Hicks v Eletise [2017] WSSC 110 (4 August 2017)

SUPREME COURT OF SAMOA
Hicks v Eletise [2017] WSSC 110

Case name:	Hicks v Eletise
Citation:	[2017] WSSC 110
Decision date:	04 August 2017
Parties:	SAIFALEUPOLU HICKS of 202 Pilkington Road, Panmure Auckland, New Zealand, retiree (Plaintiff) AND KALALA AMOA ELETISE of Vaivase-uta, AMOA ELETISE of Vaivase-uta, planter. (First Defendants) AND ETEVISE ELETISE of Vaivase-uta, self employed (Second Defendant)
Hearing date(s):	-
File number(s):	CP 459/93
Jurisdiction:	Civil
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	- All in all, the applicant defendants have failed to meet, as they must for the onus in such matters is on them, the criteria for setting aside the 2004 judgment. From a discretion point of the view their conduct tardiness and apparent disregard for the legal process does not lend itself to an exercise in their favour either. - The application to set aside is refused, the formal proof judgment of 08 December 2004 of Vaai, J is to be given effect forthwith. - Costs follow the event, the plaintiff is entitled to costs. If the parties cannot agree, this can be referred back to the court.
Representation:	C Vaai for plaintiff T Leavai for defendants
Catchwords:	Application to set aside judgment – freehold land – possession – statement of claim – statement of defence – counterclaim – amended statement of defence – agents – contempt – application for joinder – mediation – order joining parties – adjudicate – setting aside judgment or order given in absence of defendant – rehearing – substantial ground – reasonable justification for delay – irreparable harm – delay – onus of establishing a substantial ground of defence – formal proof judgment .
Words and phrases:
Legislation cited:	Supreme Court Civil Procedure Rules 1980
Cases cited:	Lauano v Samoa National Provident Fund Board [2009] WSCA 3: Goodall v Vui [2013] WSSC 136 Sandall v Cardna (unreported) 18th May 1987 Three Rivers [2001] UKHL 16; [2001] 2 All ER 513 Belmount Finance Corp Ltd v William Furniture Ltd [1979] 1 All ER 118 at 268
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

SAIFALEUPOLU HICKS of 202 Pilkington Road, Panmure Auckland, New Zealand, retiree
Plaintiff

AND:

KALALA AMOA ELETISE of Vaivase-uta, AMOA ELETISE of Vaivase-uta, planter.
First Defendants

AND:

ETEVISE ELETISE of Vaivase-uta, self employed
Second Defendant

Counsel:
C Vaai for plaintiff
T Leavai for defendants

Decision: 04 August 2017

DECISION OF NELSON J
(Application to set aside judgment)

Background

1. These proceedings have an extraordinarily protracted history. By Statement of Claim dated 14 December 1993, the plaintiffs husband Falaniko Hicks as registered owner of a ¼ acre parcel of freehold land at Vaivase-uta (”the land”) sought possession of his land from the occupant first defendants. Kalala Amoa Eletise was the wife of the plaintiffs wifes half-brother Amoa Eletise who had passed away. The second defendant is their daughter. Alternatively the plaintiff sought that the first defendants enter into a leasehold arrangement for the land.
2. The matter was called twice before Chief Justice Sapolu in February 1994 and once in March 1994 for the filing of a Statement of Defence. On 18 March 1994 it was set down for formal proof and on 18^th April 1994 was taken off the list. No reason for this is recorded on the court file.
3. The proceedings were reactivated in 2002 and twice in October and once in November was adjourned to again allow the first defendants to file a Statement of Defence. This was finally done on 18 November 2002 and the matter was set down for hearing in the week commencing 13 January 2003. On 09 January 2003 plaintiffs counsel failed to appear at Callovers and the matter was once again taken off the list.
4. It must have been resurrected as on “10 March” either in 2003 or 2004 (not clear from the file) it was set down by the Chief Justice for hearing on “31 March”. It did not proceed for reasons also unclear from the file but on 19 July 2004, it was rescheduled by Vaai, J for hearing as a ‘special fixture’ on 08 December 2004. On that day defence counsel Mr Roma sought leave to withdraw due to lack of contact with the first defendants since January 2003 and a lack of full instructions. This was granted by Vaai, J and judgment by way of formal proof based on the affidavit of the then plaintiff Falaniko Hicks was entered against the first defendants. The judgment gave the first defendants their family and agents seven (7) days to vacate the land and awarded the plaintiff his costs of travel from New Zealand to Samoa to attend the trial.
5. On 24 December 2004 defendants new counsel Ms R Papalii of Toa Law and Associate moved to set aside the 08 December 2004 judgment and for the second defendant to be joined as a third party on the basis that Amoa Eletise had passed away and Kalala Eletise was chronically ill and bed-ridden. They also asserted Roma had not advised them of the hearing date or of his application to withdraw. This Motion was adjourned to 31 January 2005 for mention.
6. On 24 January 2005 the plaintiff moved for orders of contempt as the defendants had not complied with the 2004 judgment. This Motion seems to have been deferred pending the outcome of the application by Ms Papalii. The plaintiff also opposed the application to rehear and for third party joinder. The matter was set down for hearing before Vaai, J on 11 April 2005.
7. On 08 April 2005 Ms Papalii amended her Motion and included a supporting affidavit from the second defendant confirming inter alia her mothers medical condition. She also filed a First Amended Statement of Defence and Counter-claim.
8. There is no record of what transpired on 11 April 2005 but on 02 May 2005, a Statement of Defence to the Counterclaim was filed and the matter was adjourned to 24 October 2005 for hearing. At the plaintiffs request, the hearing was rescheduled to 03 November 2005 as a ‘special fixture’ to allow the plaintiff who lives in New Zealand to attend.
9. On 02 November 2005 the defendants filed a Second Amended Statement of Defence and Counterclaim. The proceedings were nevertheless heard by Vaai, J on 03 November 2005 and adjourned to 16 December 2005 for completion. Replacement defence counsel Mr R S Toailoa was ordered to confirm pre-trial the position regarding his witnesses.
10. On 16 December 2005 plaintiffs counsel did not appear and the matter was adjourned to 16 January 2006 for mention. On that day it was adjourned to the week commencing 30 October 2006 for completion. At Callovers in October and November 2006 it was further adjourned to 01 October 2007 as Mr Toailoa was overseas. Toailoa never returned to Samoa and remains missing in action.
11. Thereafter the file became motionless apart from an affidavit dated 27 October 2010 by the present plaintiff to replace the original plaintiff who passed away in 2008 and correspondence from plaintiffs counsel enquiring as to the status of the proceedings. There was a brief flutter of life in 2014 but pursuant to an application by plaintiffs counsel, Vaai, J adjourned it sine die on 24 November 2014.
12. The file only came back to life when a formal Motion to substitute plaintiffs was filed on 30 April 2015. This was duly served on the defendants new solicitors Leavai Law. By order dated 20 July 2015 the Chief Justice granted the application and referred the matter to mediation. The Mediation Unit Report indicates there were difficulties coordinating a mediation hearing culminating in the parties requesting a new court date.
13. On 26 October 2015 the matter was adjourned for hearing the week commencing 21 March 2016. On that day the plaintiff was not ready to proceed and the proceedings were placed by the Chief Justice on the Standby List.
14. Nothing further developed until 2017 when the matter came into my hands. As Vaai, J has now retired from the Bench, I ordered a rehearing of the application for joinder and to set aside the 2004 judgment. That seemed the logical place to start and counsels concurred with this course of action.

Application for joinder of second defendant

15. The original application by the first defendants was in two parts: an application to set aside the 2004 judgment and an application to join the second defendant daughter in place of her parents who have now both passed on. It is convenient to deal firstly with the application for joinder.
16. Although this application was opposed by the plaintiff, events have now overtaken the proceedings and the factual situation has markedly altered. Both first defendants have died and the land is now occupied by the second defendant her family and agents.
17. If there has been no formal order joining the second defendant, I do hereby make one pursuant to rule 32 of the Supreme Court Civil Procedure Rules 1980 which provides;

“32. Order joining parties – The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as appear to the Court to be just, order that the name of any party improperly joined, whether a plaintiff or a defendant be struck out, and that the name of any person who ought to have been joined or whose presence before the Court may be necessary to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the action, be added, whether as plaintiff or defendant; provided however that no person shall be added as a plaintiff without his own consent.”

18. It is for these reasons plaintiffs current counsel wisely consented at the hearing of this matter to the application to join the second defendant as a party.

Application to set aside

19. Applications to set aside and rehear a matter are governed by rules 140 and 141 of the Supreme Court Civil Procedure Rules 1980 which relevantly provide:

“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 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 any other case shall be made on notice.”

“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, 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.

(3) The application shall not operate as a stay of proceedings unless the court so orders.

(5) An application for a rehearing may be heard by the Judge who heard the proceedings or, if that Judge is not available, by any other Judge.

(8) The court upon rehearing may either affirm, reverse or vary the judgment.”

20. As for the principles applicable to the exercise of the courts discretion, see the Court of Appeal decision in Lauano v Samoa National Provident Fund Board [2009] WSCA 3:

“To succeed the applicant must establish:

A substantial ground of defence.

A reasonable justification for the delay.

The plaintiff will not suffer irreparable harm if the judgment is set aside.”

21. As can be seen, r.140(1) requires that the applicant establish as a factual prerequisite to the application their absence from the relevant hearing wherein the order or judgment was made. On this point there is some dispute.
    
22. The evidence of the second defendant applicant is both her and her mother were unaware of the 08 December 2004 hearing. Because of this they did not attend. She remembers her mother had two lawyers: Roma and then Toailoa who prepared her affidavit dated 24 December 2004 filed in support of the Motion to Set Aside.
23. It is clear from the witnesses answers in cross examination she knew Roma was her mothers lawyer. But she was not involved in the court proceedings until a late stage, viz when the Police turned up with the courts order. Reference the following passage from page 5 of her evidence:

“I le 2004 sa ou iai i le maketi, ae vili mai le matou aiga ia te a’u ou te alu atu o la ua taunuu le tusi. O le tusi lea na tauaao atu e alii mamalu o le malo. Sa ou alu atu loa ma faitau le poloaiga lea ua avatu ai. Sa ou tulai loa, sa ou fia maua se laveai, ua ou fia maua se fesoasoani. Ua na o a’u o se tina ma la’u fanau ou te leiloa poo fea le mea a ou sulufai iai. Na ou sau ou te saili, ou te le malamalama foi poo fea o le a ou alu ou te sulufai iai. Na ou oo lava i tai i le ofisa o le Loia Sili a le malo, na ou faafesili, aua ou te le malamalama. Na fai mai lea o le tala e na o loia taitoatasi e tulai mo oe. Na ou sau ou te savali, na ou tilotilo i le sign a Toailoa na ou afe. O iina na ou afe ma ou alu atu loa faatoai la’u mataupu ma ou fesili ou te moomia se fesoasoani. Pei o i lea na aumai ai se tali e toomaga iai lo’u sulufaiga i lea aso, o iina na tali mai ia au e oo mai le taimi nei lea ua suia ia Tima.”

24. When asked whether she tried to contact Roma, she agreed she had contacted Roma but was told he could no longer act for them. From page 6 of her evidence:

“Ia e faamalie atu matou te lei iloa se valaauga o le faamasinoga i lea taimi. E lei logoa foi matou, ae sa ou oo mai lava, ae fai mai Roma sa tatau ona tou faalogologo i le TV ma le leitiō. Ae faamalulu atu, i leai se matou leitio, leai se matou TV i lea taimi matou te iloa ai se logoga o matou. Ae sa tatau ona oo atu se leoleo e oo atu e ta’u atu ia matou le aso lea ua faamoemoe mo le matou faamasinoga. O le mafuaaga lea na alai ona le auai seisi o matou i le faamasinoga.” (emphasis mine)

The inference being that she only contacted Roma after he withdrew on 08 December 2004.

25. I find it difficult to accept this evidence. Every family in this country has at least a radio if not a radio and a TV. If the defendants themselves lacked a radio surely other family members had access to such mediums.
26. In answers to questions from the court, the witness conceded on page 7 of her evidence it was her mother who dealt with Roma, not her personally. This is consistent with her above evidence.
27. Her evidence however dovetails with Mr Romas letter to the court dated 07 December 2004 attaching his application to withdraw wherein he states:

“I advise that the last contact I had with the defendant was in early January 2003 when the matter as I understand was previously set for hearing but for some reason not called at Callovers then. As we have done previously, we had put out a notice on SBC Radio One last night for the defendant to come to our office this morning as she cannot be contacted by phone. She has yet to come to our office and given the circumstances, I respectfully give notice that I will be making an application to withdraw as Counsel when the matter is called tomorrow. Please find enclosed herein our formal application. We will attend to serving Counsel for the Plaintiff and by copy of this letter, Mr Enari is advised accordingly.”

28. The only other witness called by the applicant was her ex-sister-in-law Tiresa Fomai. Her evidence does not greatly assist the applicant as it relates to court appearances in 2005. She did however confirm Kalala did not attend any callings in either 2004 or 2005. Unlike the plaintiff Falaniko who attended every one in 2004 and 2005.
29. The Respondents only witness was Taofigatele Talasoo who like Falaniko was married into the plaintiffs family. He said he attended the December 2004 court case with his wife in support of Falaniko. The case concerned land at Vaivase-uta owned by Falaniko Hicks but occupied by Kalala Amoa Eletise. He was adamant Kalala and Etevise both attended together with their lawyer. See his affidavit Exhibit “R-1” for the respondents. This however conflicts with the court file record of 08 December 2004 when Roma appeared and withdrew. As well it conflicts with the evidence that Kalala Amoa was by this time ill and bedridden. It is likely this witness was referring to the aborted hearing before Vaai, J on 19 July 2004 and is mistaken about the dates. He is also by his own admission a supporter of the plaintiff.
30. I am accordingly satisfied the Applicant had no actual knowledge of the 08 December 2004 calling. Further that in the absence of contact their lawyer Mr Roma withdrew from acting. Leading to a default judgment by formal proof being entered against them. I am further satisfied they only contacted Roma post-judgment and that their replacement counsel Messrs Toailoa and Associate filed a Motion to Set Aside but outside the 14 day time limit prescribed by the proviso to r.141 (1).
31. There has clearly been substantial delay in pursuing their application. The question now is whether the applicants can satisfy the Lauano test and whether they are considering all the circumstances entitled to an exercise of discretion in their favour.

Analysis

32. This is an ancient claim, it dates back to the last century! It was begun in 1993 by the plaintiffs husband and upon his demise was continued by the plaintiff. To say the defendants have been dilatory in defending it is a gross understatement. Three opportunities were granted by the court in 1994 to file a Statement of Defence. The defendants did nothing. It was then adjourned for formal proof and eventually removed from the Court List.
33. Upon reactivation in 2002, three adjournments were again granted for a Statement of Defence. There would have been every justification after the first such adjournment let alone the two subsequent ones to debar the defendants from defending the claim and enter judgment pursuant to r.97(1) of the Rules which relevantly provides:

“97. Judgment in absence of defence – (1) If the defendant in a action does not within the time fixed by rule 96 of these rules file a counterclaim or a statement of defence ......... a Judge may on the application of the plaintiff made upon the date of hearing appointed in the summons or on any adjourned date therefrom enter judgment against the defendant for the amount of the claim, or any part thereof, and costs.”

34. There is no doubt the plaintiff and his then counsel also contributed to the delay and failed to expeditiously prosecute their claim. But the main delays both pre and post-judgment including a lengthy one between 2006 and 2014 can be laid at the doorstep of the defendants.
35. I accept the respondents witness Taofigatele Talaso’o is mistaken and that neither the second defendant nor the bedridden Kalala Amoa Eletise appeared on 08 December 2004. But that does not absolve them of responsibility. Kalala was obviously aware of the eviction proceedings which she had essentially ignored since 1993; she engaged counsel at some point but then chose to do nothing further; there is no evidence she made enquiries of her lawyer or monitored the progress of proceedings; to paraphrase my colleague Malosi, J in the similar case of Goodall v Vui [2013] WSSC 136:

“as the days, weeks and months ticked by, it must have become apparent something was amiss .....”

No action was taken by the defendants until the police arrived to enforce the courts judgment.

36. The defendants throughout this period remained in continuous exclusive possession of the land well knowing there was an ongoing dispute regarding their occupancy. They displayed no interest in resolution or in an outcome and have provided no satisfactory explanation for their failure to address the matter.
37. One of the cornerstones an applicant to set aside must establish is providing a reasonable justification for delay. The applicant has failed to do that. She also fails in relation to the third criteria as clearly, the plaintiff has suffered irreparable harm in the judgment not being enforced. She has for over a decade been deprived of possession and exclusive use of what was previously her husbands land and which now by the laws of succession is hers.
38. As to whether the applicant has demonstrated she has a good defence to the claim, I am not satisfied on the evidence adduced that she has. As noted in the Supreme Court in Lauano:

“The onus of establishing a substantial ground of defence is on the defendant. And the ground of defence must be substantial, not trivial shallow or in the language of plaintiffs counsel “shadowy”. The defendant must show a defence of sufficient substance to justify delaying the plaintiff in obtaining the fruits of the judgment: Sandall v Cardna (unreported) 18^th May 1987 where Hardie Boys J in the Blenheim High Court put the question thus –“Does the defendant have a defence which ought to be heard?” Not every defence would satisfy such a test, each case must be assessed on its merits.”

39. The last Statement of Defence filed by the defendant pleads a denial and fraud but neither with any degree of particularity. The denial is a general one. And no details as to the alleged fraud are provided.
40. The case law on pleading fraud is crystalline. See for example the judgments of their Lordships in the leading authority of Three Rivers [2001] UKHL 16; [2001] 2 All ER 513:

“At page 578 per Lord Millet:

An allegation of fraud or dishonesty must be sufficiently particularized, and that particulars of facts which are consistent with honesty are not sufficient. This is only partly a matter of pleading. It is also a matter of substance. As I have said, the defendant is entitled to know the case he has to meet. But since dishonesty is usually a matter of inference from primary facts. This involves knowing not only that he is alleged to have acted dishonestly, but also the primary facts which will be relied upon at trial to justify the inference. At trial the court will not normally allow proof of primary facts which have not been pleaded, and will not do so in a case of fraud. It is not open to the court to infer dishonesty from facts which have not been pleaded, or from facts which have been pleaded but are consistent with honesty. There must be some fact which tilts the balance and justifies an inference of dishonesty, and this fact must be both pleaded and proved.” (emphasis is mine).

Per Lord Hobhouse of Woodborough at page 569:

“The law quite rightly requires that questions of dishonesty be approached more rigorously than other questions of fault. The burden of proof remains the civil burden – the balance of probabilities – but the assessment of the evidence has to take account of the seriousness of the allegations and, if that be the case, any unlikelihood that the person accused of dishonesty would have acted in that way. Dishonesty is not to be inferred from evidence which is equally consistent with mere negligence. At the pleading state the party making the allegation of dishonesty has to be prepared to particularize it and, if he is unable to do so, his allegation will be struck out.” (again emphasis is mine).

Lord Hutton quoting Buckley, LJ in Belmount Finance Corp Ltd v William Furniture Ltd [1979] 1 All ER 118 at 268:

“An allegation of dishonesty must be pleaded clearly and with particularity. That is laid down by the rules and it is a well-recognised rule of practice......

The facts alleged may sufficiently demonstrate that dishonestly is allegedly involved, but where the facts are complicated this may not be so clear, and in such a case it is incumbent upon the pleader to make it clear when dishonestly is alleged. If he uses language which is equivocal, rendering it doubtful whether he is in fact relying on the alleged dishonesty of the transaction, this will be fatal; the allegation of its dishonest nature will not have been pleaded with sufficient clarity.”

41. The defendants fail in this regard as well.

Conclusion

42. All in all, the applicant defendants have failed to meet, as they must for the onus in such matters is on them, the criteria for setting aside the 2004 judgment. From a discretion point of the view their conduct tardiness and apparent disregard for the legal process does not lend itself to an exercise in their favour either.
43. The application to set aside is refused, the formal proof judgment of 08 December 2004 of Vaai, J is to be given effect forthwith.
44. Costs follow the event, the plaintiff is entitled to costs. If the parties cannot agree, this can be referred back to the court.
    

JUSTICE NELSON