Lamosi v Nelson Mackenzie Ltd [1996] WSCA 7; 05 1995 (30 August 1996)

IN THE COURT OF APPEAL OF WESTERN SAMOA
HELD AT APIA

C.A. 5/95

BETWEEN

SALE LAMOSI
of Matautu-tai, Apia
Appellant

AND

NELSON MACKENZIE LTD
a duly incorporated company having its registered office at Apia
Respondent

Coram: The Rt Hon. Lord Cooke of Thorndon, President
The Rt Hon. Sir Gordon Bisson
The Hon. Mr Justice Sheppard

Hearing: 26 and 30 August 1996

Counsel: T. Malifa for Appellant
Ruby Drake for Respondent

Judgment: 30 August 1996

JUDGMENT OF THE COURT DELIVERED
BY LORD COOKE OF THORNDON

This matter was called on the first sitting day of the present session of this Court. The case was obviously not in order to proceed and an adjournment was granted until this morning.

When the hearing began this morning, Mr Malifa for the defendant in the Supreme Court and appellant in this Court applied for a further adjournment. Mrs Drake for the Supreme Court plaintiff and prospective respondent opposed the application and the Court dismissed it, taking the view that it was prejudicial and unjust to Mrs Drake's client and that the overall justice of the case was against any further adjournment.

Mr Malifa has tendered an affidavit by the former counsel for Sale Lamosi sworn as recently 30 August 1996 in which there is a claim that 'an appeal was granted as of right pursuant to section 51(a) of the Judicature Ordinance 1961'. It is true that the matter in dispute no doubt amounts to $400 or upwards, and an appeal lay as of right, but the provisions of s.54 of the Judicature Ordinance 1961 still have to be complied with. Despite the claim in the affidavit, they have not been complied with. The minutes on the Court file made by the Chief Justice record no grant of leave or the fixing of security for costs. Nor, of course, has security been given. Therefore this Court has no jurisdiction to deal with the case under ss.51 or 54 of the Judicature Ordinance.

Faced with that, Mr Malifa, stressing the difficulties of his position, fell back on a possibility which we understood him previously not to have raised. He applied orally for special leave under s.64 of the Ordinance. That application in turn was opposed by Mrs Drake. Again we are satisfied that justice requires us to dismiss this belated application.

The case turns entirely on facts, the central issue being whether or not the defendant in the Supreme Court was in adverse possession of the relevant land so as to be able to invoke successfully a Limitation Act defence. The Chief Justice after a hearing of some days, for reasons fully given in a reserved judgment, found on the facts that the defendant's occupation was not adverse possession. Even if notes of evidence at the trial were available, and it seems that they are not, the likelihood of the Supreme Court defendant being able to persuade this Court to reverse the Chief Justice's careful findings of fact is remote. There is nothing special about the case, which, as already mentioned, is a factual dispute; and nothing in the nature or history of the case leads us to think it an appropriate one for special leave.

In the result there is no appeal before this Court which it is competent to hear and the appeal is accordingly dismissed for want of jurisdiction. We add that Mr Malifa has informed us that his instructions in the matter came from the firm of Kamu and Peteru.

Costs should follow the event. There will be an order in favour of the Supreme Court plaintiff in the sum of $300 for the costs of proceedings in this Court.

Solicitors:
Libra Law & Consultancy, Apia, for Appellant
Drake & Co., Apia, for Respondent