Justice Nelson
On appeal from:
Order:
Representation: 
Mr T S Toailoa for applicant
Ms S Hazelman for respondent
Catchwords: 
Words and phrases:
Legislation cited:
Cases cited:
Peters v Bernadette Mary Sapolu [2003] WSSC 39
Bernadette Mary Sapolu v Feiloaiga Peters and  Mataia Lynn Netzler [2010] WSSC 76
Lauano v National Provident Fund [2009] WSCA 3
Fidelitas Shipping Co. Ltd v V/O Eportchleb [1965] 2 All ER 4,8
Carl Zeiss Stiftung v Rayner and Keeler Ltd (No.2) [1996] 2 All ER 536
Reed v Mataeliga [2005] WSSC 1
The Ampthill Peerage Case [1997] AC 547 at 569
Jennings v Estate of Onesemo [2010] WSCA 12
Shannon v Shannon [2005] NZCA 83
Peniamina v Land and Titles Court [2004] WSCA 1
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU
CP 125/09
BETWEEN
MATAI’A LYNN NETZLER of Motootua, Businesswoman for and on behalf of the family members of Aualiitia Sofe.
Applicant
AND
BERNADETTE MARY SAPOLU  aka  TITI SAPOLU of Malifa, Widow.
Respondent
Counsel:   Mr T S Toailoa for applicant
Ms S Hazelman for respondent
Decision:	03 February 2014

DECISION OF THE COURT
1.	Applicant by her first amended Notice of Motion dated 27 March 2013 seeks to set aside two judgments of this court.  The formal proof judgment of Sapolu, CJ entered on 27 September 1994 in Bernadette Mary Sapolu v Sione Peters CP 301/92.  And that of Vaai, J on 19 December 2003 in Feiloaiga Peters v Bernadette Mary Sapolu [2003] WSSC 39 dismissing an application by the widow of Sione Peters to set aside the earlier judgment.  
2.	Feiloaiga Peters is the sister-in-law of Aualiitia Sofe a neighbour of the respondent.  The current applicant is a member of the family of Aualiitia Sofe .  Aualiitia as near as I can determine is still the registered owner of their property.  The house on the land which the respondent says encroaches onto her property was built by the applicant in 2005.
3.	That construction led to contempt proceedings against Feiloaiga Peters and the applicant which was the subject of a decision of Slicer, J dated 02 July 2010 in Misc 69/05: see Bernadette Mary Sapolu v Feiloaiga Peters (first respondent) and Mataia Lynn Netzler (second respondent) [2010] WSSC 76.  As the respondent had also filed a Motion to Strike Out a new action in respect of this matter brought by the applicant in 2009, Slicer, J also issued a decision dated 02 July 2010 in CP 125/09 striking out parts of the applicants Statement of Claim and staying the claim until such time as she was able to successfully to set aside the judgments entered in1994 and 2003.  This prompted the applicant to launch the present proceedings.
4.	The grounds for the application in respect of the 1994 decision are:
(i)	It was made in the absence of the defendant and his legal representative and thus violated the defendants right to be heard.
(ii)	As the plaintiffs husband is a first cousin of the Honourable Chief Justice and as the plaintiffs title is derived from her husband he should have recused himself. Right to fair trial alleged to have been violated.
(iii)	The land claimed by the plaintiff included land reclaimed by the defendants family.  Claim was therefore fraudulent.
(iv)	The land claimed by the plaintiff went beyond the boundaries of what was allocated to her husband by the Alii and Faipule of Vaitele.  Claim therefore fraudulent.
In respect of the 2003 decision:
(i)	It was erroneous as it was based on the incorrect premise that the respondents claim of ownership of her land was valid.
(ii)	Trial judge erred on the facts.
(iii)	Respondents claim fraudulent as per (iii) and (iv) above.
5.	The applicant further claims:
(i)	New evidence not available at the 2003 hearing shows the respondents boundary with the applicant was specifically and fraudulently manipulated so as to increase the respondents land holding.
(ii)	It is in the interests of justice that the judgments be set aside and it would be an affront to justice not to hear the applicants claim.
(iii)	No prejudice suffered by respondent if decisions set aside and matter re-litigated.
6.	Respondent vigorously opposes the applications citing rules 140 and 141 of the Supreme Court Civil Procedure Rules 1980 and the discretionary nature of the remedy sought by the applicant arguing that the applicant fails to satisfy the relevant tests for exercising the discretion as laid down by the Court of Appeal in Lauano v National Provident Fund [2009] WSCA 3.  Respondent also argues the original defendant in 1994 was represented by counsel and there is no substance in the other grounds of the application.  As to 2003 respondent submits the applicants remedy was to appeal the findings of the trial judge.  She has not done so or advanced sufficient reason for her failure.  She further asserts the so called “new evidence” is neither new nor relevant and there has been and continues to be prejudice suffered by the respondent which would be exacerbated if the matter were re-opened. 
7.	I will deal with each of the applicants main arguments recognizing they overlap with one another.
The 1994 proceedings:
8.	Court records show these proceedings were initiated by Statement of Claim dated 14 October 1992 duly served on the defendant personally at Vaitele on 26 November 1992.  Service was deposed to by affidavit of the process server wherein defendant is noted “as refused to sign.”  
9.	The statement of claim pleaded that the plaintiff was registered proprietor of: 
“All that piece or parcel of land containing an area of twenty point five perches (0a.0r.20.5p) more or less situated at Vaitele Faleata near Apia in the District of Tuamasaga described as Parcel 3754 Flur XI Upolu and part of the land registered in Volume 3 Folio 15 of the Land Register of Samoa as the same is more particularly delineated on Plan 5155 deposited in the Office of the Director of Lands in Apia.”  
10.	And further asserts that the defendants store and house encroaches onto the said Parcel 3754.  It also alleged that the defendant continued on with this nuisance despite numerous objections from the plaintiff and that surveyors who tried to point out the correct boundaries were chased away by the defendant and his family.
11.	Matter was set down for mention on 30 September 1992.  On that day it was adjourned to 25 January 1993 for a statement of defence.  On 25 January Mrs Drake of the lawfirm of Drake and Co was granted leave to withdraw from acting for the defendant and matter was adjourned to 08 February 1993 for formal proof.  The obvious inference is Mrs Drake appeared at the initial mention as instructed counsel for the plaintiff.  On 08 February the matter was further adjourned to 22 February for formal proof.  Probably because formal proof affidavits were not filed the proceedings were on 22 February 1993 adjourned sine die.  
12.	Plaintiff only revived the proceedings by filing formal proof affidavits in August 1994 resulting in the matter being listed for formal proof in September 1994.  On 27 September 1994 the Chief Justice entered formal proof judgment against the defendant in the sum of $7,800 representing loss of rental income from the plaintiffs land plus costs of the claim as fixed by the Registrar.  He also issued on eviction order evicting the defendant from the plaintiffs land.
13.	It is clear the defendant was served with the original proceedings and that he engaged counsel to act for him.  Counsel appeared at the first calling and the matter was adjourned for filing of a statement of defence no doubt based on counsels instructions and application.  At next calling counsel withdrew from acting for the defendant.  Such leave would not have been given by the Chief Justice without good reason as per the normal practice.  
14.	The applicant submits the defendant may not have been aware of his counsels withdrawal and was thus unaware the proceedings were adjourned for formal proof.  There is no evidence to support such a contention.  No affidavit was ever obtained from Mrs  Drake who has been in practice in this jurisdiction for over 30 years.  It is difficult to accept that Mrs Drake a senior and responsible counsel would have taken such drastic action without the knowledge of her client.  If she did that is an issue between the defendant, his family and Mrs Drake.  There is no suggestion the issue was at any time subsequent taken up by the defendant or his family.  
15.	It is more likely the defendant was made aware of the situation, hence the Chief Justice granting the request to withdraw.  The defendants failure to play a role in or monitor what were significant proceedings against his family lands ought not to be held against the plaintiff some 20 years later.  It is also difficult to accept that in the context of a Samoan family the defendant did not disclose to family members the existence of the court proceedings.  Especially if as alleged in the applicants affidavit the defendant was at the time perilously ill.  The reality seems to be that the defendant and his family did not avail themselves of their right and opportunity to be heard.  
Bias
16.	Very little is said in the applicants final written submissions on this issue.  It is therefore not clear whether the objection is based on actual bias or a reasonable apprehension of bias.  The test as established by the Court of Appeal in Peniamina v Land and Titles Court [2004] WSCA 1 is the objective one of whether in all the relevant circumstances there was a real danger of bias on the part of the Chief Justice because of his relationship to the plaintiffs husband i.e. whether there was a real danger of bias on his part in the sense that he might unfairly regard with favour or disfavor the case before him because of his relationship to the plaintiffs husband.  Other than the bare assertion the Chief Justice was thus related to the plaintiff there is no clarification of the details or nature of the relationship.
17.	There is no evidence the Chief Justice acted in any manner except properly and appropriately given what was before him.  The defendant had been served, had been given an opportunity to defend the action, had failed to do so, had lost his counsel and by the formal proof date 1½ years later,  had taken no steps to engage replacement counsel or defend the action.   Resulting in an entry of judgment by way of formal proof.  There is nothing on these facts supporting an allegation of biased treatment.
18.	Neither is there any evidence to support the suggestion that the Chief Justice presiding would give rise in the mind of a reasonable bystander to a real apprehension of bias.  This was certainly not in the mind of either the defendant or his counsel who raised no objection either in 1994 or 2003.  In a small jurisdiction like ours, presiding over cases involving the family of someone married into some part of ones family is almost inevitable.  Absent some special reason for disqualification a judge must carry out his duties in accordance with the oath of office he has taken.  There is no merit in this argument.
Fraud
19.	The applicant here seems to raising this as a substantial ground of defence in relation to both the 1994 and 2003 judgments.  As noted in the Supreme Court and Court of Appeal in Lauano, for the applicant to succeed the defence must be shown to be one of substance, not trivial or shallow but one deserving to be heard.
20.	In actuality the applicants defence has in fact been heard by the court.  Not in 1994 as the defendant there failed to defend the proceedings.  But in 2003 when the formal proof judgment was first challenged.  
21.	In 2003 Vaai, J considered the then applicants arguments which essentially related to the proper boundaries of the respondents land in particular the boundary between the respondents Parcel 3754 and the applicants neighbouring Parcel 3755.  He rejected the arguments for the reasons given in his judgment dated 19 December 2003.  The applicant did not within the prescribed time appeal this decision or the learned judges findings.  
22.	An application was brought in 2004 to enlarge the time for lodging an appeal.  That application was dismissed by Vaai, J on 30 November 2004.  His file note reads:
“Application for enlargement of time to file leave to appeal is refused.  Notice of Appeal is without basis.  Court had before it approved scheme and survey plan. Application is refused.”
23.	Slicer, J in his ruling of 02 July 2010 in the contempt proceedings had this to say on the matter:
“The court heard an application for the stay of proceedings to file an appeal dated 27 June 2005 in respect of appeal CA 1/2004.  That application was made by the Second Respondent in these contempt proceedings.  It will be dealt with, for convenience, in these reasons for judgment.  Power to entertain an appeal is one of right or with leave of the court in accordance with the Judicature Ordinance 1964 section 52.  The Ordinance section 56 provides that an appeal to the Court of Appeal shall not operate as stay of execution.  That power remains with this court. A Motion for Stay of Execution and for the time to file appeal was made in February 2004.  Each motion was dismissed by the court on 30 November 2004.  The first respondent in these proceedings did nothing to advance the matter in the Court of Appeal.  She has yet to prepare a record which might have advanced her case in that court.  This court has twice ordered her to pay the applicants costs incurred by reason of delay or failure to abide by the requirements imposed by this court.  There is no merit in the applications and they are dismissed.”
24.	The then and the current applicant did not as they could have, challenge the Vaai rulings by appeal or otherwise.   Failing all other avenues then direct to the Court of Appeal by way of an application for special leave pursuant to the Judicature Ordinance 1961. This too was not done.
25.	The applicants “defence” has been considered by the court.  It was tested and rejected by Vaai, J in 2003.  Rejections which were not appealed or if appealed were not diligently or adequately pursued.  The only difference between 2003 and now is the present applicant specifically pleads the issue of fraud.
26.	The applicants argument also seeks to rely on “new evidence” adduced at the hearing of the application.  This “new evidence” however essentially comprised the testimony of the applicant who was the only witness called in support of the application.  The difficulty is the applicant did not enter the picture until according to her sworn evidence notices to vacate the property were issued against her family in 2004.  No doubt as a result of the 2003 proceedings which she was not involved in either as a party or as a witness.  She then took the ill-advised step in 2005 of constructing a new building which encroached on to the contentious land.  A building which her family appears to continue to occupy.
27.	The applicant purported to produce into evidence a report from surveyor Maualaivao Piki Tuala which questions the veracity of the original survey and subdivision plans.   But even though this evidence was crucial to the application Mr Tuala did not file an affidavit or appear as a witness.  Furthermore his report is heavily criticized by a fellow surveyor Seiuli Ueligitone who did file an affidavit and appeared as a witness for the respondent.  
28.	I am satisfied as was Vaai, J that the legal boundaries of any piece of freehold land in this country are determined by the Subdivisional Survey Plan not the Sketch Plan.  I accept the evidence of Seiuli Ueligitone that Scheme Plan 1294 is as it says “Subject to final survey” which was duly carried out and approved by Survey Plan 5155.  Plan 5155 formed the basis of the conveyance of title to the respondent.  A plan as noted by Vaai, J in 2003 that “has not been challenged by the applicant. More importantly it was never challenged by the registered owner of Parcel 3755”.  The applicants evidence does not in my assessment meet the standard of “new evidence” neither does it raise a defence of any substance justifying a full enquiry into her claims.
29.	Furthermore the arguments and allegations being made by the applicant are not new.  They formed the basis of the 2003 challenge which also sought to declare the respondents conveyance null and void and which asked for a resurvey of the lands.  Matters which Vaai, J considered and rejected.  It is now time to move on.  As Lord Denning put it in Fidelitas Shipping Co. Ltd v V/O Eportchleb [1965] 2 All ER 4,8:
“It is a case of “issue estoppel” as distinct from “cause of action estoppel”….once an issue has been raised and distinctly determined between the parties, then, as a general rule neither party can be allowed to fight that issue all over again.”
30.	The requirements of issue estoppel were distinctly laid out by the  House of Lords in Carl Zeiss Stiftung v Rayner and Keeler Ltd (No.2) [1996] 2 All ER 536 per Lord Guest at 564:
“The requirements of issue estoppel still remain (i) that the same question has been decided; (ii) that the judicial decision which is said to create the estoppel was final, and (iii) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.”
See further the judgment of Sapolu, CJ in Reed v Mataeliga [2005] WSSC 1.  The applicant is now estopped from raising these arguments.
31.	Even if the applicants case survives the doctrine of issue estoppel, stringent requirements apply before a judgment can be set aside because of fraud.  The rationale for such rules was explained thus by Lord Wilberforce in The Ampthill Peerage Case [1997] AC 547 at 569:
“English law, and it is safe to say, all comparable legal systems, place high in the category of essential principles that which requires that limits be placed upon the right of citizens to open or to reopen disputes.  The principle …is the same principle as that which requires judgments in the courts to be binding, and that which prohibits litigation after the expiry of limitation periods.  Any determination of disputable fact may, the law recognizes, be imperfect: the law aims at providing the best and safest solution compatible with human fallibility and having reached that solution it closes the book.  The law knows, and we all know, that sometimes fresh material may be found, which perhaps might lead to a different result, but in the interest of peace, certainty, and security it prevents further inquiry.  It is said that in doing this, the law is preferring justice to truth.  That may be so; these values cannot always coincide.  The law does its best to reduce the gap.  But there are cases where the certainty of justice prevails over the possibility of truth…, and these are cases where the law insists on finality.  For a policy of closure to be compatible with justice, it must be attended with safeguards: so the law allows appeals: so the law, exceptionally, allows appeals out of time: so the law still more exceptionally allows judgments to be attacked on the ground of fraud: so limitation periods may exceptionally be extended.  But these are exceptions to a general rule of high public importance, and as all the cases show, they are reserved for rare and limited cases, where the facts justifying them can be strictly proved”(emphasis mine).
32.	The nature of these requirements were set out by the Court of Appeal in Jennings v Estate of Onesemo [2010] WSCA 12 which followed the approach of the New Zealand Court of Appeal in Shannon v Shannon [2005] NZCA 83.  While both cases involved applications to set aside based on the reception by the original trial court of perjured evidence, the principles enunciated would seem to apply to all applications to set aside that allege fraud.  
33.	These are that in order to succeed the applicant must satisfy the court that all of the following are present:
“(a)  	Evidence newly discovered since trial.
(b) 	The evidence could not have been found by the time of the trial by exercise of the reasonable diligence OR the public would consider it an affront to justice not to let the case proceed and the interests of justice so require.
(c)  	The evidence is so strong that it would reasonably be expected to be decisive at a rehearing, and if unanswered, must have that result; it must do more than merely corroborate evidence of a similar type given at the first trial.
(d) 	The plaintiff must not have been guilty of such prejudicial delay since discovery of the new evidence that it would be contrary to the interests of justice to allow the challenge to the original judgment to proceed.”
34.	As to (b) the court in Shannon noted:
“Not to have any kind of due diligence rule could, in our view, encourage the proliferation of actions by providing an incentive for parties dissatisfied with judgments to search for further evidence.  It could also discourage thoroughness in pre-trial discovery and preparation, as litigants would be aware that, were they unsuccessful, they could later uncover some other evidence to show that the other party’s evidence may have been untrue and thus essentially allow them to run their case again before another judge.
We consider, however, that the rule is not immutable.  The courts should, in our view, have a discretion to allow actions to proceed, even if based on evidence that would have been reasonably discoverable at the time of the original hearing.  The test should be whether it is in the interests of justice to do so and whether the public would consider it an affront to justice not to let the case proceed.  The discretion should not be lightly exercised particularly in cases where the “new” evidence is evidence of the same type as was adduced at the original trial of the matter or where it is of a type that would have been expected to have been adduced.  Before exercising its discretion to waive the due diligence requirement a court should, at least, require a very convincing explanation as to why the “new” evidence was not available at the first trial.  The evidence must also be of very high relevance and materiality.”
35.	Approved by the Court of Appeal in Jennings where it stated:
“In short, under the New Zealand test, a plaintiff who has not shown reasonable diligence will fail unless the public would consider it an affront to justice not to let the case proceed and the interests of justice so require.  This is plainly intended as a stringent requirement which will rarely be satisfied.
To have no reasonable diligence requirement at all would encourage unwarranted challenges to judgments and discourage thoroughness in preparation for trials.  On the other hand to have no safety valve would leave no room to accommodate truly exceptional cases in which the evidence of fraud is overwhelming and all the surrounding circumstances justify an exercise of the discretion in the plaintiffs favour.  Having said that, we would emphasise the rarity of cases in which rehearings would be justified under this heading.”
36.	As to (d) which was not a Shannon requirement the court held:
“The one qualification we would add to the three Shannon requirements is this.  They will not always cater for situations in which the three requirements are satisfied but the plaintiff has been guilty of prejudicial delay since discovery of the new evidence.  Suppose the evidence has been newly discovered since trial, it would not have been available with reasonable diligence at the original trial and it would have been decisive of the result, but the plaintiff has been guilty of prejudicial delay since discovery of the new evidence.  The court in Shannon itself did not need to consider that question and hence made no comment upon it.  In our view there should be a discretion to dismiss the plaintiffs action in those circumstances if the interests of justice so require.”
The Court of Appeal in Jennings dismissed the plaintiffs application because it found the plaintiff guilty of such prejudicial delay since the discovery of the new evidence that it would be contrary to the interests of justice to allow the challenge to proceed.
37.	Applying these tests the application fails on every count.  As to (a) the evidence of the applicant who was not involved in either of the previous proceedings is of limited value.  The evidence of her surveyor Mr Tuala is of no practical use as he was not called to testify and be questioned about his conclusions.  Given that the applicant and her surveyor permanently reside in Samoa and would have been available for trial in both 1994 and 2003 it is difficult to see how their evidence can be categorized “evidence newly discovered since the trial.”  The information upon which Mr Tuala bases his report was available in 1994 and 2003.  Only his disputed conclusions are “new.”
38.	As to (b) the exercise of a modicum of diligence would have unearthed this evidence.  And if one were to step back and view the matter as a whole, the affront to justice would be to let the matter proceed after the passage of 20 years, eleven of which have elapsed since the last serious attempt at litigation.  As observed by Slicer, J in his judgment on the Strike Out Motion the cumbersome procedures adopted by the various counsels have not assisted either party.
39.	As to (c) the evidence adduced by the applicant cannot be described as “strong” or “decisive”.  If anything, it attempts to corroborate that previously advanced at the 2003 hearing.  
40.	Current application also fails in relation to ground (d).  The file shows the applicant commenced the latest installment of proceedings by Statement of Claim dated 20 July 2009, some 6 years since the Vaai judgment.  No real explanation has been given for the delay.  With due respect counsels workload can not be accepted as justification for such a substantial delay in bringing proceedings.  There is inevitable prejudice associated with a delay in clarifying the status of land e.g. loss of use and enjoyment of the land and the fruits thereof.  The demise of the original players in this matter would further complicate any enquiry on both sides.  The balance of the pendulum favours the respondent.
Decision:
41.	The authorities make it clear that it is rare for applications to set aside based on fraud to succeed.  This is not a “truly exceptional case” or one where “the evidence of fraud is overwhelming” or where “the surrounding circumstances justify an exercise of the discretion in the plaintiffs favour”.  
42.	The application cannot succeed.  
(i)	It fails to raise a defence of any substance, there is no reasonable justification for the delay in lodging challenges to the two earlier decisions of the court and the respondent will suffer irreparable harm if this matter is to be re-litigated in its entirety.  It does not meet the tests laid down in Lauano.  
(ii)	Even if the applicant had a defence this was argued and considered by the court in 2003.  It was rejected in findings that were never appealed.  The applicant and her family are now estopped from raising essentially the same issues.  This is the doctrine of issue estoppel. 
(iii)	There is no “new evidence” for the applicant to rely on.
(iv)	Even if there were, such evidence was discoverable by the exercise of reasonable diligence.  And by no stretch of the imagination could the “new evidence” be described as “strong” or “decisive”; it is if anything corroborative only of that previously advanced and argued.  Applicant fails to satisfy the Jennings test.
(v)	The affront to justice would be to allow the matter to be re-opened.  Applicant fails Jennings test.
(vi)	The applicant is guilty of prejudicial delay.  A critical factor illustrated by the decision in Jennings.
(vii)	No other demonstrable basis for setting aside found.  No foundation for alleged breach of applicants Constitutional right to be heard and to a fair trial before an impartial tribunal.
Application is accordingly dismissed.
43.	Following on from the judgment of Slicer, J of 02 July 2010 in respect of the Strike Out Motion, Applicants Statement of Claim dated 20 July 2009 and any amended version thereof is struck out.  The applicant and members of the Aualiitia Sofe family are to comply with the judgment of the court dated 27 September 1994 within 14 days hereof.  That includes post-judgment interest on the judgment sum calculated at the rate of 8% per annum from the date of judgment.
44.	Costs in favour of the respondent. Counsel to file the appropriate memorandum within 14 days.  That should include costs on the Strike Out Motion if those have not already been determined.

……………………
JUSTICE NELSON