Mateni v Pulileka [2009] TOSC 4; LA 09-2008 (1 May 2009)

IN THE SUPREME COURT OF TONGA
APPELLATE JURISDICTION
NUKU’ALOFA REGISTRY LA 09 of 2008

BETWEEN:

PULILEKA MATENI
Applicant

AND:

PALETASALE PULILEKA
A.K.A. PETELO TU’UNGAHALA
Respondent

BEFORE THE HON. JUSTICE ANDREW

Counsel: Mr Fifita for the applicant
Mr Tu’utafaiva for the respondent.

Date of judgment: 1st May 2009.

JUDGMENT

This is an ex parte application for leave to apply out of time to appeal to the Court of Appeal and to stay case LA 26/2008 until the appeal is finally determined.

The applicant here issued a land case against the respondent. It was undefended and he obtained judgment against the respondent. That was on 15th August 2008. Ultimately the respondent applied to set aside that judgment. The matter was set aside principally on the basis that it was realized then that there was an earlier order of the Supreme Court which had given certain rights to the respondent to occupy the land.

This Court then decided that all of these issues could only properly be resolved by the matter proceeding to trial. In the meantime the respondent issued proceedings in LA 26/2008.

This application is out of time. I consider in all the circumstances that it is only fair and just that the matter proceed to a hearing. I do not believe it is appropriate that leave be granted to appeal against the decision to set aside the earlier order and order that the matter proceed to an inter-parties hearing.

If the applicant is ultimately unsuccessful he will still have a right of appeal remaining and I don’t think that he is ultimately prejudiced. In the unique circumstances here I think that the matter should proceed to trial. The stated hearing dates have been fixed and the matter is ready to proceed to trial.

Leave to appeal is refused.

Costs of this application shall be costs in the cause.

Dated: 1st May 2009.

JUDGE