Pune v Vaeluaga [2016] WSCA 4 (19 February 2016)

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Case name:	Pune v Vaeluaga

Citation:	[2016] WSCA 4

Decision date:	19 February 2016

Parties:	Kirita Maria Pune of Auckland, retired and Elsa Vaeluaga as administratrix of the estate of Leilua Alosio Vaeluaga deceased (Appellant) and The administrators of the estate of Molioo Teofilo Vaeluaga late of Togafuafua, deceased (Respondent)

Hearing date(s):	15 February 2016

File number(s):	CA16/15

Jurisdiction:	Civil

Place of delivery:	Supreme Court of Samoa, Mulinuu

Judge(s):	Honourable Justice Fisher Honourable Justice Panckhurst Honourable Justice Nelson

On appeal from:	Supreme Court matter

Order:	We adjourn this appeal to the next session of the Court of Appeal to allow time for the following: (a) The trial judge to give a reasoned decision arising from the 2003 hearing or direct a rehearing; (b) The Supreme Court (whether the trial judge or some other judge) to give a reasoned decision if consequential remedies are to be further delayed or denied; (c) Consideration be given in the Supreme Court to the question whether the original trial judge or some other judge should continue with responsibility for these proceedings; (d) The appellants to decide, in the light of the observations above, what further steps they wish to pursue over joinder of parties in existing proceedings and/or the commencement of additional proceedings; and (e) All present and future parties to consider whether the whole matter could be resolved by mediation either before, during, or after the above steps.

Representation:	O Woodroffe for Appellant P Fepuleai for Respondent

Catchwords:	Disputed land -

Words and phrases:

Legislation cited:

Cases cited:

Summary of decision:

KIRITA MARIA PUNE of Auckland, retired and ELSA VAELUAGA as administratrix of the estate of LEILUA ALOSIO VAELUAGA deceased
Appellant

The administrators of the estate of MOLIOO TEOFILO VAELUAGA late of Togafuafua, Deceased
Respondent

Court:
Honourable Justice Fisher
Honourable Justice Panckhurst
Honourable Justice Nelson
Hearing: 15 February 2016
Counsel:
O Woodroffe for Appellant
P Fepuleai for the Respondent
Judgment: 19 February 2016

[1] The appellants appeal to this Court following the Supreme Court hearing of a disputed land case in 2003. The case was a dispute between siblings over two properties respectively located at Tuloto and Lotopa.

[2] The case has been complicated by three factors. One is a lengthy delay in the delivery of judgment at first instance. The second is that between hearing and judgment events occurred that were highly prejudicial to the appellants. The third has been a misunderstanding on the appellants’ part as to the legal steps required to rectify the situation.

[3] In this judgment we suggest the steps that might be taken for resolving what has become a difficult dispute for all concerned. Unfortunately before turning to the dispute itself we must refer to still further difficulties of a procedural nature.

[4] Mrs Woodroffe sought leave to appear in support of the appeal despite lack of a Law Society practising certificate. We were not satisfied with Mrs Woodroffe’s explanation for the lack of such a certificate. Section 33(2) casts on the practitioner, not the Council of the Law Society, the obligation to advance the matter by satisfying the Council that stated requirements have been fulfilled. The requirements include, for example, presence in Samoa to undertake management of the practice on a permanent basis or to make other arrangements that are satisfactory to the Council. None of this casts on the Council the obligation to initiate anything. It is for the practitioner to take positive steps to satisfy all the stated requirements. The practitioner must then communicate the result to the Council. That is something for Mrs Woodroffe to resolve with the Law Society in the first instance. If it cannot be resolved at that level it must be dealt with in another forum. In the meantime we granted Mrs Woodroffe leave to appear on this and a related appeal in the interests of her clients. The leave was confined to this week only.

[5] Unfortunately our task on appeal has also been made no easier by unnecessary lapses in the way in which the appeal was presented. We outline the shortcomings in the hope that they can be avoided in the future for this and other cases.

[6] The entitlement was defective. The administrators in the respondent estate have not been named. This is unsatisfactory given their potential substantive liability and also their responsibility for costs. We were told from the bar that the necessary orders have already been made in the Supreme Court substituting administrators in the estates of Leilua Alosio deceased, as one of the plaintiffs, and Molio Teofilo Vailuaga, as defendant. Assuming that to be the case, the entitlement ought to be corrected before proceeding further in either court.

[7] The record on appeal was not filed until the eleventh hour. Rules 13 to 15 of the Court of Appeal Rules require that when ready to proceed with the hearing an appellant must file and serve a record on appeal. In this case the appellant did not send a record to the Court until the last working day before the hearing, and then in only electronic form. A hard copy was not filed until the morning of the hearing.

[8] The record on appeal that was filed was woefully incomplete. When we pointed this out to Mrs Woodroffe she stated that the records she was relying on for this appeal included those to be found on another Court of Appeal file (CA 14/15). Because there was no notice or memorandum to that effect the file for CA 14/15 was not present in Court. Mrs Woodroffe intimated that an adequate record would be found on that file. On inspecting that file since the hearing, the Court has found that its record on appeal is nothing of the sort. It is confined to distinct proceedings against different defendants. Those proceedings were not commenced until 2014. The appeal with which we are currently concerned arises from proceedings commenced in 2002 and heard in 2003. Nothing from that file before 2014 is before us. Mrs Woodroffe should not have left this Court with the impression that she had filed an adequate record on appeal and that the problem was simply that it was to be found on another file. The Court relies on utter candour from counsel appearing before it.

[9] An additional appeal was filed far too late. The appellants filed an application for special leave to appeal in relation to Constitutional matters. This was not filed until the last working day before the hearing (in electronic form) and on the morning of the hearing (in hard copy).

[10] The appellants’ submissions were also filed far too late and did not include any chronology. Paragraph 2(a) of the Court of Appeal Practice Direction requires an appellant to file and serve its synopsis of submissions and chronology 21 days before the commencement of the relevant Court of Appeal session. Mrs Woodroffe’s submissions were included in the bundle of documents sent electronically on the last working day before the hearing and filed in hard copy on the morning of the hearing. They did not include any chronology.

[11] There was ample time in which to attend to those matters. The appellants filed their principal appeal three months ago. Their persistent failure to follow proper procedures has been unfair to the respondents, placed unnecessary pressure on Court staff and greatly increased the burden on members of the Court. We trust that Mrs Woodroffe will not appear in this Court again without studying, and strictly complying with, the Court of Appeal Rules and the Court of Appeal Practice Direction. It is also a reminder to others of the standards we expect in this Court.

[12] Although we would have preferred more information, the sequence in these proceedings appears to have been broadly as follows.

[13] The father of the first-named appellant, Vaeluaga Leilua, appears to have been the owner of two parcels of land on Upolu. One is particularly valuable land at Tuloto in the commercial area of Apia. The other is at Lotopa about 20 minutes drive from Apia.

[14] In 1989 Vaeluaga mortgaged the Tuloto land to Samoa Breweries Ltd. In 1995 he conveyed both parcels of land to his son, Molio’o Leilua (the appellant’s brother) by way of gift. The earlier mortgage was discharged and replaced with one from Molioó to Samoa Breweries. It is the validity of the conveyance to Molio’o that is the central focus of the dispute.

[15] The appellant’s father, Vaeluaga Leilua, died on 3 October 1997. After the father had died the appellant and her other brother, Leilua Alosia Vaeluaga, lodged caveats against both properties. They also commenced proceedings in the Supreme Court challenging the conveyance to their brother Molio’o (CP 172/02). The proceedings were heard in 2003. The trial judge reserved his decision. No reasoned decision has ever been given.

[16] While the parties were waiting for a decision in CP 172/02 a number of critical events occurred. The defendant Molio’o died. As a result the mortgage over the Tuloto land to Samoa Breweries fell into arrears. In late 2013 Samoa Breweries exercised its power of sale. Under the power of sale the Tuloto land was sold to Samoa Stationery and Books Ltd. Although the caveators took steps to resist registration of the transfer to Samoa Stationery, these were unsuccessful for reasons which are now controversial. As a result of that transfer, title to the Tuloto land is currently held by Samoa Stationery.

[17] In 2014 Mrs Woodroffe was instructed as fresh counsel for the appellants. She made persistent attempts to obtain a reasoned decision from the trial judge in CP 172/02. She also issued fresh proceedings against a new set of defendants – Ruby Drake (the appellants’ former solicitor), the Attorney General (whose wife was associated with Samoa Stationery) and the Ministry of Natural Resources and Environment (the department which controlled the land registry). The new proceedings concerned the circumstances in which Samoa Stationery was able to secure title to the Tuloto land notwithstanding the appellants’ caveat.

[18] On 15 July 2014 the trial judge in CP 172/02 issued a decision labelled “Interim Decision”. It consisted of the two sentences “I have decided that the deeds of conveyance by way of gift from Vaeluaga Leilua to the defendant were fraudulent.” and “However, I will not at this stage grant the declaration and order sought by the plaintiff until I hear counsel on the position of any third party mortgagee.”

[19] The proceedings in CP 172/02 appear to have been called before the trial judge for mention on a number of occasions in the latter half of 2014 and 2015. Mrs Woodroffe pressed for remedies which would restore the Tuloto and Lotopa properties to the appellants. Although not a party, Samoa Stationery was permitted a right of audience to oppose such an order in relation to the Tuloto land.

[20] On 7 September 2015 the appellants filed a formal application seeking orders for the return of land failing which they sought the trial judge’s recusal from further involvement in the proceedings. The application came before the trial judge on 23 November 2015. Mrs Woodroffe advises that the orders were orally refused without reasons.

[21] So far Mrs Woodroffe’s efforts to secure orders for the return of the land have been in vain. There is no sign that the proceedings are currently heading towards resolution in their present form.

[22] With exceptions which do not apply here, there can be no appeal to this Court without a relevant Supreme Court decision.^[1]

[23] We accept that in principle the “interim decision” of 15 July 2014 could be regarded as a decision for appeal purposes. It clearly impacts on the parties’ rights in the sense that it finds that the critical conveyance was fraudulent. However that part of the decision favoured the appellants. Mrs Woodroffe made it clear that her clients were not appealing against that finding. On the contrary, it was Mr Fepuleai who informed us that once reasons are made available, his own clients may wish to appeal against that finding.

[24] The second part of the decision declined to grant an immediate remedy. It was not a refusal to grant a remedy altogether but a refusal to grant one before taking the further step of hearing from counsel on the position of any third party mortgagee. We accept that at least in theory the refusal to grant a remedy immediately might be regarded as a decision adverse to the appellants’ interests. Mrs Woodroffe advises that the refusal in the interim decision was reinforced by the trial judge’s later oral refusal to grant a remedy when the matter came back before him on 23 November 2015. That appears to provide the appellants with an appealable decision from which an appeal can be brought to this Court.

[25] The appellants also appeal against the trial judge’s oral refusal to recuse himself on 23 November 2015. We accept that in jurisdictional terms that was a second appealable decision.

[26] Thirdly the appellants seek to appeal against on a series of oral statements by the trial judge at various mentions hearings in 2015. These are said to have included remarks that the appellants would not receive the Tuloto land; that they ought to abandon their claim to that land; that they should instead accept the land at Lotopa; that the wrong parties had been sued; and that the appellants should sue the estate of the late Molio’o. We are not presently satisfied that these were anything other than comments and suggestions. They do not appear to amount to decisions from which any appeal lies to this Court.

[27] Finally the appellants sought to appeal from a series of statements said to have been made by the trial judge concerning the way in which this case was to be progressed or not progressed at a procedural level. These appear to have been essentially case management directions. No particular direction has been identified as a decision from which the appellant now appeals. The appellant’s underlying complaint is that the Court has not progressed the proceedings in the way that it ought to have.

[28] Whether or not there may be a constitutional remedy for delay is something to which we will return later in this judgment. For appeal purposes it is sufficient to say that this Court is disinclined to interfere with case management decisions in the Supreme Court. That is particularly the case in the absence of a clearly identified decision, compliance with proper appeal procedures in relation to that decision, and presentation of proper argument on appeal in relation to that decision. These conditions have not been satisfied.

[29] We are left with appeals against two decisions - the trial judge’s refusal to grant remedies to the appellants before further steps were taken in the proceedings before him and his refusal to recuse himself.

[30] On the face of it the Judge’s refusal to order that the Tuloto property pass to the appellants without further steps in the proceedings was entirely appropriate. One cannot ignore the role of Samoa Stationery, and potentially the mortgagee Samoa Breweries. Litigation might well be necessary to determine the competing rights of persons whose property has been alienated by fraud and those of a bona fide purchaser for value without notice who secures legal title. It might also be necessary to determine whether, in the absence of a proprietary remedy, the appellants have an alternative remedy against the respondents in damages.

[31] It is less clear why a remedy has not been granted already in relation to the Lotopa property.

[32] However we think it would be premature for this Court to determine the appeal in relation to remedies on the narrow basis provided to us. We would have a better grasp of the case if the trial judge gives a reasoned decision in relation to the 2003 hearing. If remedies are to be further delayed or denied in the Supreme Court, a reasoned decision should also be given on that aspect as well, whether by the original trial judge or another judge after further steps in that regard.

[33] If the trial judge is unable to give the principal decision due to the lapse of time since 2003 the only formal alternative might be a rehearing of the original trial. That would obviously be very much a last resort given the additional time, expense, cost to the parties, and difficulty in trying to find old evidence, that would result.

[34] The appellants also appeal against the trial judge’s refusal to recuse himself. In our view it would be premature to decide that aspect of the case. Clearly it is important for the trial judge to continue at least until the principal judgment is given. He might well think that in all the circumstances it would be preferable for some other judge to take over the proceedings from that point on. However we need not consider whether any formal recusal order is justified unless and until that aspect comes back before this Court at the next appeal session.

[35] The appellants sought to appeal to this Court against steps taken and omitted by the trial judge which were said to breach the Constitution. In particular it was alleged that there had been inordinate delay in the delivery of the principal judgment and in the provision of remedies following the interim decision. Mrs Woodroffe pointed out that every person has a constitutional right to a fair and public hearing of his or her civil rights and obligations within a reasonable time.^[2] We accept that there is a strong argument that a hearing is not concluded for this purpose until a decision is given. We also accept that the Supreme Court has the jurisdiction to grant wide-ranging remedies for breach of the Constitution by those in authority including directions to other bodies and damages caused by the constitutional breaches.^[3]

[36] However we do not accept that the application for constitutional remedies has been properly brought before this Court. Mrs Woodroffe submitted that since the Supreme Court had the jurisdiction to give a remedy, and had declined to give one, an appeal might be brought direct to the Court of Appeal. However no proceedings seeking a constitutional remedy have yet been commenced in the Supreme Court. All that is alleged is that in the course of proceedings of a more conventional civil nature, a judge in the Supreme Court has himself breached the Constitution. Unless fresh proceedings were brought in the Supreme Court seeking a constitutional remedy against the State of Samoa, and the Supreme Court gave its decision on that cause of action, there would be no jurisdiction for an appeal to this Court.

[37] To our knowledge there are currently two sets of proceedings in the Supreme Court, one being the present proceedings CP 172/02 and the other being the proceedings arising from the revoked caveat, CP 114/14.

[38] Whether in fresh proceedings or by way of joinder to existing proceedings, it is difficult to see how the rights to the Tutolo property could be determined without the inclusion of Samoa Stationery, and perhaps the mortgagee from whom that company bought the property, Samoa Breweries. Properly framed pleadings would need to identify why Samoa Breweries is to lose the title that it already has if that allegation is to be pursued. There is also the potential for fresh proceedings if the appellants decided to pursue the constitutional remedies to which Mrs Woodroffe referred.

[39] Two possibilities follow. First, it might be thought that all relevant proceedings ought to be case-managed together, and possibly even heard together at one substantive hearing. That is something for the Supreme Court to determine. Secondly this dispute would seem to cry out for mediation once all the relevant parties, and their respective interests and trial risks in the litigation, have been better identified.

[40] We adjourn this appeal to the next session of the Court of Appeal to allow time for the following:

HONOURABLE JUSTICE FISHER
HONOURABLE JUSTICE PANCKHURST
HONOURABLE JUSTICE NELSON

^[1] Constitution art 80(1); Judicature Ordinance s 45.
^[2] Constitution art 9(1).

Court of Appeal of Samoa

Pune v Vaeluaga [2016] WSCA 4 (19 February 2016)