Alii and Faipule of Laulii v Ash [2012] WSCA 13 (23 November 2012)

COURT OF APPEAL OF SAMOA

Alii and Faipule of Laulii v Ash, Brighouse, Sorensen, and Lauofo Meti Property Limited [2012] WSCA 13

Case name: Alii and Faipule of Laulii v Ash & ORS

Citation: [2012] WSCA 13

Decision date: 23 November 2012

Parties:
ALII AND FAIPULE OF LAULII (Appellant) and RAMONA ASH, PATRICK BRIGHOUSE as Trustees of the estate of Jacob Helg, deceased, GALE SORENSEN in substitution for Emily Helg as Administratrix of the estate of Fritz Helg, deceased, and LAUOFO METI PROPERTIES LIMITED a private company (Respondents)

Hearing date(s): 21 November 2012

File number(s): CA 8/11

Jurisdiction: Civil

Place of delivery: Mulinuu

Judge(s):
Justice Fisher
Justice Hammond
Justice Salmon

On appeal from:

Order:

Representation:
No appearance for appellant
Fepuleai for the first and second-named respondents
Kruse for third-named respondent
Wulf for fourth-named respondent

Catchwords:

Words and phrases:

Legislation cited:
Court Grant 742

Cases cited:
Sia’aga v OF Nelson Properties Ltd [2008] WSCA 14;
Alii and Faipule of Siumu District v Attorney General of Samoa [2010] WSCA 5
Samoa Party v Attorney General [2010] WSCA

Summary of decision:

IN THE COURT OF APPEAL OF SAMOA

HELD AT MULINUU

FILE NO CA 8/11

BETWEEN

ALII AND FAIPULE OF LAULII

Appellant

AND:

RAMONA ASH, PATRICK BRIGHOUSE as Trustees of the estate of Jacob Helg, deceased, GALE SORENSEN in substitution for Emily Helg as Administratrix of the estate of Fritz Helg, deceased, and LAUOFO METI PROPERTIES LIMITED a private company.

Respondents

Court:

Honourable Justice Fisher

Honourable Justice Hammond

Honourable Justice Salmon

Hearing: 21 November 2012

Counsel:

No appearance for appellant

Fepuleai for the first and second-named respondents

Kruse for third-named respondent

Wulf for fourth-named respondent

Judgment: 23 November 2012

JUDGMENT OF THE COURT

Introduction

[1] The appellants appealed against a decision of Slicer J given in the Supreme Court on 10 June 2011. The respondents now apply to strike out the appeal. When the appeal was called before this Court there was no appearance for the appellants. By a memorandum the appellant’s counsel, Mr Toailoa, advised that he was incapacitated and sought an adjournment. The hearing of the application to strike out has proceeded in his absence.

History of the proceedings

[2] Following the Supreme Court judgment the appellants filed a Notice of Appeal on 15 July 2011.

[3] A right of appeal pursuant to s 51 of the Judicature Ordinance 1961 being beyond argument, the Supreme Court gave leave to appeal on 4 November 2011. We were advised from the bar that when leave to appeal was given the Court failed to fix any security. Counsel ought to have drawn to the Judge’s attention that s 54(3) makes the fixing of security mandatory, although of course the sum fixed might be nominal in special circumstances. Had security been fixed in the present case, the appeal may well have failed at an early point pursuant to rule 12 of the Court of Appeal Rules.

[4] The appeal was due to be heard at the sitting of this Court in the week of 25 May 2012. At a callover on 26 April 2012 the appeal was deferred to the next session. Counsel for the appellant was not ready to proceed. He advised that he was researching new evidence which would constitute one of the grounds for the appeal. Nor had any Appeal Record had been filed. In addition counsel for one of the respondents was indisposed.

[5] On 2 October 2012 counsel were advised that the appeal was relisted for hearing in the in the week of 19 November 2012, the session that is now current. No less than seven callovers followed. The appellant was unrepresented at five of them. At the other two, on 19 and October 2012, Mr Toailoa instructed Ms Papalii to enter an appearance on his behalf. We are advised from the bar that on his instructions she advised that he was ready to proceed.

[6] At subsequent callovers on 1, 8 and 15 November 2012 there was no appearance for the appellant. The appeal was allocated a provisional hearing before this Court at 2.00 pm on 21 November 2012 notwithstanding the absence of any Appeal Record and Practice Direction documents from Mr Toailoa.

[7] On 12 November 2012 counsel for the third-named respondent applied to strike out the appeal on the grounds that no Appeal Record or Practice Direction documents had been filed.

[8] A callover of all cases was held in this Court at 9.30 am on Monday of this week. When called, all respondents were represented by counsel. There was no appearance for the appellant.

[9] Shortly before the callover began, a person unnamed placed a memorandum on the Registrar’s desk. In the memorandum Mr Toailoa advised that he would be unable to attend Court due to ill health. He also advised that the delay in preparing the Appeal Record was due to the need to translate a number of historical documents from German. He said that such documents were not readily available in Samoa and had come to light only through searches of the Wellington Archives.

[10] Attached to Mr Toailoa’s memorandum was a medical certificate in standard form stating that he was unfit for work for one week. The week for which he was unfit coincided precisely with the week in which this Court is sitting.

[11] At the callover the respondents’ application to strike out was stood down for hearing later in the week. That hearing has now taken place. Again the respondents were represented at it but there was no appearance for the appellant.

Required procedure

[12] Rules 13 and 14 of the Court of Appeal Rules require that the appellant file an Appeal Record within three months of the filing of the Notice of Appeal. In this case it was due on 15 October 2011. Over 12 months later it has still not been filed.

[13] The Court of Appeal Practice Direction further requires that the appellant’s submissions and chronology be filed and served no less than 21 days before the Monday of the Court of Appeal sitting. Copies of authorities are to be filed at least three working days before the Monday of the Court of Appeal sitting. None of those steps have been complied with either.

Reasons for non-compliance

[14] Mr Toailoa’s principal ground for non-compliance with procedures is that time is required to locate and translate historical documents. We are unable to accept that as a ground for adjournment for the following reasons:

(a) The appellants brought these proceedings in the Supreme Court in 2004. The necessary research could have been carried out then. The Supreme Court hearing was in October 2010. The judgment appealed from was given in June 2011. There has been ample time to find and research the relevant documents.

(b) The possibility of fresh evidence on appeal was not a reason for delaying the preparation and filing of the Appeal Record. The Appeal Record is an assembly of documents and transcripts used in the Supreme Court, not fresh evidence which an appellant seeks to adduce in this Court.

(c) No application to adduce fresh evidence has been filed. Nor has the Court been provided with any description of the nature and relevance of the proposed fresh evidence.

Counsel’s incapacity

[15] Neither Mr Toailoa’s memorandum nor the medical certificate give any indication of the nature of his incapacity. All that is known is that it coincides with the week in which this Court is sitting.

[16] Mr Toailoa was also due to appear on another appeal, CA 11/12, to be heard on the same day as this one. The opposing counsel in CA 11/12 provided detailed evidence of her own medical incapacity in support of an adjournment of that case. Mr Toailoa opposed that adjournment, advising by memorandum that if necessary he would rise from his sickbed to conduct the appeal. It seems reasonable to infer that if he could do so for that case, he could do so for this one.

Disposal of the appeal

[17] Rule 21 of the Court of Appeal Rules provides for dismissal of an appeal for non-appearance by the appellant upon proof of service of notice of the hearing. We accept that an email of 2 October 2012 to Mr Toailoa notifying him of the hearing qualifies as proof of service for that purpose.

[18] However we would put the basis for our dismissal on a wider basis. This Court has an implied power to control its own procedures in all respects except where it would be inconsistent with legislation. There has been unacceptable delay by the appellants and their counsel in taking the various pre-hearing steps required to prosecute the appeal quite apart from non-appearance at the hearing itself. There is no longer justification for denying the respondents the fruits of the judgment given in the Supreme Court. The time has come to dismiss the appeal.

Merits of the appeal

[19] We have come to that view independently of the merits of this appeal. However it may be of consolation to the appellants to be aware that it is very difficult to understand how the appeal could have succeeded had it proceeded to a full hearing.

[20] By his judgment Slicer J upheld the freehold title of the respondents in 90 acres of land known as Pupu and Mulifato. The land stretches from seawards of the main east coast road of Upolu to well inland towards the mountains. Two matai had purported to sell the land to a European in 1867. The thrust of the appellant’s case is that the matai concerned had no authority to do so.

[21] There has been, and remains, much argument over the question whether the matai had the authority to sell the land. However it is a matter of record that on 9 March 1897, by Court Grant 742, the Supreme Court confirmed a sale of the land to Johann Helg. He is the individual from whom the present respondents trace their title.

[22] That such confirmations conclusively determine title for all subsequent purposes was established by this Court in Sia’aga v OF Nelson Properties Ltd [2008] WSCA 14; Alii and Faipule of Siumu District v Attorney General of Samoa [2010] WSCA 5 and Samoa Party v Attorney General [2010] WSCA 4. In the face of those authorities, it is not easy to understand how the appeal could have succeeded whether or not the appellants had been able to show that the selling matais lacked the authority to sell.

Counsel’s conduct

[23] Where a case is due to be called in open court, counsel seeking an adjournment must either appear in person or arrange for some other counsel to appear in their stead. That was not done in this case.

[24] The result was that there was no-one present in court to represent the interests of the Alii and Faipule of Laulii. Nor was there anyone in court to answer questions regarding the grounds for an adjournment. The course taken was discourteous to this Court and to the other counsel who appeared.

[25] In another recent appeal this Court imposed a wasted costs order against Mr Toailoa personally. This is not a power to be exercised lightly. However he will appreciate the personal risks he faces if there is persistent non-compliance with the procedures of this Court.

Result

[26] The appeal is dismissed.

[27] The respondents apply for costs. The greatest costs were incurred by the party represented by Ms Kruse who prepared and presented full written submissions. There is also the fact that the respondents could have been represented by one counsel given that their interests in resisting the appeal were identical.

[28] The appropriate total which the appellants must pay the respondents in costs is $5000. That total will be apportioned on the basis that $3000 is payable to the party represented by Ms Kruse and $1000 to each of the other two respondents. We have expressed the costs order in that way because of the confusion in the Court documents over the correct names of the respondents and the order in which they have been identified.

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Honourable Justice Fisher

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Honourable Justice Hammond

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Honourable Justice Salmon