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Jennings v Estate of Ioane Onesemo [2010] WSCA 12 (24 September 2010)

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU


C.A. 13/10


BETWEEN:


ALEXANDER ELI JENNINGS (JUNIOR)
of American Samoa, Administrator
Appellant


AND:


THE ESTATE OF IOANE ONESEMO
of Tufuiopa, Pastor, and
ALATAUA ONESEMO of Tufuiopa, Widow
Respondents


Coram: Honourable Chief Justice Sapolu
Honourable Justice Baragwanath
Honourable Justice Fisher


Counsel: Mr V G Kruse for appellant
Mr A Roma for respondent


Hearing: 23 September 2010
Judgment: 24 September 2010


JUDGMENT OF THE COURT


Introduction


[1] The appellant appeals against a decision of Slicer J given in the Supreme Court of Samoa on 11 June 2010. By that decision Slicer J struck out proceedings in which the appellant attempted to have earlier judgments of the Supreme Court and Court of Appeal set aside on the grounds of fraud. Those judgments had found that the appellant's family lost their title to land due to the respondents' adverse possession for more than 12 years.

Background


[2] The parcel of land now in dispute formed part of the estate of Alexander Eli Jennings who died in 1956. One of his beneficiaries was his granddaughter, Eliza Thompson.

[3] Although formal administration of the deceased's estate was not granted until 1990, it appears to have been accepted that Eliza Thompson had the family's authority to grant permission to use the land. In 1970 she gave that permission to a member of the extended family, Alofaaga Vaafuti. In or about 1970 Alofaaga and her family moved on to the property where she resided and acted as its caretaker. How long she and other members of the extended family remained there is a matter of dispute.

[4] It is not disputed that Ioane and Alataua Onesemo later moved on to the property, that, with or without intervals away from it, Alataua has remained there down to the present time and that her husband Ioane remained there until he died in 2006.

[5] The above-named appellant, Wallace Jennings, was appointed as administrator of the A E Jennings estate on 9 November 1990. In the following year he visited the property and found the Onesemos living there. When he told them to leave they declined to do so. They offered to purchase the property at valuation but negotiations to that effect ultimately failed.

[6] In October 1995 Wallace Jennings brought proceedings to have the Onesemos evicted from the property as trespassers. A trial followed before Wilson J in June 2000. Evidence for the appellant was given by Wallace Jennings and his aunt, Eliza Jennings. Evidence for the respondents was given by Ioane Onesomo. The principal issue presented to the Judge at the time was whether, during the period of their occupation which was assumed to have commenced in 1975, the Onesomos had satisfied the requisite physical and mental attributes of possession for adverse possession purposes. Among other things the appellant relied upon the offer to purchase.

[7] Wilson J's judgment is recorded as Jennings v Onesemo [2000] WSSC 26. Noting that there was little dispute over the facts, he found that the Onesemos began to occupy in 1975 when Alofaaga and her husband moved to New Zealand; that their construction of a house on the property was a dealing in the land which showed use to the exclusion of all others; that this amounted to adverse possession for more than twelve years from 1975 to at least 1990 (the legal significance of that date, as distinct from the commencement of proceedings in 1995 not being explained); that the Jennings family therefore lost title to the property through adverse possession and the operation of s 9(2) of the LimitaAct 1975;1975; and that the appellant should be required to transfer title to the Onesemos.

[8] In the following year judgment was upheld on appeal on a question of law (Jennings v Onesemo [2001] WSCA 1SCA 1). The question of law was whether the Onesomos' offer to purchase the property at valuation, which they assessed at of $80,000, revived the Jennings' title after the 12 year limitation period had expired. The Court of Appeal upheld Wilson J's conclusion that once the limitation period had expired it was too late to revive the Jennings' title.

[9] In 2006 Alexander Eli Jennings was appointed as administrator in the A E Jennings Estate in place of Wallace Jennings. On 21 December 2009 he brought the current proceedings challenging the judgments given in 2000 and 2001. He sought to set aside those judgments on the ground that they had been obtained by fraud.

[10] The fraud was said to be the perjured evidence of Ioane Onesemo in stating that he and his wife had moved on to the land in 1975 rather than 1976, failing to state that Alofaaga had given them permission to live on the land, failing to state that they did not erect a permanent European-style house until 1987, failing to state that Lavasii Levae and his family occupied the land with the permission of the Jennings family from 1961 to 1987, and failing to state that for two periods of three years each (1978 to 1981 and 1983 to 1986) they were living elsewhere. He also alleged that Alofaaga had remained on the property until 1985 and not 1975.

[11] The appellant filed a formal statement of claim and five affidavits in support. Two of the affidavits were of particular significance. One was the affidavit of Alofaaga. She said that (i) she did not leave the property until she emigrated in 1985, not 1975 as alleged by Ioane, (ii) in response to a request from them she gave Ioane and Alataua permission to reside on the property and (iii) Lavasii Levae and his family lived on the back portion of the land with the permission of the Jennings family and were still there when she emigrated in 1985. In his affidavit Folo Lavasi'i corroborated the last point, deposing that his family had lived in a home on the back portion of the land from the 1960s down to the date of his affidavit which was sworn on 10 December 2009.

[12] The respondents applied to strike out the latest proceedings.

Judgment in the Supreme Court


[13] In his decision on the respondents' application, Slicer J struck out the Appellant's proceedings to set aside the earlier judgments. He held that while fraud was a legitimate ground for setting aside a judgment, it was for the Appellant to establish by oath, documentation or official record that fraud or perjury had been established to a level which showed that there was a cause of action to that effect, that the evidence to that effect had been newly discovered since trial, that it could not have been found by the time of trial by exercise of due diligence and that, if unanswered, the new evidence would be decisive of the outcome (the lesser test of "would probably have affected the outcome" being redundant in cases of perjury).

[14] Applying those requirements to the evidence, Slicer J found that the even if accepted, the new evidence could not have affected the outcome. It would not have changed anything if the Onesemos had moved on to the land in 1976 rather than 1975 and had not built their permanent house in 1987 or if Lavasii Levae and his family were on the land with the permission of the Jennings family from 1961 to 1987. Even if Alofaaga had given the Onesemos permission to live on the land, there was no evidence to suggest that she had the authority of the Jennings family to grant permission on their behalf. Temporary absences of the Onesemos for periods of three years at a time were "consistent with a temporary absence" and by the time Wallace Jennings first asserted a competing right in 1990 or 1991 "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". As to Alofaaga's evidence that she did not leave until 1985 "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[y] also shared in the occupancy is evidentiary but not decisive of the issue".

[15] The Judge went on to note two further reasons for dismissing the latest proceedings. One was that the appellant had failed to show that the evidence from Alofaaga could not have been obtained in time for the trial. The other was that there had been prejudicial delay between publication of the original judgment on 9 August 2000 and commencement of the current proceedings on 21 December 2009. As to delay, the Appellant was aware of the whereabouts of Alofaaga soon after the 2000 judgment. As to prejudice, Ioane Onesemo had died since the hearing in 2000 and was thus unavailable to refute the allegation that Alofaaga had granted him permission to occupy.

[16] From that decision the appellant has appealed.

The appeal


[17] In a well-presented argument in this Court Mr Kruse advanced substantially four grounds in support of the appeal:

[18] As this is the first time that this Court has had to consider strike out applications of this kind, we think it necessary to begin with the principles that should apply in Samoa.

Principles for determining an application to strike out proceedings to set aside a judgment on the ground of fraud


[19] Where a plaintiff brings proceedings to set aside an earlier judgment on the ground of fraud, and the defendant applies to strike out the proceedings, the plaintiff must surmount three hurdles before attaining ultimate success in the litigation:

[20] It is important to distinguish between those three stages in the proceedings as the criteria for each are different. In this appeal we are concerned only with the first, which it is convenient to refer to as "the strike out stage".

[21] In other jurisdictions varying approaches have been taken to the threshold required of a plaintiff at the strike out stage where the plaintiff relies upon perjury as the ground for setting aside an earlier judgment. In New Zealand the test was authoritatively determined in Shannon v Shannon [2005] NZCA 83 (CA). In that jurisdiction the plaintiff must show all three of the following:

[22] As to the second of those requirements, the Court in Shannon said this:

[124] This leaves the question of whether there is a due diligence requirement in New Zealand. In our view there is. 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.


[125] 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 exercise, 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 (and, in such circumstances, it may fall foul of the principle outlined at [104](d) above in any event}. Before exercising its discretion to waive the due diligence requirement a court should, at the 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.


[23] 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.

[24] Other approaches are taken to the reasonable diligence requirement in England and Australia. In England the requirement that the evidence could not have been found by the time of the trial by exercise of reasonable diligence is absolute; there is no discretion to waive that requirement: see DMGordon, "Fraud or New Evidence as Grounds for Actions to Set Aside Judgments 1" (1961) 77 LQR 358 at 376 where the authorities are collected.

[25] In Australia, on the other hand, there is no reasonable diligence requirement at all: Toubia Schwenke [2002] 54 NSWLR 46 (CA) at 54-5.

[26] We regard the New Zealand approach to the reasonable diligence requirement in Shannon as the appropriate one for Samoa. The policy reasons for it are outlined in Shannon at paras [124] and [125] cited above. 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 plaintiff's favour. Having said that, we would emphasise the rarity of cases in which rehearings would be justified under this heading.

[27] 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 plaintiff's action in those circumstances if the interests of justice so require.

[28] To summarise, in Samoa where the plaintiff relies upon perjury as the ground for setting aside an earlier judgment, and the defendant applies to strike out those proceedings, the plaintiff must satisfy the Court that all four of the following requirements are present:

[29] We now apply those requirements to the present case. It will be convenient to consider in turn whether the evidence was newly discovered since trial, the strength of the new evidence, whether it would have been discovered in time for trial with reasonable diligence, the "affront to justice" test, and the "prejudicial delay" test.

Evidence newly discovered


[30] We accept that the evidence contained in the affidavits on which the appellant now relies was newly discovered by the appellant since trial. The sequence is outlined in an affidavit by the appellant personally. There is no reason to doubt his broad assertion that the new evidence resulted from inquiries made by or on behalf of his predecessor as administrator of the estate following the original judgments and further inquiries conducted by himself.

Strength of the new evidence


[31] There is room for argument about the new evidence relating to one or more absences from the property during the adverse possession period. However there is strong evidence in the affidavits of Alofaaga and Folo Lavasi'i on other matters which would have been critical to the adverse possession defence.

[32] It seems unlikely that Alofaaga would mistake the year of her emigration by ten years when it would be so easy to prove the date independently. Her evidence would shorten the period of adverse possession by ten years and bring the appellant's claim within the limitation period. If accepted, her evidence as to the request and grant of permission would also have been fatal to the respondent's case as would her evidence as to lack of exclusive possession due to the continuing presence of the Lavasi'i family.

[33] Ioane aside, there was no substantial evidence to the contrary at the trial. The only record of the evidence of Eliza Jennings is a fleeting one in the judgment itself. The judgment indicates that her evidence as to Alofaaga's departure was hearsay and indecisive. The tenor of the judgment is that the point did not need to be explored because the way in which the case was presented to him made that unnecessary.

[34] Folo Lavasi'i independently deposes that his family had lived in a home on the back portion of the land from the 1960s down to the date of his affidavit which was sworn on 10 December 2009. If accepted, his evidence would have similarly been fatal to the respondent's case given the lack of exclusivity necessary for adverse possession.

[35] We accept that the new evidence would reasonably be expected to be decisive at a rehearing, and if unanswered, must have that result.

Reasonable diligence


[36] Whether new evidence would have been discovered in time for trial with reasonable diligence involves questions of degree.

[37] Theoretically the legal relevance of Alofaaga's evidence should have been appreciated by those advising the Appellant before the original trial. With unlimited resources it might also have been possible to track her down in New Zealand in the time available.

[38] However in 2000 the state of adverse possession jurisprudence in Samoa was still in its infancy, and hence the relevance of Alofaaga's evidence would not have been as obvious as it is today.

[39] We also accept that it would not have been easy to locate Alofaaga in New Zealand, investigate her account of the matter, and bring her evidence to trial in Samoa in the time available. From the title-holder's point of view it is vital to issue proceedings to negate adverse possession as quickly as possible to stop time running. And once such proceedings have commenced, their trial may not be delayed indefinitely. Overall we are inclined to accept that the Alofaaga evidence would not have been discoverable with reasonable diligence in time for the original trial.

[40] The Folo Lavasi'i evidence is more problematic. It should have been obvious to anyone visiting the disputed property that part was occupied by the Lavasi'i family. In that sense the evidence was always readily procurable. On the other hand we doubt whether it was obvious to the legal profession or the Courts at that time that adverse possession required exclusivity of possession. At that time the state of adverse possession jurisprudence in Samoa was still in its infancy. Although a very different approach would be taken today, we are inclined to accept that at the time of trial the Folo Lavasi'i evidence was not readily discoverable, in a broad sense, either.

The "affront to justice" test


[41] Our conclusions as to the first two of the four requirements faced by the appellant make it unnecessary to decide whether the public would consider it an affront to justice not to let the appellant's case to proceed and whether that is also necessary in the interests of justice. This is merely an alternative to the reasonable diligence requirement which we have already held to be satisfied.

The "prejudicial delay" test


[42] The final requirement is that 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.

[43] In his own affidavit the appellant has accepted that "shortly after the decision from the Court of Appeal the family discovered Alofaaga". The Court of Appeal decision was given in 2001. Alofaaga's affidavit was not sworn until 14 December 2009 and the appellant's proceedings to set aside were not commenced until 21 December 2009. One can understand some measure of delay given Alofaaga location overseas and organisational difficulties between various members of the appellant's family. The fact remains, however, that there is very substantial, and largely unexplained, delay for something in the order of seven or eight years.

[44] Folo Lavasi'i's evidence is in a similar category. His affidavit was not sworn until 10 December 2009. The continuous presence of his family on the property throughout must have made it easy to locate him or some other member of his family at all times.

[45] There is some suggestion in the appellant's affidavit that he was waiting until all the evidence inquiries were complete and all potential deponents had been located, before commencing proceedings to set aside. This was a mistake. The proceedings to set aside should have been commenced at the first opportunity. An affidavit from either Alofaaga or Folo Lavasi'i would have sufficed.

[46] We turn to the question of prejudice. Ioane died in September 2006. It is against Ioane that the perjury allegation is levelled. If a retrial were to be held he would not be available to defend that charge. Mr Kruse pointed out that his widow Alataua would still be available to give evidence for the respondents. We accept that this would go some way to mitigating the prejudice. The fact remains, however, that due to the appellant's delay the respondents will no longer be able to add Ioane's evidence to that of Alataua.

[47] There remains an overriding discretion to meet the interests of justice. We suspect that if the appellant had brought proceedings to set aside within a reasonable period of the original judgments they would have survived an application to strike out. The matter would then have moved on to the second stage of a hearing to decide whether the original judgments should in fact be set aside. As it is, however, the delay has been not only great but highly prejudicial. It is difficult to think of any greater prejudice to the respondents than loss of their chief witness and the unavailability of the target of the perjury charge. Ioane is no longer available to defend himself.

[48] Our conclusion is that the appellant has 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.

Result


[49] The appeal is dismissed with costs to the respondents in the sum of $5000.

Honourable Chief Justice Sapolu
Honourable Justice Baragwanath
Honourable Justice Fisher

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