Attorney General v Leapai [2017] WSSC 105 (31 July 2017)

SUPREME COURT OF SAMOA
Attorney General v Leapai [2017] WSSC 105

Case name:	Attorney General v Leapai
Citation:	[2017] WSSC 105
Decision date:	Conclusion: 21 July 2017 Judgment: 31 July 2017
Parties:	ATTORNEY GENREAL AND OTHERS v LEAPAI ENELE LEAPAI and LEAPAI RICHARD BROWN both of Vaimoso, Matai. APIA EXPORT FISH PACKERS LIMITED, a duly incorporated company of Samoa.
Hearing date(s):	26 April 2017; 2, 5, 12 May 2017
File number(s):	MISC 216/15
Jurisdiction:	Civil
Place of delivery:	Supreme Court of Samoa, Mulinuu, Apia
Judge(s):	CHIEF JUSTICE SAPOLU
On appeal from:
Order:	- The default judgment of 9 September 1996 is set aside. - Adjourned to Monday, 31 July 2017 at 2:00pm for the first respondents to file and serve a fresh statement of claim should they wish to continue with these proceedings.
Representation:	G Nelson and T Peniamina for first applicant P Valoia for second applicant K Koria for third and fifth applicants J Brunt for fourth applicant A Su’a for sixth applicant S Leung Wai for seventh applicant L R Schuster for eighth applicant M G Latu for first respondents Second respondent (withdrew from these proceedings
Catchwords:	bona fide purchaser for valuable consideration without notice - ex debito justitiae - inherent jurisdiction to set aside judgment – irregularly obtained judgment – motion to set aside judgment – natural justice – regularly obtained judgment ––right to a fair trial–
Words and phrases:
Legislation cited:	Constitution: Articles 9 and 14 rules 140 and 141 Supreme Court (Civil Procedure) Rules 1980.
Cases cited:	Arnott v Autisan Holdings Ltd, Ben Nevis Forestry Ventures Ltd v Commissioner of Inland Revenue [2013] NZHC 441 Carter v Ioane [2010] WSSC 14 Faataualofa v Faataualofa [2012] WSSC 37; Fesolai v Boon [2016] WSSC 206Fetherston v BNZ [2008] NZHC 405 Lauano v Samoa National Provident Fund Board [2009] WSCA 3 Mehta and Mehta v Grimshaw & Co [2008] NZHC 294 McNab v Matthews [2014] NZHC 580 Paterson v Wellington Free Kindergarten Association Incorporated [1996] NZLR 957 R v Holt [2007] NZHC 1150, para [48] Russell v Cox [1983] NZLR 654 Singapore Airlines Ltd v Mistry [2014] NZHC 1055 Stowers v Stowers [2010] WSSC 36;
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

ATTORNEY GENERAL on behalf of the Ministry of Natural Resources and Environment of the Government of Samoa.
First Applicant

A N D

ANTHONY PEREIRA of Saleufi, Businessman.
Second Applicant

A N D

H J KEIL & COMPANY LIMITED a duly incorporated company with its registered office at Taufusi, Apia, Samoa.
Third Applicant

A N D

KYLE FAAMUMU KEIL and ADELE FUATINO RETZLAFF KEIL both of Vaigaga, Business Proprietors.

Fourth Applicants

A N D

TAFAOATA O SAMOA 2000 LIMITED, a duly incorporated company having its registered office at Fugalei, Vaimauga Sisifo.
Fifth Applicant

A N D

SALAFAI METAL INDUSTRIES LIMITED
Sixth Applicant

A N D

CONGREGATINAL CHRISTIAN CHURCH OF SAMOA
Seventh Applicant

A N D

MISIPALAUNI FAATAU of Fugalei, Minister of Religion.
Eighth Applicant

A N D

LEAPAI ENELE LEAPAI and LEAPAI RICHARD BROWN both of Vaimoso, Matai.
First Respondents

A N D

APIA EXPORT FISH PACKERS LIMITED, a duly incorporated company of Samoa.
Second Respondent

Counsel:
G Nelson and T Peniamina for first applicant
P Valoia for second applicant
K Koria for third and fifth applicants
J Brunt for fourth applicant
A Su’a for sixth applicant
S Leung Wai for seventh applicant
L R Schuster for eighth applicant
M G Latu for first respondents
Second respondent (withdrew from these proceedings)

Hearing: 26 April 2017; 2, 5, 12 May 2017

Conclusion: 21 July 2017

Judgment 31 July 2017

JUDGMENT OF SAPOLU CJ

Introduction

1. These proceedings are concerned with motions by the eight applicants to set aside a judgment by formal proof given by this Court on 9 September 1996. In that judgment, it was held that survey plans 4444L and 5561 and cadastral 13 are invalid as they are incorrect and the Court hereby orders that such survey plans be corrected so that they be in accordance with the plan of parcel 52 dated 28 July 1936 and plan flur 4A.
2. What had happened was that the late Leapai Alaivaa as plaintiff and matai of the first respondents family at Vaimoso had brought civil proceedings against the Attorney General and the Director of Lands, Survey and Environment as defendants in 1996. Unfortunately, no record could be found of the 1996 proceedings except for a copy of the judgment by formal proof that was issued by the Court. From that judgment, one can infer that the late Leapai Alaivaa had filed a statement of claim dated 22 July 1996 claiming against the defendants that survey plans 4444L and 5561 and cadastral 13 should be declared invalid as they are incorrect and that those survey plans should be corrected so that they are in accordance with the plan of parcel 52 dated 28 July 1936 and plan flur 4A.
3. When the civil proceedings by the late Leapai Alaivaa was called before the Court in 1996, the Attorney General and the Director of Lands, Survey and Environment, for some unexplained reason, did not appear. On 9 September 1996, judgment by formal proof was entered for the plaintiff against the defendants. Except for the Attorney General who is the first applicant in the present proceedings, none of the other applicants was cited as a party to the 1996 civil proceedings by the late Leapai Alaivaa. As a result, none of those applicants appeared at the 1996 proceedings. But the judgment by formal proof of 9 September 1996 has affected their respective lands some of which were acquired prior to the judgment whilst other lands were acquired after the judgment.
4. Subsequently, the late Leapai Alaivaa filed an application for a declaratory order in 2003 citing the Attorney General and one Theresa McCarthy as respondents seeking a declaration that the boundary between parcels 523 and 53 on plan 5561 and plan 4444L is the correct boundary. Again, except for the Attorney General who is the first applicant in the present proceedings, none of the other applicants in the present proceedings was cited as a party by Leapai Alaivaa in his application for a declaratory order in 2003. As a result, none of the other applicants was aware of the application for a declaratory order. Subsequently, the Attorney General and Theresa McCarthy moved to strike out the application for a declaratory order. On 27 January 2003, Vaai J dismissed the strike out motions.
5. By notice of motion dated February 2014, the Attorney General as first applicants sought to set aside the judgment of 9 September 1996. An amended notice of motion to set aside judgment dated 12 February 2015 was subsequently filed. The other applicants filed motions to set aside judgment in 2016. Leapai Enele Leapai and Leapai Richard Brown who are the successors to the title Leapai held by the late Leapai Alaivaa have been cited in those motions as the first respondents. It is those motions that I have to deal with in the present proceedings. For convenience, I have decided to deal first with each of the motions by the second to the eighth applicants in turn, and then with the motion by the first applicant. The reason for dealing separately with each of these motions is that the circumstances relating to each motion are different.

Approaches by the applicants to setting aside the 1996 default judgment by formal proof

6. There are essentially three approaches which appear from the applicants motions to set aside the 1996 default judgment by formal proof. The first is based on rules 140 and 143 of the Supreme Court (Civil Procedure) Rules 1980; the second approach is based on the Court’s inherent jurisdiction; and the third approach is based on alleged breaches of the right to a fair trial provided in Article 9 of the Constitution. Some of these approaches have been run together in the same motion so that it has resulted in confusion.

Relevant principles to a motion to set aside judgment

7. I will deal with the principles which apply to a motion to set aside a judgment on the basis of the approaches which appear from the various motions by the applicants. I will start with the approach to set aside a default judgment based on rules 140 and 141 of the Supreme Court (Civil Procedures) Rules 1980, then with the approach to set aside judgment based on the inherent jurisdiction of the Court, then with the approach to set aside judgment based on the alleged breaches of the right to a fair trial in Article 9 of the Constitution, and finally with the approach to set aside judgment on the basis of the alleged breach of the right to adequate compensation for property compulsorily taken provided in Article 14 of the Constitution.

(a) Rules 140 and 141 of the Supreme Court (Civil Procedure) Rules 1980

8. Rule 140, provides:
   • “(1) Where in any proceedings a defendant, or a defendant to a counter-claim, does not appear at the hearing and a judgment or order is given or made against him in his absence, the judgment or order and any execution thereon 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 every other case shall be made on notice.

“(3) Notice of a new hearing pursuant to this rule shall be in the form 29 and shall be served on the plaintiff seven clear days before the date fixed for the new hearing”

9. It is clear from r.140 that it only applies to proceedings where a defendant to a counter-claim does not appear at the hearing and a judgment or order is given or made against him in his absence. That being so, the only applicant in the present proceedings that was a defendant in the 1996 proceedings when the default judgment by formal proof was entered on 9 September 1996 was the Attorney General who is the first applicant in the present proceedings. All the other applicants were not defendants or parties in any form in the 1996 proceedings. Rule 140 therefore does not apply to those applicants except the first applicant.
10. Furthermore, r.140 implies that a defendant has had prior notice of the proceedings because the proceedings have been served on him but he fails to appear at the hearing. The Attorney General as first applicant is the only applicant in the present proceedings that was served with the plaintiff’s civil claim in the 1996 proceedings because he was one of the two defendants in those proceedings. All the other applicants in the present proceedings were not served because none of them was cited as a defendant in the 1996 proceedings. On that basis, r.140 also does not apply to those other applicants except the Attorney General the first applicant.
11. But the first applicant may have difficulties relying on r.140 because of the delay in bringing this motion to set aside judgment given the time restriction provided in r.141 for a rehearing. Rule 141, insofar as relevant, provides:

“(1) The Court shall in every proceeding have the power to order a rehearing to be had upon such terms as it thinks reasonable, and in the meantime to stay proceedings:

“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”./

12. Counsel for the applicants who relied on rules 140 and 141 in their motions to set aside cited the decision of the Court of Appeal in Lauano v Samoa National Provident Fund Board [2008] WSCA 3. In that case, the Court of Appeal upheld the judgment of Nelson J in this Court and held that to succeed in a motion to set aside a default judgment, the applicant must establish (1) a substantial ground of defence, (2) a reasonable justification for the delay, and (3) the plaintiff will not suffer irreparable harm if the judgment is set aside. The Court then cited the decision of the New Zealand Court of Appeal in Russell v Cox [1983] NZLR 654.
13. In both Lauano v Samoa National Provident Fund Board [2009] WSCA 3 and Russell v Cox [1983] NZLR 654, the Court was concerned with what is called a “regularly obtained judgment” as opposed to what is called an “irregularly obtained judgment”. The principles which apply to a motion to set aside a regularly obtained judgment are different from the principles which apply to a motion to set aside an irregularly obtained judgment. This distinction needs to be understood because both types of motion to set aside can be brought pursuant to r.140. The distinction almost got blurred and confused in this case because in respect of the first applicant the 1996 judgment is a regularly obtained judgment but in respect of the other applicants the 1996 judgment has the ‘appearance’ of an irregularly obtained judgment.
14. In Mehta and Mehta v Grimshaw & Co [2008] NZHC 294, Duffy J, in a very helpful judgment, said in paras [16] – [19]:
    • “[16] The authorities on applications to set judgments aside have dealt with these applications in the context of various procedural rules, all of which have provided a discretion to set judgments aside. Over the years the language of these rules has altered to some extent. Nonetheless, the Courts, when applying these rules, have always distinguished between judgments that are regularly obtained and those that are irregularly obtained.
    • “[17] In the case of a judgment that has been ‘regularly obtained’ the guiding principles for the exercise of the power to set it aside are to be found in Russell v Cox [1983] NZLR 654. In this case the Court of Appeal identified factors which could be applied to assist with the exercise of the discretion to set a judgment aside. The Court of Appeal referred to one of its earlier decisions in Patterson v Wellington Inc [1966] NZLR 975 in which the Court identified three considerations of ‘dominant importance’. These were:
      • “(i) That the defendant has a substantial ground of defence;
      • “(ii) That the delay is reasonably explained;
      • “(iii) That the plaintiff will not suffer irreparable injury.
    • “[18] In Russell v Cox the Court of Appeal was careful to point out that those factors were not rules of law and were no more than tests by which the justice of the case was to be measured in the context of procedural rules whose overall purpose is to secure the just disposal of litigation (at 659).
    • “[19] When a judgment has been irregularly obtained a different set of principles apply. There is a long line of authority for the principle that an irregularly obtained default judgment can be set aside ex debito justitiae: see Arnott v Artisan Holdings Ltd (1998) 12 PRNZ 205; Richmond v Heskett Holdings Ltd (1995) 8 PRNZ 527; Broadbank Corp Ltd v Alexander (1986) 1 PRNZ 117; O’Shannessy v Dasun Hair Designers Ltd [1980] 2 NZLR 652; Baker v State Insurance Office General Manager 31/8/88 HC WN CP 282/88 McGechan J; and ANZ Banking Group (New Zealand) Ord and Ors HC AK CP 679/98 26 January 2000 Master Faire.
    • “[20] In O’Shannessy v Dasun Hair Designers Ltd, Greig J observed at 654:
      • “‘The authorities are plain that where a default judgment is irregularly obtained the defendant is entitled ex debito justitiae to a setting aside. It is to be noted further that it is an irregularity in obtaining the judgment rather than the irregularity in the judgment itself’
    • “It seems to me to be implicit within the formulation of this principle in O’Shannessy and the other cases in which the principle has been applied, that to permit an irregularly obtained judgment to stand would be a miscarriage of justice”.
15. Duffy J then referred in paras [21] – [23] to another line of authority where the Court may sever an irregularity from an irregularly obtained judgment leaving the rest of the judgment to stand. Her Honour said:
    • “[21] There is another line of authority where the Courts have been prepared to cure an irregularly obtained judgment by severing the irregularity. Baker v State Insurance Officer General Manager HC WN CP 282/88 31 August 1988 and Karochine 15 Ltd v R P Charans Investments Ltd HC HAM M338/94 13 December 1994, Hammond J exemplify this approach.
    • “[22] A helpful reconciliation of the authorities is to be found in Arnott v Artisan Holdings Ltd. In that case Gendall J reviewed the case law extensively. He concluded that the procedural rules of both the High Court and the District Courts vested them with broad discretionary authority to deal with applications to set aside judgments obtained by default. He reconciled the approach in Baker v State Insurance Office General Manager and Korochine 15 Ltd v R P Charans Investments Ltd with the approach in O’Shannessy v Dasun Hair Designers Ltd by suggesting that a Court’s response to an irregularly obtained judgment turned on the extent to which the judgment was irregularly obtained:
      • “‘It is not easy to reconcile the conflicting views or approaches if in fact they be different ...The answer may well lie in the degree of irregularity on the face of the judgment and in the manner in which it was obtained. When judgment is entered or obtained in a way which is not within any of the rules so that a plaintiff has no right at all to obtain it then it is irregularly obtained within the distinction made by Greig J in O’Shannessy.... The setting aside or varying of a judgment ... arises if there may have been a miscarriage of justice which usually arises where the degree of irregularity whether as to process or resulting judgment is substantial.
    • “[23] Gendall J’s analysis of the case law provides a helpful reconciliation of the various statements of principle that fits with the broad discretionary nature of the procedural rules for setting judgments aside. It makes sense to cure a minor irregularity by an application of r.5.rather than to set aside the entire judgment. In Arnott v Autisan Holdings Ltd, for example, the irregularity was the inclusion in the judgment of an award of interest when interest was not available under the judgment by default process by which the judgment was entered. An irregularity of that type is more sensibly dealt with by varying the judgment through severance of the award of interest. It is easy to see why such circumstances should not lead to the entire judgment being set aside. However, it is difficult to see how a substantial irregularity could be cured by a variation of the judgment. It follows that whether or not an irregularly obtained judgment is set aside ex debito justitiae will now depend on the degree of the irregularity.”
16. In similar vein, Lang J in Fetherston v BNZ [2008] NZHC 405, paras [30] – [33] said of a judgment irregularly obtained:
    • “[30] In O’Shannessy v Dasun Hair Designers Ltd [1980] 2 NZLR 652, Greig J said at 654:
      • “‘The authorities are plain that where a default judgment is irregularly obtained the defendant is entitled ex debito justitiae to a setting aside. It is to be noted further that it is an irregularity in obtaining the judgment rather than the irregularity in the judgment itself”.
    • “[31] As Judge Cadenhead noted at [33], however, there is clear authority to support the proposition that the Court has a discretion to decline an application to set aside a judgment even if the judgment has been obtained irregularly: see Schriek v Blackler HC CHCH CP 303/92 1 May 1996 Master Venning.
    • “[32] That principle has been confirmed in various decisions of this Court, two of which the Judge cited in his judgment. In Baker v State Insurance Office General Manager HC WN CP 282/88 31 August 1988, McGechan J held at 3 that, although a judgment that has been obtained irregularly will generally be set aside ex debito justitiae, this is not a cast iron rule. Rather it is ‘merely a reflection of the overarching requirement in this field that the Court guard against miscarriage of justice’. McGechan J noted that in some cases the ends of justice were not best served by setting aside a judgment that had been irregularly obtained.
    • “[33] In Korochine 15 Ltd v Charans Investments Ltd HC HAM M338/9 a residual discretion to decline an application to set aside an irregularly obtained judgment, it must exercise circumspection in validating such a judgment.
    • “[34] Gendall J discussed this issue in some detail in Arnott v Artisan Holdings Ltd (1998) 12 PRNZ 205. After reviewing the authorities he said at 211:
      • “It is not easy to reconcile the conflicting views or approaches if in fact they are different... The answer may well lie in the degree of irregularity on the face of the judgment and in the manner in which it was obtained. When judgment is entered or obtained in a way which is not within any of the rules so that a plaintiff has no right at all to obtain it then it is irregularly obtained within the distinction made by Greig J in O’Shannessy... The setting aside, or varying of, a judgment... arises if there may have been a miscarriage of justice which usually arises where the degree of irregularity, whether as to process or resulting judgment is substantial’”.
17. Further on at para [37], Lang J went on to say:
    • “[37] The irregularity in this case occurred as a result of the Bank’s failure to serve the proceeding upon Mr Featherstone in accordance with the requirements set out in the Rules. Proper service of a proceeding is obviously a fundamental requirement, because it provides the only safe means of ensuring that the defendant has an opportunity to defend the plaintiff’s claim. It follows, in my view, that any failure to comply strictly with service requirements will generally lead to a judgment being set aside ex debito justitiae. This will occur without further enquiry into the merits of the case, because a defendant is entitled to an opportunity to put the plaintiff to proof regardless of the strength of the plaintiff’s case or the weakness of any possible defence”.
18. In respect of setting aside a judgment that is regularly obtained, Lang J said at paras [42] and [43]:
    • “[42] The judge referred to the well-known decision of Russell v Cox [1983] NZLR 654 where at 659 the Court of Appeal said that three factors needed to be taken into account in deciding whether or not a judgment should be set aside:
      • “(a) Whether the delay by the defendant in responding to proceedings could be reasonably explained.
        • “(b) Whether the plaintiff will suffer irreparable injury if the judgment is set aside.
        • “(c) Whether the defendant has a substantial ground of defence.
    • “[43] Overarching all of these factors is the question of whether the interests of justice require the judgment to be set aside. Of obvious relevance to the determination of that issue is the possibility that the defendant will be deprived of the benefit of an arguable ground of defence if the judgment is not set aside. If that occurs it may lead to a miscarriage of justice”.
19. More recently in Singapore Airlines Ltd v Mistry [2014] NZHC 1055, Associate Judge Smith said in paras [32] – [37]:
    • “[32] The plaintiff says that the judgment should not be set aside, notwithstanding the deficiency in service, because the defendant has no arguable defence. In other words, allowing the judgment to stand will not result in a miscarriage of justice.
    • “[33] The question of whether a summary judgment entered in the defendant’s absence may be set aside in the absence of proof by the defendant that he or she has an available defence, was considered by Duffy J in Pulman v Orix New Zealand Ltd [2008] NZHC 218; (2008) 18 PRNZ 955 (HC). In that case, Duffy J referred to what she described as a long line of authority for the principle that an irregularly obtained default judgment can be set aside. The learned Judge referred to an early formulation of the principle that an irregularly obtained judgment must be set aside ex debito justitiae, in Anlaby v Practorius [1888] UKLawRpKQB 55; (1888) 20 QBD 764. The principle operates on the basis that an irregularly obtained judgment must be set aside, the grounds for this being that the plaintiff had no right to obtain the judgment in the first place, and therefore, it cannot stand. As Duffy J put it:
      • “‘It is implicit within the formulation of this principle that it would be a miscarriage of justice to permit such a judgment to stand’: at para [13]:
    • “[13] And in Broadbank Corporation Ltd v Alexander (1986) 1 PRNZ 117 at 121, Barker J referred to the longstanding principle that, where a default judgment has been irregularly obtained, the defendant in entitled, ex debito justitiae, to have it set aside. Barker J expressed the view that the additional words (in the forerunner for r.12.14) that ‘if it appears to the Court that there has been or may have been a miscarriage of justice’ does not affect the operation of the principle.
    • “[35] However, there are a number of other decisions of the New Zealand Courts which may be regarded as representing an erosion of the principle stated in Anlaby v Praetorius. In Baker v State Insurance Office General Manager HC WN CP/282/288 31 August 1988, McGechan J was prepared to recognise that even when a judgment has been irregularly obtained there will be occasions when the interests of justice are best served by varying the judgment and not by setting it aside. Similarly in Korochine 15 Ltd v R P Charans Investments Ltd HC HAM M338/9, Hammond J took the view that the Courts have a wide discretion when it comes to setting aside judgments, and even an irregularly obtained judgment may stand as a result of the Court making an order to validate what had occurred using the power in the forerunner of r 1.5 of the High Court Rules...
    • “[36] Duffy J also referred to the judgment of Gendall J in Arnott v Artisan Holdings Ltd (1998) 12 PRNZ 205, in which the Judge concluded that the procedural rules vest in the Court a broad discretionary authority to deal with applications to set aside judgments obtained by default, and the Court’s response to an irregularly obtained judgment hinged on the extent to which the judgment was irregularly obtained.
    • “[37] Duffy J preferred the view expressed in Arnott v Artisan Holdings Ltd, concluding at paragraph [20] of her judgment:
      • “‘[Whether] a judgment irregularly obtained is set aside ex debito justitiae or an alternative approach, like that in Baker is followed, turns on the degree of irregularity in a particular case. The approach is consistent with the broad discretionary nature of the current relevant procedural rules in both the High Court and District Courts. It pays regard to the principle implicit in Anlaby, and the cases that follow it, that the existence of a miscarriage of justice is inherent in an irregularly obtained judgment. Nonetheless, it provides a better degree of flexibility than is to be found in the Anlaby approach by allowing, where possible, for minor irregularities in the obtaining of a judgment to be cured by varying it’
    • “[38] At paragraph [19] of her judgment in Pulman v Orix New Zealand Ltd [2008] NZHC 218, Duffy J noted that a substantial irregularity is unlikely to be curable by a variation of the judgment.
    • “[39] In this case, I am satisfied that the irregularity in obtaining summary judgment is substantial, and was sufficient in and of itself to create a miscarriage of justice when judgment was entered in the defendant’s absence. As the Master of the Rolls noted in In re a Debtor [1939] 1 Ch 251 at 256; [1938] 4 A11 ER 92 at 96, correct service on a defendant of the documents by which a proceeding is commenced is fundamental to the defendant’s entitlement to know the case against him, and to have the opportunity to be heard on it. It would in my view set a dangerous precedent if the judgment in this case were allowed to stand”.
20. From the authorities cited and what has been said, five matters may be now be stated. Firstly, only a person who was a defendant in proceedings may bring a motion under rules 140 and 141 of the Supreme Court (Civil Procedure) Rules 1980 to set aside a default judgment entered against him in those proceedings and to seek a rehearing. Secondly, a motion may be brought under 140 to set aside a regularly obtained judgment or to set aside an irregularly obtained judgment. Thirdly, the principles which apply to a motion to set aside a regularly obtained judgment are different from the principles which apply to a motion to set aside an irregularly obtained judgment. Fourthly, the principles which apply to setting aside a regularly obtained judgment are set out in Lauano v Samoa National Provident Fund Board [2009] WSSC 3 citing Russell v Cox [1983] NZLR 654. If the judgment was irregularly obtained the defendant will generally be entitled to have the judgement set aside ex debito justitiae, that is, as a matter of right. Fifthly, an irregularly obtained judgment will not be set aside in its entirety if, in the exercise by the Court of its discretion, the illegality can be severed leaving the rest of the judgment to stand. This will depend on whether the degree of irregularity in the process by which the judgment was obtained or in the resulting judgment was substantial. The overarching consideration is to avoid a miscarriage of justice.
    • (b) Inherent jurisdictions of the Supreme Court to set aside its judgments or orders
21. Apart from the Supreme Court (Civil Procedure) Rules 1980, the Supreme Court has inherent jurisdiction to set aside its own judgments or orders where the interests of justice so require. In an article entitled Inherent jurisdiction and inherent powers in New Zealand [2005] Canter Law Rev 10; [2005] CanterLawRw 10; (2005) 11 Canterbury Law Review 220 by Rosara Joseph, the learned author said:
    • “Generally, a Court is functus officio once a judgment has been finally recorded: Re Victim X [2003] NZCA 102; [2003] 3 NZLR 220, 233 (CA). However, the High Court retains inherent jurisdiction to set aside its own order if that order can properly be described as a nullity: R v Nakhla (No.2) [1974] NZLR 453, 455 (CA). The judgment can be set aside without the necessity of appeal: Craig v Kansenn [1943] 1 KB 256 approved in Kofi Forfie v Seifah [1958] AC 59, 67 (PC). Procedural impropriety is the linking thread between most ‘nullity’ cases. A judgment may be described as a nullity if it was entered by default in breach of the relevant rules of the Court, or where the originating process was not served upon the defendant: Craig v Kansenn [1943] 1 KB 256; Cameron v Cole [1944] HCA 5; (1944) 68 571, 589. See also Keith Mason, ‘The Inherent Jurisdiction of the Court’ (1983) 57 Australian Law Journal 449, 450. The Court may also set aside its own order where the Court sets out on the wrong inquiry: Butterfield v R [1997] 3 NZLR 760; or where there has been a breach of natural justice, such as where an order has been made against a party who has not had an opportunity to be heard: Utah Construction & Mining Co v Watson [1969] NZLR 1062. In Brogden v Arnold, Heath J said that failure to hear parties is a fundamental failure which impugned the orders as nullities.
    • “The English Courts have also confirmed that they have jurisdiction to rescind or vary an earlier order where the earlier decision was made following procedural unfairness. The House of Lords considered that this jurisdiction should only be exercised where, through no fault of the party, he or she has been subject to unfair procedure. The earlier decision cannot be varied or rescinded just because it is thought to be wrong: R v Bow Street Metrapolitan Stipendiary Magisrates (No2) [1999] UKHL 1; [[1999] UKHL 1; 2000] 1 AC 119, 132, Lord Browne-Wilkinson. In Taylor v Lawrence [2002] UKPC 30; [2000] 2 A11 ER 353 the English Court of Appeal set aside its own order after presumptive bias had been established, a significant injustice had resulted, and there was no effective remedy.
    • “The Court of Appeal’s decision in R v Smith [2003] 3 NZLR 625 (CA) is the leading decision in New Zealand. The Court of Appeal set aside a decision which was held to be a ‘nullity’ because of a fundamental breach of natural justice. Smith was decided in the wake of R v Taito [2003] 3 NZLR 577 (PC) in which the Privy Council identified fundamental errors in the Court of Appeal’s processing of applications for criminal appeals.
    • “The ‘nullity’ cases must be distinguished from a special group of cases involving continuing orders. In these cases, the jurisdiction to revisit and alter or set aside an order is a continuing jurisdiction. Questions of nullity or functus officio do not arise. Under the continuing jurisdiction, the Court may revisit the appropriateness of the continuation of an order if the circumstances change: Chan v Attorney General (unreported HC, Wellington, 21 October 2004, MacKenzie J) [11]. See also Re Wellington Newspapers Ltd’s Application [1982] 1 NZLR 118, 118 (Cooke P)”.
22. In respect of the principle that the New Zealand High Court has jurisdiction to set aside its own orders where there has been a breach of natural justice so as to make the order a nullity, Heath J said in R v Holt [2007] NZHC 1150, para [48]:
    • “[48] [The] High Court has power to set aside its own orders as if they were properly described as nullities: eg Butterfield v R [1997] 3 NZLR 760 at 763-764 and Brogden v Arnold [2003] NZLR 80”.
23. In Ben Nevis Forestry Ventures Ltd v Commissioner of Inland Revenue [2013] NZHC 441 Katz J said at paras [9] – [19]:
    • “[9] It has long been a fundamental principle of both English and New Zealand law that once a Court has delivered a final judgment it has no authority to correct, alter or supplement that judgment, subject to very limited exceptions. Once final judgment has been delivered, the Court’s jurisdiction has been fully exercised and its authority in relation to the subject matter of the judgment has come to an end. This is known as the finality principle. It recognises that it would lead to unacceptable uncertainty for litigants, the public and indeed the law generally if Courts could reconsider and amend final orders at will: Lockyer v Ferryman (1877) 2 App Cas 519 (HL), as confirmed in Shields v Blackeley [1986] NZCA 445; [1986] 2 NZLR 262 (CA). See also R v Nakhla (No 2) 1 NZLR 453 (CA) at 455 – 456 and Redcliffe Forestry Venture Ltd v Commissioner of Inland Revenue [2013] 1 NZLR 356 (HC). There must be a defined end point to litigation. Once a final decision has been delivered, the Court that has delivered it will generally be functus officio.
    • “[10] There are exceptions to the finality principle but they are relatively rare. As Lord Wilberforce observed in The Ampthill Peerage [1977] AC 547 (HL) at 569:
      • “‘ For a policy of closure to be compatible with justice, it must be attended with safeguards: so the law allows appeals: so the law, exceptionally, allows appeals out of time: so the law still more exceptionally allows judgments to be attacked on the ground of fraud: so limitation periods may, exceptionally, be extended. But these are exceptions to a general rule of high public importance, and as all the cases show, they are reserved for rare and limited cases, where the facts justifying them can be strictly proved”.
    • “[11] Lord Simon of Glaisdale made similar observations in the same case at 576:
      • “‘ But the fundamental principle that is in society’s interest that there should be some end to litigation is seen most characteristically in the recognition by our law - by every system of law – of the finality of a judgment. If the judgment has been obtained by fraud or collusion it is considered as a nullity and the law provides machinery whereby its nullity can be so established. If the judgment has been obtained in consequence of some procedural irregularity, it may sometimes be set aside. But such exceptional cases apart, the judgment must be allowed to conclude the matter.
    • “[12] The finality principle (and its limited exceptions) has been recognised and confirmed in numerous New Zealand cases, including the leading Court of Appeal decision of R v Smith [2002] NZCA 335; [2003] 3 NZLR 617 (PC). (Smith followed the Privy Council decision of R v Taito [2003] 3 NZLR 577 (PC) which had identified fundamental errors in the Court of Appeal’s processing of criminal appeals).
    • “[13] Ben Nevis submitted that the present case falls within one of the recognised exceptions to the finality principle. In particular, Ben Navis submitted that where a decision is delivered in circumstances where natural justice has been breached (including as a result of actual or apparent bias), the decision will be a nullity.
    • “[14] In R v Smith [2002] NZCA 335; [2003] 3 NZLR 617, 633, the Court of Appeal affirmed the fundamental entitlement to a tribunal which acts in accord with the rules of natural justice, recognising that a failure to do so would result in an exception to the finality principle:
      • “‘ Failure to hear, consideration by the Court of material not disclosed to the applicants, presumptive bias on the part of participating Judges ... are breaches of the right to justice contained in s.27 (1) of the New Zealand Bill of Rights Act. They are not mere irregularities. They are breaches of an irreducible minimum standard of justice... Such failure requires the determination earlier reached to be set aside ex debito justitiae... The result can be achieved in application of the inherent jurisdiction.

“[15] In R v Smith [2002] NZCA 335; [2003] 3 NZLR 617 (CA) at para [29] Elias CJ cited Lord Greene MR’s judgment in Craig v Kanssen [1943] KB 256 (CA) (subsequently approved by the Privy Council in Kofi Forfie v Seifah [1958] AC 59 (PC) where Lord Greene said this at 262:

• “‘ Those cases appear to me to establish that a person who is affected by an order which can properly be described as a nullity is entitled ex debito justitiae to have it set aside. So far as procedure is concerned, it seems to me that the Court in its inherent jurisdiction can set aside its own order, and that it is not necessary to appeal from it’. (emphasis added)
• “[16] ...

24. “[17] The dictum of Lord Diplock from Isaac v Robertson [1985] 1 AC 97 (PC) at 103 that Thomas J was referring to [in Auckland District Court v Attorney General [1993] 2 NZLR 129 (CA) at 133] is as follows:
    • “‘ There is a category of orders of [a Court of unlimited jurisdiction] which a person affected by the order is entitled to have set aside ex debito justitiae in the exercise of the inherent jurisdiction of the Court without his needing to have recourse to the rules that deal expressly with the proceedings to set aside orders for irregularity and gave to the Judge a discretion as to the order he will make. The Judges in the cases that have drawn the distinction between the two types of orders have cautiously refrained from seeking to lay down comprehensive definition of defects that bring an order into the category that attracts ex debito justitiae the right to have it set aside, save that specifically it includes orders that have been obtained in breach of the rules of natural justice.’
    • “[18] [In] Brogden v Arnold [2003] NZAR 80 (HC) at para [12] the High Court had made orders striking out an appeal to the High Court before hearing from the parties. The High Court (Heath J) vacated these orders and reinstated the appeal on the following basis:
      • “‘ I have reached the view that I do have jurisdiction to take that course of action. The failure to hear parties is a fundamental failure which, in my view, is capable of characterising the orders made by the learned Judge ‘nullities’. In that regard, I rely upon the statement of principle set out in R v Nakhla (No2) [1974] 1 NZLR 453, 455 – 456 (CA) as applied in similar circumstances, by Panckhurst J in Butterfield v R [1997] 3 NZLR 760, 764. In addition, I refer to s.27 of the New Zealand Bill of Rights Act 1990...”’
    • “[19] In Butterfield v R [1997] 3 NZLR 760 (HC) Holland J had dismissed an appeal under a fundamental misunderstanding. Panckhurst J set aside the dismissal on the basis that the resultant decision should be viewed as a nullity. In doing so, he (like Heath J in Brogden) relied on the Court of Appeal’s decision in R v Nakhla (No2) [1974] 1 NZLR 453 (CA)”
25. In McNab v Matthews [2014] NZHC 580, para [26], Heath J said:
    • “[26] An order made by a Court of unlimited jurisdiction (such as the High Court of New Zealand) must be treated as valid until such time as it is set aside by a Court of competent jurisdiction. That basic principle was explained by Lord Diplock in Isaacs v Robertson [1985] AC 97 (PC). Delivering the advice of the Privy Council, His Lordship said at p.102:
      • “‘ Their Lordships would, however, take this opportunity, to point out that in relation to orders of a Court of unlimited jurisdiction it is misleading to seek to draw distinctions between orders that are ‘void’ in the sense that they can be ignored with impunity by those persons to whom they are addressed, and orders that are ‘voidable’ and may be enforced unless and until they are set aside. Dicta that refer to the possibility of there being such a distinction between orders to which the descriptions ‘void’ and ‘voidable’ respectively have been applied can be found in the opinions given by the Judicial Committee of the Privy Council in Marsh v Marsh [1945] AC 271at 284 and MacFoy v United Africa Co Ltd [1961] 3 A11 ER 1169, [1962] AC 152, but in neither of those appeals nor in any other case to which counsel has been able to refer their Lordships has any order of a Court of unlimited jurisdiction been held to fall in a category of Court orders that can simply be ignored because they are void ipso facto without there being any need for proceedings to have them set aside. The cases that are referred to in these dicta do not support the proposition that there is any category of orders of a Court of unlimited jurisdiction of this kind; what they do support is the quite different proposition that there is a category of orders of such a Court which a person affected by the order is entitled to apply to have set aside ex debito justitiae in the exercise of the inherent jurisdiction of the Court without his needing to have recourse to the rules that deal expressly with proceedings to set aside orders for irregularity and give to the Judge a discretion as to the order he will make. The Judges in the cases that have drawn the distinction between the two types of orders have cautiously refrained from seeking to lay down a comprehensive definition of defects that bring an order into the category that attract ex debito justitiae the right to have it set aside, save that specifically it includes orders that have been obtained in breach of rules of natural Justice’. (emphasis added).”

(c) Alleged breaches of the right to a fair trial under Article 9 of the Constitution

26. One of the grounds that was raised to set aside the 1996 judgment was alleged breaches of the right to a fair trial under Article 9 of the Constitution. It was not explained what procedural steps should be taken to set aside the judgment on the basis of the alleged breaches of the constitutional right to a fair trial. Without deciding this issue, it appears from some of the New Zealand authorities already cited in relation to the inherent jurisdiction of the High Court to set aside its own decisions or orders for breach of natural justice that the argument advanced on the basis of the constitutional right to a fair trial can be used to support and strengthen the natural justice argument. In saying this, I am not to be taken to be deciding that a decision or order of this Court cannot be set aside ex debito justitiae for breach of the constitutional right to a fair trial alone.
    
    • (d) Right to adequate compensation under Article 14 of the Constitution for property compulsorily taken
27. The alleged breach of the right to adequate compensation under Article 14 of the Constitution for property compulsorily taken does not apply in this case. That is because this case does not involve any compulsory acquisition of any of the applicants property or properties. What had happened was that the 1996 default judgment had cancelled survey plans and a cadastral which has affected the lands claimed by the second to eighth applicants to be their lands. That cannot be compulsory acquisition of lands Article 14 is referring to.

Motions by the applicants to set aside judgment

28. For convenience, I will now deal with the motions by the applicants to set aside judgment starting with the motion by the second applicant down to the motion by the eighth applicant, and then with the motion by the first applicant.

(a) Motion by the second applicant to set aside judgment

29. According to the affidavit evidence adduced by the second applicant Anthony Pereira of Saleufi, businessman, he and his wife had purchased as joint tenants in 1992 from the Public Trustee two parcels of land situated at Fugalei near Apia, namely, parcels 303 and 307. This is evidenced by deed of conveyance dated 15 December 1992. Each parcel of land is a little over a quarter acre in area. In July 1993, they purchased as joint tenants from the Public Trustee another ten parcels of land situated at Fugalei, namely, parcels 285, 286, 287, 288, 289, 290, 291, 292, 293, and 294. This is evidenced by deed of conveyance dated 12 July 1993. Each parcel of land is a little over a quarter of an acre in area. Then in October 1993, Mr Pereira and his wife purchased another three parcels of land at Fugalei from the Public Trustee, namely, parcels 295, 296, and 299. This is evidenced by deed of conveyance dated 25 October 1993. Two of these parcels of land are each one quarter acre in area with one parcel having an area of a little over a quarter of an acre. All of the said parcels of land appear on survey plan 4444L and form part of that survey plan. Their total area is over three and a half acre. They have also all been registered in the land register under the names of Mr Pereira and his wife.
30. As earlier mentioned, in 1996 the late Leapai Alaivaa as plaintiff and matai of the first respondents family at Vaimoso brought a civil claim against the Attorney General and Director of Lands, Survey and Environment as defendants seeking declaratory orders to invalidate survey plans 4444L and 5561 and cadastral 13. None of the other applicants, including the second applicant, was notified or served by the said Leapai Alaivaa with his civil claim. Because none of the defendants appeared when the 1996 civil claim was called in Court, the matter was adjourned for Leapai Alaivaa to file formal proof of his claim. As a result, default judgment by formal proof was entered on 9 September 1996 in favour of Leapai Alaivaa as plaintiff against the Attorney General and the Director of Lands, Survey and Environment as defendants invalidating survey plans 4444L and 5561 and cadastral 13.
31. By invalidating survey plan 4444L, the effect of the 1996 default judgment on the second applicant and his wife was that all the deeds of the parcels of land at Fugalei that they had purchased from the Public Trustee in 1992 and 1993 were also invalidated. But they were totally unaware of the 1996 proceedings because they were not cited as parties or served with the proceedings. The second defendant says that he became aware for the first time of the 1996 judgment when he was invited by the Attorney General by letter dated 9 April 2015 to join the present proceedings to set aside the 1996 judgment. This is a fundamental breach of natural justice with potentially very costly consequences for the second applicant and his wife. It is also a fundamental breach of the constitutional right to a fair trial under Article 9. The 1996 judgment insofar as it affects the second applicant is a nullity and should be set aside ex debito justitiae in the exercise of the Court’s inherent jurisdiction: see, for example, the New Zealand cases of R v Smith [2002] NZCA 335; [2003] 3 NZLR 617, 633 (CA); Ben Nevis Forestry Ventures Ltd v Commissioner of Inland Revenue [2013] NZHC 441, paras [9] – [19]; R v Holt [2007] NZHC 1150, para [48]; Brogden v Arnold [2003] NZAR 80, para [12], (HC); Butterfield v R [1997] 3 NZLR 760 (HC).
32. There is another parcel of land at Fugalei which the second applicant and his wife purchased from a different vendor in 2001. This is evidenced by deed of conveyance dated 23 February 2001. This is parcel 304 which is also shown on survey plan 4444L and forms part of that survey plan which has been invalidated by the 1996 judgment. The previous owner of parcel 304 was not cited as a defendant by the plaintiff in the 1996 proceedings and presumably was not served with those proceedings. I therefore presume that the previous owner of parcel 304 was not aware of the 1996 proceedings. If, subsequently she became aware of those proceedings and the 1996 default judgment, I would have expected her to apply to be joined in the present proceedings to set aside that judgment. However, she had sold parcel 304 to the second applicant and his wife in 2001 as evidenced by deed of conveyance dated 23 February 2001. So may be that is the reason why the previous owner did not apply to be joined in the present proceedings.
33. The second applicant is saying that he and his wife were also totally unaware of the 1996 default judgment at the time they purchased parcel 304. He and his wife were therefore bona fide purchasers for valuable consideration without notice parcel 304 from its previous owner. In the circumstances, the second applicant seems to have a good defence but it has not been tested in a proper hearing. In my view, the second applicant should be given the opportunity to have his defence tested in a proper hearing in order to avoid a possible miscarriage of justice.
34. The equitable doctrine of bona fide purchaser for valuable consideration without notice was explained by this Court in Carter v Ioane [2010] WSSC 14 and applied in Stowers v Stowers [2010] WSSC 36; Faataualofa v Faataualofa [2012] WSSC 37; Fesolai v Boon [2016] WSSC 206. In Carter v Ioane [2010] WSSC 14, paras 38-40, this Court said:
    • “38. In the often cited English case of Pilcher v Rawlins [1872] UKLawRpCh 13; (1872) LR 7 Ch App 259, James LJ stated at pp 268-269:
      • “I propose simply to apply myself to the case of a purchaser for valuable consideration without notice, obtaining upon the occasion of his purchase, and by means of his purchase deed, some legal estate, some legal right, some legal advantage; and, according to my view of the established law of this Court, such a purchaser’s plea of a purchaser for valuable consideration without notice is an absolute, unqualified, unanswerable defence, and an unanswerable plea to the jurisdiction of this Court. Such a purchaser, when he has once put in that plea, may be interrogated and tested to any extent as to the valuable consideration which he has given in order to show the bona fides or mala fides of his purchase and also the presence or the absence of notice; but when once he has gone through that ordeal, and has satisfied the terms of the plea of purchaser for valuable consideration without notice, then, according to my judgment, this Court has no jurisdiction whatever to do anything more than to let him depart in possession of that legal estate, that legal right, that legal advantage which he has obtained, whatever it may be. In such a case a purchaser is entitled to hold that which, without breach of duty, he has had conveyed to him”.
    • “39. The above passage has already been adopted and applied by this Court in Taiene Paina v Public Trustee [2001] WSSC 9 and Meredith v Manoo [2002] WSSC 51.
    • “40 Also in Pilcher v Rawlins [1872] UKLawRpCh 13; (1872) LR 7 Ch App 259, Mellish LJ stated at p.273:
      • “The general rule seems to be laid down in the clearest terms by all the great authorities in equity, and has been acted on for a great number of years, namely, that this Court will not take an estate from a purchaser who has bought for valuable consideration without notice”.
35. In response to the second applicant, counsel for the first respondent says in his submissions that r.140 upon which the second applicant relies for his motion to set aside judgment does not apply in these proceedings because the second respondent was not a defendant in the 1996 proceedings. As it would appear from what I have already said. I am in agreement with counsel for the first respondent. Counsel for the respondent also says that Article 9 (3) of the Constitution upon which the second applicant also relies in his motion does not apply to these proceedings. I also agree but it is clear from the written submissions of counsel for the second applicant that the second applicant is relying on breach of natural justice and Article 9 of the Constitution which implies that the second applicant was also relying on breach of natural justice and the constitutional right to a fair trial. The reference to “Article 9 (3) of the Constitution” must therefore be a typographical error or oversight.
36. As already pointed out, this Court has inherent jurisdiction to set aside ex debito justitiae any of its decisions or orders that was made in breach of natural justice. Likewise, where there has been breach of the constitutional right to a fair trial. In the exercise of the Court’s inherent jurisdiction, I have already decided in the interests of justice to set aside the 1996 default judgment in respect of all the parcels of land that were purchased by the second applicant and his wife in 1992 and 1993 prior to the 1996 judgment given that those proceedings were not served on the second respondent and his wife and were held in their absence.
37. In respect of the defence of bona fide purchaser for valuable consideration without notice raised by the second applicant, there is no response in the submissions for the first respondent to that defence. In the circumstances, I am satisfied from the evidence given by the second respondent that he and his wife were bona fide purchasers for valuable consideration without notice in respect of parcel 304. I cannot help feeling that if the plaintiff Leapai Alaivaa had done a proper search of the land register in 1996, he would have found that the second applicant and his wife as well as the owner from whom they purchased parcel 304 were already registered owners of some of the various parcels of land shown on survey plan 4444L. He should then have cited them as parties to the 1996 proceedings or serve them with copies of those proceedings.
38. In all the circumstances, the 1996 default judgment is set aside in the exercise of the Court’s inherent jurisdiction in respect of the parcels of land purchased by the second applicant and his wife in 1992 and 1993. The second applicant should be also be given the opportunity to have its defence of bona fide purchaser for valuable consideration without notice tested in a proper hearing in order to avoid any possible miscarriage of justice.
    • (b) Motion by the third applicant in support of setting aside judgment
39. The motion by the third applicant, an incorporated company, to set aside judgment does not refer to survey plans 4444L and 5561 and cadastral 13 which were invalidated by the 1996 default judgment. It refers to lot 428 on plan 5908 and lot 511 on plan 6192 which are situated at Fugalei. The supporting affidavit by a director of the third applicant shows that those parcels of land were purchased by the third applicant from one Theresa Langkilde McCarthy in January 2001. The reason for the third applicant’s motion to be joined and heard in these proceedings is to protect its interests in the said parcels of land. It therefore says that it supports the applications to set aside judgment by the first and second applicants.
    • (c) Motion by the fourth applicant in support of setting aside judgment
40. The fourth applicants are husband and wife. Their motion is for them to be granted leave to be joined in the present proceeding in support of the first applicant’s motion to set aside judgment. Their motion does not refer to survey plans 4444L and 5561 and cadastral 13 which were invalidated by the 1996 default judgment. It refers to lot 434 on plan 5920 situated at Fugalei which they had purchased from the ANZ Bank (Samoa) Ltd in 2004 in a mortgagee sale as evidenced by deed of conveyance dated 19 July 2004.
41. The concern of the fourth applicants is that their access to their land since 2004 has been blocked by people who came with machetes. As a result, the plan by the fourth applicants to build a warehouse on their land has not been fulfilled for many years. So the reason for the fourth applicants motion to be joined in these proceedings is to ensure that their interests in their land are protected even though their land is not on any of the plans that were invalidated by the 1996 default judgment.
42. The fourth applicants also say that when they purchased their land in 2004 they had no knowledge of any problems that affected or may affect it. They only learnt of these proceedings and their likely impact on their land in November 2015.

(d) Motion by the fifth applicant in support of setting aside judgment

43. The motion by the fifth applicant, an incorporated company, to set aside judgment also does not refer to survey plans 4444L and 5561 and cadastral 13. It refers to lot 509 on plan 6192 situated at Fugalei. The fifth applicant purchased this land in 2000 from one Theresa Langkilde McCarthy as evidenced by deed of conveyance dated 26 January 2000.
44. Since the fifth applicant purchased the said land in 2000, it has been operating a chip factory on it. The concern of the fifth applicant is that issues have arisen from time to time relating to the blocking of the road to their land and construction work on site. It therefore wants to be heard in those proceedings to protect its interests in its land and it supports the motion by the first applicant to set aside the 1996 default judgment.

(e) Motion by the sixth applicant to set aside judgment

45. The motion by the sixth applicant, an incorporated company, also seeks to set aside the 1996 default judgment which invalidated survey plans 4444L and 5561 and cadastral 13. According to the affidavit of a director of the sixth applicant filed in support of the sixth applicant’s motion, the sixth applicant purchased lot 314 on survey plan 4444L from one Harry Chan Tung and Asenati Chan Tung as registered owners in February 2009 without any knowledge of the 1996 judgment. It is not clear whether the Chan Tungs were aware of the 1996 judgment when they sold lot 314 to the sixth applicant in 2009. It is more likely that they, too, were not aware of the 1996 judgment because they were not cited as parties to the proceedings which led to the 1996 judgment.
46. Presumably if the Chang Tungs had remained registered owners of lot 314 up to now they would also have applied to be joined as parties in the present proceedings to set aside the 1996 judgment. But they had sold their land to the sixth applicant in 2009. And the sixth applicant says that it is a purchaser for valuable consideration without notice. It only became aware of the 1996 judgment when it was informed in December 2015 of the present proceedings to set aside judgment. There is nothing in the submissions for the first respondent to contradict this defence of a purchaser for valuable consideration without notice raised by the sixth applicant. The sixth applicant would therefore appear to have a good and unanswerable defence. But they have not had the opportunity to test their defence at a proper hearing. On the evidence, I also see no irreparable harm being done to the first respondents if the 1996 judgment is set aside and the sixth applicant is given the opportunity to be heard on its defence of bona fide purchaser for valuable consideration without notice. In these circumstances, I am of the view that the sixth applicant should be given the opportunity to be heard on its defence in order to avoid a possible miscarriage of justice.

(f) Motion by the seventh applicant to set aside judgment

47. The seventh applicant which is the Board of Trustees of the Congregational Christian Church in Samoa purchased lots 312 and 313 on survey plan 4444L from the Public Trustee on 23 March 1993. It became the registered owner of those lands. By default judgment dated 9 September 1996, survey plans 4444L and 5561 and cadastral 13 were invalidated. The seventh applicant was not cited as a party to the 1996 proceedings or served with a copy of those proceedings. As a result, the seventh applicant was not aware of those proceedings and therefore did not take any part in it. According to the supplementary affidavit of 7 Ocotber 2016 by Rev Vavatau Taufao, the seventh applicant was first made aware of the 1996 judgment on 22 January 2016. But by invalidating survey plan 4444L, the 1996 judgment has affected lots 312 and 313 on that survey plan. The seventh applicant has therefore filed a motion to set aside the 1996 judgment on the grounds of breach of natural justice, breach of the right to a fair trial under Article 9 of the Constitution, and breach of the right to adequate compensation for property compulsorily taken under Article 14. The seventh applicant’s motion also relies on the inherent jurisdiction of this Court to set aside judgment. I have already decided that Article 14 does not apply in this case because the 1996 judgment did not involve a compulsory acquisition of property. I would therefore say no more about the ground of the motion based on Article 14.
48. In terms of r.140, I agree with the submissions of counsel for the first respondents that r.140 does not apply to the seventh applicant’s motion because the seventh applicant was not a defendant in the proceedings that resulted in the 1996 judgment. But the seventh applicant is also relying on this Court’s inherent jurisdiction to set aside its own decisions or orders as well as alleged breaches of natural justice and Article 9.
49. It is clear from the authorities that a Court of unlimited jurisdiction such as the Supreme Court of Samoa has an inherent jurisdiction to set aside a decision or order of its own which is a nullity because it was obtained in breach of natural justice. The 1996 judgment was clearly obtained in breach of natural justice insofar as it affects the seventh applicant’s lands. The seventh applicant was also denied the constitutional right to a fair trial under Article 9. The seventh applicant is therefore entitled to have the 1996 judgment set aside ex debito justitiae in the exercise of this Court’s inherent jurisdiction. On the evidence, I do not see any irreparable harm being done to the first respondents if the 1996 judgment is set aside in respect of the seventh applicant.

(g) Motion by the eighth applicant to set aside judgment

50. The motion by the eighth applicant to set aside the 1996 default judgment relies on an alleged breach of natural justice and the Court’s inherent jurisdiction to set aside a decision or order of its own. It appears from the affidavit evidence of the eighth applicant that in 1993 he entered into a sale and purchase agreement with one Theresa Langkilde McCarthy as registered owner to purchase lot 311 on survey plan 4444L. In December 1994, the eighth applicant started reclaiming the land and built a Samoan house on it. In October 1995, the father of the eighth applicant passed away and was buried on the land. In 1996, Leapai Alaivaa as plaintiff brought civil proceedings against the Attorney General and the Director of Lands, Survey and Environment as defendants which resulted in the default judgment that invalidated survey plans 4444L and 5561 and cadastral 13. In other words, when the 1996 default judgment invalidated survey plans 4444L and 5561 and cadastral 13, the eighth applicant had already entered into a sale of purchase agreement to purchase lot 311 on survey plan 4444L and he had made improvements to the land. On or about 22 May 2000, the eighth applicant finally paid off the land.
51. The eighth applicant was not cited as a party to the 1996 proceedings and was not aware of those proceedings and the resulting default judgment. He says that he was not aware of the 1996 judgment until this matter was brought to his attention by the Office of the Attorney General by letter dated 18 October 2015.
52. The eighth applicant cannot rely on r.140 because he was not a defendant or party to the 1996 proceedings. He is relying on the Court’s inherent jurisdiction to set aside a decision or order of its own. After careful consideration, I am of the view that in the circumstances the eighth applicant is entitled to have the 1996 default judgment set aside ex debito justitiae for breach of natural justice relying on the Court’s inherent jurisdiction. I do not see any irreparable harm being done to the first respondents if that is done.

(h) Motion by the first applicant to set aside judgment

53. The motion by the first applicant, the Attorney General cited on behalf of the Ministry of Natural Resources and Environment, relies on r.140 of the Supreme Court (Civil Procedure) Rules 1980. In terms of the distinction between a “regularly obtained judgment” and an “irregularly obtained judgment” for the purpose of a motion to set aside judgment brought pursuant to r.140, the 1996 default judgment would be a regularly obtained judgment. That is because the first applicant and the Director of Lands, Survey and Environment as defendants in the 1996 proceedings must have been served with those proceedings but failed to appear. The Court would not have required the plaintiff in the 1996 proceedings to proceed to formal proof in the absence of the defendants unless there was proof that the defendants had been served with the proceedings. I do not accept that the defendants were not served. The submission by counsel for the first applicant to the effect that the first applicant was not given the opportunity to be heard in the 1996 proceedings is therefore misconceived. Service of the 1996 proceedings provided the first applicant with the opportunity to be heard on those proceedings. But the first applicant did not take advantage of that opportunity by failing to appear.
54. This is further supported by the first applicant relying on the decision of the Court of Appeal in Lauano v Samoa National Provident Fund Board [2009] WSCA 3 which sets out the approach to be applied to a motion to set aside a regularly obtained judgment as opposed to an irregularly obtained judgment. As stated by the Court of Appeal in Lauano v Samoa National Provident Board in relation to rules 140 and 141:
    • “As Nelson J noted, those rules are silent as to the applicable principles. However, the rules are similar to equivalent New Zealand High Court Rules 143 and 469. Nelson J was correct to identify that the discretion to grant a rehearing is unfettered. But as he also noted, to succeed the applicant must establish:

“1. A substantial ground of defence.

“2. A reasonable justification for the delay.

“3. The plaintiff will not suffer irreparable harm if the judgment is set aside."

55. Furthermore, in Lauano v Samoa National Provident Fund Board [2008] WSSC 70, Nelson J after referring to the factors to be taken into account in determining whether to grant a motion to set aside judgment said:
    • “To this in New Zealand by the terms of their Rules must be added the further requirement that the judgment can only be set aside ‘if it appears to the Court that there has been or may have been a miscarriage of justice’. This is in line with the overriding requirement in applications of this nature that the final test should be whether it is just in all the circumstances to grant the application. As noted by the Court in Russell v Cox...’the several factors mentioned in the judgments discussed should be taken not as rules of law but as no more than tests by which the justice of the case is to be measured’... There is no reason why these principles should not be applied to applications to set aside under rules 140 and 141”.
56. Similar statements are to be found in two of the New Zealand cases already cited in this judgment which refer to Russell v Cox [1983] NZLR 654 for the factors to be considered when deciding an application to set aside a regularly obtained judgment. In Mehta and Mehta v Grimshaw & Co [2008] NZHC 294, Duffy J, after referring to the factors set out in Russell v Cox, said at para [18]:
    • [18] In Russell v Cox the Court of Appeal was careful to point out that those factors were not rules of law and were no more than tests by which the justice of the case was to be measured in the context of procedural rules whose overall purpose is to secure the just disposal of litigation (at 659)”.
57. Likewise, in Fetherston v BNZ [2008] NZHC 405, Lang J, after referring to the Russell v Cox factors, said at para [43]:
    • “[43] Overarching all of these factors is the question of whether the interests of justice require the judgment to be set aside...”

(i) Background

58. The background to the first applicant’s motion to set aside judgment is set out in the submissions for the first applicant which shows that the core of this dispute is whether the boundary between parcel 52 and parcel 53 as shown on plan flur 4A has been accurately recorded in modern survey plans. Plan flur 4A was drawn in or around 1904 during the time of the German administration in Samoa. It shows an area of land in the Fugalei–Vaimoso area which contains parcels 52 and 53. Parcel 52 is customary land belonging to the matai tile Leapai of Vaimoso and parcel 53 is freehold land that was granted to one Thomas Trood by Court Grant 909. These parcels adjoin one another and divided by a single line shown on plan flur 4A. It is whether the boundary line between parcels 52 and 53 is accurately shown on modern survey plans that is at the heart of the present dispute.
59. Since 1904, parcel 53 has been subdivided and sold to other people and entities. Most of these subdivisions are recorded on survey plan 4444L created by a local private surveyor and approved in 1981. Plan 5561 which is a survey definition plan was created by the same surveyor and approved in 1993. Cadastral 13 is a base map established by the then Department of Lands and Surveys in 1983.
60. In or about July 1996, the late Leapai Alaivaa brought proceedings against the Attorney General and the then Director of Lands, Survey and Environment as defendant seeking to invalidate plans 4444L and 5561 and cadastral 13 claiming that they are not an accurate description of the boundary as shown on the plan of parcel 52 and plan flur 4A. The then Attorney General and the then Director of Lands, Survey and Environment for some unknown reason did not respond to those proceedings and default judgment by formal proof was entered in favour of the late Leapai Alaivaa. By that judgment, the Court declared survey plans 4444L and 5561 and cadastral 13 invalid as they are incorrect and ordered that such plans be corrected in accordance with the plan of parcel 52 dated 28 July 1936 and plan flur 4A.
61. It appears from the affidavit evidence for the first applicant and the submissions of counsel that the 1996 default judgment created serious problems for the first applicant and what is now the Ministry of Natural Resources and Environment which is the successor to the former Department of Lands, Survey and Environment and the former Department of Lands and Survey. The most serious of these problems is that the invalidation of plans 4444L and 5561 and cadastral 13 has affected landowners of freehold land on parcel 53 who were not cited as parties to the 1996 proceedings and therefore were not aware of those proceedings.
62. Numerous efforts have been made by the Office of the Attorney General and the Ministry over the years since the 1996 judgment to try and resolve the problem. For some unexplained reason it does not appear to have occurred to them during those efforts to bring proceedings to set aside the 1999 judgment until 9 February 2015. Anyhow, in 1999 the Ministry commissioned a report from a surveyor within the Ministry. In May 2001, the registrar of lands who is the chief executive officer of the Ministry lodged a registrar’s caveat to prohibit the registration of any instrument affecting the parcels of freehold land affected by the 1996 judgment. In November 2001, the Ministry hired a surveyor from New Zealand to investigate the disputed land and to determine the correct location of the boundary between parcels 52 and 53. On the basis of the report by this surveyor, the first applicant filed a motion on 7 March 2002 for declaratory orders to have the boundary between parcels 52 and 53 as shown on the invalidated plans declared as the correct boundary. A strike out motion filed by the late Leapai Alaivaa in 2002 was dismissed by Vaai J who ordered Leapai Alaivaa to file affidavits in reply to the motion for declaratory orders. Nothing has happened since that time. Unsuccessful attempts by the Office of the Attorney General to meet with Leapai Alaivaa and his lawyer and negotiate a solution to this matter then followed. In 2005, Leapai Alaivaa hired a local private surveyor to investigate this matter. The report by that surveyor did not agree with the report by the surveyor hired by the Ministry from New Zealand. So the Office of the Attorney and the Ministry continued in their efforts to try and resolve this matter.
63. In 2013, Leapai Alaivaa again hired the same local private surveyor to survey the disputed lands and create a plan in accordance with the 1996 judgment. The opinion of Leapai Alaivaa’s surveyor differed from that of the Ministry. Then in 2013, the Ministry hired Galuvao Viliamu Sepulona, another local private surveyor, to investigate this matter. His report though somewhat favourable to the Ministry’s position is not the same with the opinion of any of previous surveyors who has had to deal with this matter.
64. In late 2013 or early 2014, the assistant chief executive officer of the Ministry, Safuta Toelau Iulio, who is also a licensed surveyor, looked into this longstanding matter. In his affidavit evidence, he says that there are differences between the survey reports provided by the various previous surveyors which does not solve the disputed boundary in question. None of those surveyors could agree on the precise position of the disputed boundary according to plan flur 4A mentioned in the 1996 judgment. In Mr Iulio’s opinion, the reason for this is because plan flur 4A which was created in 1904 during the time of the German administration in Samoa shows only landmarks. The position of those landmarks was then recorded separately in the German field notes. But those landmarks are now difficult to find on the actual map because the field notes and landmarks have been lost or destroyed in developments that have taken place. As a result, the surveyors who have had to go into the field and search for the landmarks seen on plan flur 4A were not able to find sufficient landmarks because the landmarks have been lost or destroyed over time.
65. Furthermore, Mr Iulio expressed the opinion, that if the boundaries in the Fugalei–Vaimoso area are to be made consistent with the new boundaries established by the 1996 default judgment, it would have a major impact on that area as all existent subdivisions on parcel 53 would have to be shifted. Mr Iulio therefore recommended that survey plans 4444L and 5561 be validated as there is no one to be advantaged or disadvantaged if those plans are validated.

Application of the factors to be applied to a motion to set aside a regularly obtained judgment to this case

66. In terms of the factors to be applied to set aside a regularly obtained judgment, the first question is whether the applicant has established a substantial defence. It is difficult to see that the first applicant has articulated a substantial defence of its own. However, the first applicant has shown serious problems resulting from the 1996 default judgment with regard to the implementation of that judgment. The most serious problem is that the 1996 judgment will affect landowners of freehold land on parcel 53. But those landowners were not cited as parties to the 1996 proceedings and therefore did not take part in those proceedings. The second problem is that the surveyors who had been engaged to look into the problem since 1996 judgment could not agree on the correct boundary between parcel 52 which is customary land and parcel 53 which is freehold land. This is because most of the landmarks seen on plan flur 4A mentioned in the 1996 judgment cannot now be found because they have been lost or destroyed over time. As a result, it now appears that there is some uncertainty as to the location of the correct boundary between parcels 52 and 53.
67. As to the second factor, namely, whether there is a reasonable justification for the delay in bringing the motion to set aside judgment, I am of the respectful view that the true reason for this delay is because a motion to set aside judgment did not occur to the minds of the lawyers who had been handling this matter until recently. This does not mean that those lawyers were inactive. They made every other effort that was possible to address the 1996 default judgment and resolve the problems that had arisen from the judgment. So even though counsel for the first respondents submitted that no reasonable justification for the delay has been shown, the lawyers for the applicant and the Ministry have made many efforts over the years to resolve this matter. They were not inactive.
68. I refer in this connection to the case of Paterson v Wellington Free Kindergarten Association Incorporated [1966] NZLR 975:
    • “[R.236] empowers the Court or a Judge to set aside any judgment, including one regularly obtained on ‘such terms as may seem just’. In approaching an application to set aside a judgment which complies with the rule, the Court is not limited in the considerations to which it may have regard, but three have long been considered of dominant importance. This was accepted by the Chief Justice in the Court below and by all counsel in this Court. They are, 1. That the defendant has a substantial ground of defence; 2. That the delay is reasonably explained; 3. That the plaintiff will not suffer a irreparable injury if the judgment is set aside: Atwood v Chichester [1878] UKLawRpKQB 4; (1878) 3 QBD 722; Hovell v Ngakapa (1895) 13 NZLR 298; Trengrove v Inangahua Hospital Board [1956] NZLR 587. But, whilst it appears from these cases that delay, if reasonably explained and if it does not create irreparable injury, is not of itself good reason for refusing to set aside, we do not doubt that where the delay is substantial, as it is here, the Court can more readily conclude that injury will be caused”.
69. In Paterson v Wellington Free Kindergarten Association Incorporated [1996] NZLR 957, the Court was concerned with a default judgment on a claim in respect of a building construction contract. Even though there was an extraordinary delay of 15 years in bringing the application to set aside judgment the Court in the given circumstances nevertheless granted the application.
70. As to the third factor, namely, that the plaintiff will not suffer irreparable harm if the judgment is set aside, it appears from the evidence that the plaintiff Leapai Alaivaa and his family have not made any improvements or developments to the disputed land. On that basis, the first respondents as representatives of the Leapai family will not suffer any harm if the judgment is set aside. Counsel for the first respondents, however, submitted that the first respondents will suffer harm if the judgment is set aside because they will lose the area of land they have gained under the judgment. The answer to this submission is that the area of land the first respondents and their family would have gained under the judgment if it is allowed to stand is freehold land belonging to the landowners who have brought motions to set aside because they were not cited as parties to the 1996 proceedings or served with copies of those proceedings. In other words, the first respondents and their family should not be entitled to the land area they have gained under the 1996 judgment without complying with the requirements of natural justice that prior notice of their 1996 proceedings should have been served on the landowners whose lands have been affected by the 1996 judgment. It would be creating a dangerous precedent if one person can take the land of another person through Court proceedings without first giving prior notice of those proceedings to that other person.
71. It is also to be borne in mind that I have already decided to set aside the 1996 judgment ex debito justitiae in the exercise of this Court’s inherent jurisdiction in respect of the motions to set aside by the second applicant, the seventh applicant and the eighth applicant. I have also decided to set aside the 1996 judgment on the basis of the defence of bona fide purchaser for valuable consideration without notice in respect of the second defendant for parcel 304 and the sixth applicant. When this matter proceeds to a rehearing, I would also expect those applicants to call some of the evidence that has been adduced by the first applicant in the present proceedings.
72. In the circumstances, I am of the view that the overarching interests of justice require that the first applicant’s motion to set aside should also be upheld.

Conclusions

73. The default judgment of 9 September 1996 is set aside.
74. This matter is adjourned to Monday, 31 July 2017 at 2:00pm for the first respondents to file and serve a fresh statement of claim should they wish to continue with these proceedings.
75. Costs reserved.

CHIEF JUSTICE