In re the Estate of Kapisi Nee Nee Estate [2003] WSSC 32 (15 October 2003)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

IN THE MATTER of the Land Registration Act 1992/1993

AND

IN THE MATTER of an application by RONALD NEE NEE and FRANCIS NEE NEE both of Auckland, New Zealand, Landscaper and Beneficiary respectively,
as administrators of the ESTATE OF KAPISI NEE NEE
APPLICANTS

AND

PETAIA NEE NEE
of Auckland, New Zealand, Workman
FIRST RESPONDENT

AND

SEFULU TINOI
of Tulaele, Samoa, Workman
SECOND RESPONDENT

Counsel: Mr AP Petaia for the Applicants
Mr TK Enari for the First and Second Respondents

Hearing: 15 October 2003
Decision: 15 October 2003

ORAL DECISION OF JUSTICE DOHERTY

The second respondent in this action makes application to this court by way of notice of motion for evidence of two witnesses to be taken outside the jurisdiction.

The notice of motion seeks the evidence of Penu Nee Nee and Bessie Molocijv to be taken in Auckland in New Zealand. It now transpires that Mr Nee Nee is deceased and therefore the application is only in respect of Bessie Molocijv.

The application or the notice of motion is brought upon the grounds that the witness is too old and sick to travel and that her evidence is vital to the case for the respondents. In support of the notice of motion there is an affidavit by one Eti Nee Nee. He is resident in New Zealand and is the brother of the first respondent. There may well be some blood interest but he is not a party directly to these proceedings. His evidence basically is that Ms Molocijv is over 70 years of age, she has recently had a heart operation and “I do not think she is able to travel to Samoa”. The affidavit then makes observations about what would be in the interests of justice namely to allow the witness to have her evidence taken in New Zealand.

For the applicants in the action there is an opposition. The opposition refers substantially to the merits or otherwise of the evidence of the witness, together with the fact that at best evidence from the witness would be hearsay. The applicant in the action (the respondent in this motion) has proceeded on the assumption that what is sought is evidence by way of affidavit to be sworn in New Zealand and to be admitted as the evidence in this case.

Rule 61 of the Supreme Court Civil Procedurals 1980 provides that leave of the court is necessary for this to happen.

Mr Enari for the applicant in this motion has advised that what is sought is that evidence would be taken in the normal way in New Zealand probably before a registrar of the High Court of New Zealand and that the parties would have the usual ability to examine, cross examine and re examine the witness. That evidence would then be put before the Court in the action here in Samoa.

The usual principle for the hearing of cases such as this is that viva voce evidence should be given in the Court and before the judge so that the judge of the case can see, hear and assess the witnesses and their evidence, first hand. That may well be of particular importance in this case and that is a matter stressed by the respondents in this motion; that because of the nature and age of the matters at issue the credibility of the witnesses will be to the fore.

In some cases, and in the interests of justice, the general principle can vary; that is, the general principle that witnesses should in their give viva voce evidence. It is an indulgence of the Court. It is recognised in Rule 61 and the onus is on any applicant for that indulgence. That onus must be satisfied in a principled way. The onus must of course be discharged on the balance of probabilities with the ultimate discretion to the Court. The Court must act and be able to act upon proper information before it. Here there is a difficulty in that respect. The affidavit in support of the application is sworn not by any of the respondents but by a blood relative of the first respondent. He says he is authorised to make the affidavit.

The comments of his affidavit also identified difficulties. It is at best hearsay evidence only, about the health of both witnesses but now of course the only remaining witness that we are dealing with. Even that evidence is very basic. It is his opinion that she is not able to travel to Samoa and it is not supported at any way by evidence directly from the witness or from her medical practitioner. There is no explanation in the supporting affidavit as to why she cannot swear her own affidavit or why there cannot be first hand medical practitioner evidence particularly with an opinion as to whether or not there is fitness to travel. Quite frankly, there is simply insufficient evidence of a probative nature upon which the Court can exercise a discretion in favour of the applicant.

The application to take the evidence of Ms Molocijv is dismissed. That leaves the matter of costs.

Costs would ordinarily follow the event in the matter such as this. The Court has held that an evidential threshold has not been reached. Mr Petaia for the respondents in this motion seeks $600.00, being the inclusive costs of filing and preparation of affidavits and for this hearing. Mr Enari informs me that the usual award of costs would be in the range of $300.00. It seems to me in my limited experience that $300.00 is an appropriate amount together with any disbursements. Those disbursements are to be fixed by the Registrar.

JUSTICE DOHERTY