Mautofu v Selesele [2008] WSSC 112 (20 August 2008)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

AFAMASAGA FAUMUINA FUIMAONO
MANULELEUA MAUTOFU
of Vaimoso, Reverend.
Plaintiff

AND:

AULAVEMAI TOGAMAUGA VALASI TAFITO SELESELE
of Vaimoso, Matai.
Defendant

Counsels: Mr RT Faaiuaso for the plaintiff
Mr TRS Toailoa for the defendant

Hearing: 20 August 2008
Ruling: 20 August 2008

ORAL RULING OF NELSON J - on an application to disqualify

Today is the day for trial of these proceedings and I note they were set down for hearing today before me some time ago. It therefore takes me by surprise that on trial day counsel for the defendant has raised an objection to my presiding in this trial. I say that because this is a matter that should have been raised before hand so that it can be dealt with before hand and not on trial day. That way if it is necessary for another judge to be allocated to this matter then that can be done. I make this point because I do not wish to encourage this to be a precedent. It is incumbent on me however to deal with the application that has been made and the application seems essentially based on the fact that I have dealt with two interim applications in this matter.

The first was a motion to strike out the plaintiffs claim which I declined for the reasons given in the courts written decision dated 14th January this year. The second interim application was one to rescind the interim injunction granted by the Chief Justice in this matter. The application to rescind was denied for the reasons again given in the above referred judgment but I made a variation to the terms of the interim injunction reducing the scope of the injunction to one third of the amount claimed because if the plaintiff is entitled to anything it appears that is all he is entitled to. It is now claimed that in the course of that exercise the court made certain findings on issues which are relevant to this case and therefore my mind has been made up in respect of those issues.

As a general rule judges are often required to deal with interim applications pending the full trial of a matter. There is nothing unusual or inappropriate about such a practice. In the course of such an exercise of dealing with interim applications the judge is bound to apply applicable principles of law to the particular application before him. And in the course of that the judge has sometimes to make certain findings of fact based on the material placed before him. But this does not mean that the judge has therefore made up his mind conclusively in relation to such facts. It means only that the judicial officer has drawn certain conclusions on the facts before it which usually are not all the facts by the very nature of the beast which is an interim application based on documentary evidence only, evidence which is sometimes limited and incomplete. Conclusions are therefore only for the purposes of the interim application and they do not bind the court when it comes to a full hearing of a matter. Because new facts can emerge at a full trial of the matter and new interpretations and conclusions may require to be drawn based on such facts. Any findings made in an interlocutory stage does not bind the court in any way.

The complaint here firstly relates specifically to my finding on page 3 second paragraph that this claim has been brought on behalf of a title holder resident in New Zealand. The defendants counsel submits that there is no such reference contained in the pleadings and says that they show that the plaintiff is bringing this action on his own account. I have perused the file again and found that that is not correct. Part of the material placed before the court in considering the strike out motion which is the part of the judgment complained about consisted of affidavits filed by the plaintiff and the defendant. The principles of a strike out motion provide that such affidavits can be relied on providing they are not in serious conflict. The plaintiffs affidavit in paragraph 1.1.4 refers to an express authority from the title holder resident in New Zealand Aulavemai Palisi to carry out enquiries into monies received in respect of the Aulavemai title. The copy of that authority is attached to the affidavit as an exhibit and it reads as follows: ("Exh. B" read out by Registrar).

The affidavit filed by the defendant in this matter does not question the validity of this authority and indeed in paragraph 5 thereof expressly acknowledges that the title holder Aulavemai Palisi resides permanently in New Zealand and does not live in Vaimoso. From those pieces of evidence the court concluded that the plaintiff is bringing this claim on behalf of Aulavemai Palisi who resides in New Zealand. That was a proper conclusion properly drawn on the evidence before it. But if it is wrong then the evidence at this hearing will no doubt show that and if that is what is shown by the evidence, then the court is quite free and indeed must depart from its earlier finding. Because the earlier finding was based on what was before it at that time.

The other part challenged is my finding on the third and fourth paragraphs that prima facie the pule and control over the customary lands of the Aulavemai title are shared amongst the three title holders and that prima facie the three title holders have an equal say in disposition of any compensation monies.

Counsel placed particular emphasis on these findings. But the important words in the passage are the words "prima facie" which means on the face of it. It does not mean that this is a definitive conclusion of the facts because the court has yet to hear the full facts. The definitive conclusions are those to be drawn at the conclusion of the hearing today in the hearing of all the evidence not from findings made for the purposes of a preliminary application or motion. It is important to bear in mind that the test in a motion to strike out application is whether the plaintiffs case is so clearly untenable that it cannot succeed. A different test to that needs to be applied in the full hearing of a matter where the court is required to consider whether the plaintiff proves his claim on a balance of probabilities. The two are very different and are not to be confused.

The application is declined.

JUSTICE NELSON