Faumuina v Atoa [2016] WSSC 133 (22 July 2016)

IN THE SUPREME COURT OF SAMOA
Faumuina v Atoa [2016] WSSC 133

Case name:	Faumuina v Atoa
Citation:	[2016] WSSC 133
Decision date:	22 July 2016
Parties:	AFU FAUMUINA in a representative capacity for and on behalf of her family members who were evicted from Tanugamanono
Hearing date(s):	24th and 30th June 2016
File number(s):	CP168/10
Jurisdiction:	Civil
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	JUSTICE VAAI
On appeal from:
Order:	The application to set aside judgment and to grant a rehearing is refused.
Representation:	R Drake for plaintiff/respondent S Ponifasio for defendant/applicant
Catchwords:	Set aside judgment – rehearing – miscarriage of justice – irreparable harm
Words and phrases:
Legislation cited:	Supreme Court Civil Procedure Rules 1980
Cases cited:	Toiaivao Lauano v Samoa National Provident Fund (2009) WSCA 3 (1/5/2009)
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

CP168/10

BETWEEN:

AFU FAUMUINA in a representative capacity for and on behalf of her family members who were evicted from Tanugamanono
Plaintiff/Respondent

AND:

PALAIALII TUVALE ATOA of Tanugamanono, Matai for and on behalf of the Alii and Faipule of Tanugamanono.
Defendant/Applicant

Counsel:
R Drake for plaintiff/respondent
S Ponifasio for defendant/applicant

Ruling: 30 June 2016

Judgment: 22 July 2016

REASONS FOR THE RULING OF THE COURT

These are the reasons for my ruling on the 30^th June 2016 in which I refused the

defendant’s application to set aside judgment.

Introduction

1. By notice of motion dated the 13^th June 2016 the defendant sought orders to:
   • (i) set aside a judgment by default entered against the defendant in a representative capacity in favour of the plaintiff;
   • (ii) grant a rehearing; and
   • (iii) grant such orders as may be necessary and expedient.
2. The grounds upon which the orders sought are:
   • (i) the defendant was sued in a representative capacity for and on behalf of the Alii and Faipule of Tanugamanono;
   • (ii) the defendant was served with the ordinary summons but he never took part in the proceedings in either the Supreme Court or in the Court of Appeal;
   • (iii) the defendant has a substantial ground of defence against the plaintiff’s claim;
   • (iv) the delay is reasonably explained;
   • (v) the plaintiff will not suffer irreparable injury if the judgment is set aside;
   • (vi) there has been a miscarriage of justice; and
   • (vii) the further grounds in the affidavit of the defendant.

Background

3. Following the eviction of the plaintiff and her family from the village of Tanugamanono and subsequent destruction of the plaintiff’s family home and other assets by fire deliberately lit by some members of the village, the defendant and sixteen other matais of Tanugamanono were sued in a representative capacity as members of the village fono (alii and faipule of Tanugamanono village). All the defendants engaged Ms Papalii as their counsel to defend the substantial claim for damages. Hearing of the claim took place in August 2011, April and May 2012. By a written ruling on the 21^st June 2012 Slicer J awarded damages of $963,710 against defendants. On appeal by the 16 defendants, the Court of Appeal on the 31^st January 2014 dismissed the appeal but reduced the award of damages to $863,710.
4. Nine of the defendants were examined during the hearing of the judgment summons application to determine the quantum of the monthly payments towards the judgment debt. On the 15^th August 2014 this court delivered its ruling on the judgment summons application.
5. On the 12^th May 2015 nine of the defendants were at their instigation, declared bankrupt.
6. The defendant in these proceedings is seeking orders to set aside the judgment of Slicer J and to grant a rehearing.

Relevant Law

7. The jurisdiction to set aside a default judgment is provided by rule 140 of the Supreme Court Civil Procedure Rules 1980 which states that:
   • “140. Setting aside Judgment or Order given in absence of Defendant - (1) Where in any proceedings a defendant does not appear at the hearing and a judgment or order is given or made against him in his absence, the judgment or order may on application be set aside and a new hearing may be granted.
   • “(2) The application may, if the parties are present, be made on the day on which the judgment or order was given or made, and in any other case shall be made on notice.”

Rule 141 goes on to say:

“141. Rehearing – (1) The Court shall in every proceeding have the power to order a rehearing to be had upon such terms as it thinks reasonable.

Provided that a rehearing shall not be granted on an application made more than fourteen days after the judgment or order, unless the Court is satisfied that the application could not reasonably be made sooner.

8. Both rules 140 and 141 were considered by the Court of Appeal in Toiaivao Lauano v Samoa National Provident Fund (2009) WSCA 3 (1/5/2009). The discretion to grant a rehearing though unfettered the applicant must establish:
   • (i) a substantial ground of defence;
   • (ii) that the delay is reasonably explained, and
   • (iii) that the plaintiff will not suffer irreparable injury if the judgment is set aside.
9. Both counsels have filed substantial submission which addressed the three principal considerations stated in Toaivao Lauano v Samoa National Provident Fund. With due respect however, rules 140 and 141 do not apply to the judgment of Slicer J. In the first place the judgment was not a default judgment, the defendants were represented by counsel; a number of defendants were called as witnesses and the trial was conducted over a number of days. The judgment was challenged by the defendant by way of appeal in accordance with the relevant rules and procedure. Rules 140 and 141 quite plainly covers situations in which the trial proceeded without the defendant being heard and judgment given against him or her.
10. However, in the event that I am mistaken, I shall proceed to deal with the submissions by counsels.

Delay

11. The application to set aside was filed some four years after judgment was entered. In explaining the delay the defendant said that the summons served on him in 2010 were given by him to the pulenuu (village mayor). He also told the pulenuu to remove his name as a party and he was assured by the pulenuu that his name will be removed. From then on the defendant believed his name has been removed; he therefore did not attend any meetings with the defendant’s solicitor or any other meeting relating to the court case. He retired from work in 2012 and travelled regularly to New Zealand for medical checks. In August 2015 he was made aware that his name has not been removed as a party when he was issued with a departure prohibition order.
12. Since August 2015 there was a 10 month delay before this application to set aside was filed.
13. At the time the defendant was served with the summons in 2010 he was employed as the Supervising Engineer for the Electric Power Corporation, a position he held until he retired in 2012. His explanation that he relied on the pulenuu to remove his name as a party is suspect and in my view could not be termed as a reasonable explanation. He was living within the village where fund raising activities were held to raise funds for the judgment debt and other debts mentioned in the court’s ruling of 15 of August 2014, referred to in paragraph 4 above. The defendants and other members of the village obviously agreed to seek counsel of Ms Papalii to represent them as a group. In any event there is no reasonable explanation for the delay of 10 months between August 2015 (when the departure prohibition order was served) and the 13 of June 2016 (when this application was filed).

Substantial ground of defence.

14. The principal defence now advanced by the defendant is that he was not a tortfeasor and he therefore cannot be liable for the tort committed by others. The argument is advanced on the basis that the defendant was not present at the village meetings which made the decrees of banishment against the plaintiff.
15. The defendants did through their counsel filed a Statement of Defence which was duly considered in the written decision of Slicer J. Paragraph 6(c) of the Statement of Defence states:
    • “That the stone throwing incident caused much anger amongst the villagers and it was prudent that the Council stepped in to intervene and to restore security, peace and harmony amongst all concerned. Yes the defendants admit to banishing the plaintiff on 2 October having decreed that it was in their best interest and for their safety given that the matter had gotten out of control and it was important to restore peace, and harmony first.”

In his judgment at paragraph 139, Slicer J said:

“The Court does not accept the defendants acted to protect the safety of the plaintiff and her family. The defendants acted:

• (1) Out of malice
• (2) In contempt of the Land and Titles Court
• (3) In breach of procedural fairness
• (4) Beyond power
• (5) In reckless indifference to the consequences of their conduct and inaction.
• (6) In a manner calculated to cause harm.”

16. The defendant has no substantial ground of defence.

Irreparable harm to the plaintiff

17. To grant a rehearing four years after the challenged decision was given and confirmed on appeal would undoubtedly cause irreparable harm. To allow the defendants to continue to display their contempt towards the plaintiff through a rehearing is irreparable harm.

Result

The application to set aside judgment and to grant a rehearing is refused.

JUSTICE VAAI