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Former Justice C.E.O. Masinalupe to be listed in amended 'malfeasance' claim

A claim alleging the Lands and Titles Court (L.T.C.) breached constitutional rights in a case over customary lands at Lefaga has been struck out. 

But the plaintiff, Matualoto Faumuina Makesi Stowers, has been told to amend and refile a claim relating to alleged "malfeasance" in public office against certain Police Officers and the former C.E.O. for the Ministry of Justice and Courts Administration, Masinalupe Tusipa Masinalupe. 

The L.T.C. itself was named as one of three defendants in a previous claim, which was struck out on Wednesday, in a ruling by Supreme Court Justice Leiataualesa Darryl Clarke. 

In his 19 page ruling, Justice Leiataualesa says the statement of claim, filed on June 22 this year, indicated the plaintiff is a family member of Chief Tusani Mafua of Tafagamanu Lefaga with customary rights over customary land known as Maugaoli. 

Land neighbouring Maugaoli, known as Suo, belongs to the Masinalupes (the former C.E.O. and defendant’s extended family).  

According to the plaintiff, the boundary between Maugaoli and Suo had changed without his family’s knowledge and consent. 

The statement of claim says in a March 1991 decision, the plaintiff argues that the L.T.C. changed the boundaries between the two villages without their knowledge and in so doing reduced the size of Maugaoli.

In 1979, a map of the boundary between the two villages of Safa’ato and Tafagamau was approved by the Registrar of Lands with the boundary of the two adjacent lands Maugaoli and Suo going “right up to the Tuasivi.”

“In his affidavit dated 24th August 2018, [...Masinalupe] states that a ruling concerning the boundary between Safa’atoa and Tafagamanu was made on [May 14, 1979...] He says that boundary has remained and been re-confirmed in subsequent decisions of the Land and Titles Court on 26 September 1991[...and again on] 2 March 2012," the claim says. 

“The second defendant [the L.T.C.] also failed to consider the plaintiff’s evidence before rendering its judgement."

According to the plaintiff's affidavit an appeal against that ruling was filed in late March 2012, soon after the original decision. However, six years have since passed. 

“It appears to me that the L.T.C. would accept whatever reason(s) that Masinalupe would put through for an adjournment," the affidavit said. 

“This is deliberately done, in order to frustrate and stall the process towards a full re-examination as ordered by the President for the LTC in his decision of 9 December 2016.

“The L.T.C. has denied me my rights under section 9 of the Constitution of Samoa 1960 “every person is entitled to a fair and public hearing within a reasonable time".

Furthermore the plaintiff says that five criminal complaints were lodged with the Ministry of Police alleging “willful and intentional damage” to wire fencing and a taro plantation, against a member of Masinalupe's family who was charged. 

However Police ceased their investigation when the Ministry of Police received a phone call from Masinalupe, the plaintiff claims.  

According to the ruling, the Police filed a motion to strike out on the basis that, as pleaded, even if the facts were accepted, the elements for the tort of misfeasance in public office were not adequately established. 

“In my view, the facts as pleaded by the plaintiff in support of his action for misfeasance in public office against the [Police] is poorly pleaded both in content and structure, disjointed and is somewhat confusing," ruled Justice Leiataualesa.

“As it stands, the claim against the first defendant [Police] is weak. At this juncture however, I am not satisfied that if properly pleaded, it can be said to be entirely frivolous and vexatious such as to exercise my inherent jurisdiction to strike it out."

"Regarding the second defendant, the plaintiff pleads that his ‘Third Cause of Action’ against the Second Defendant is for breaches of articles of the Constitution and each alleged breach however is a separate cause of action. 

"In response, the second defendant [the L.T.C.] applies to strike out the Plaintiff’s claim ostensibly on the grounds that judicial immunity applies to the Second Defendant. Also the facts pleaded by the plaintiff do not support the allegations of breaches of his Constitutional rights. 

“Alternatively, at no material time did the Second Defendant breach the Plaintiff’s Constitutional rights.” 

The proceeding against Masinalupe alleges misfeasance in public office. 

“Proceedings are brought personally in the name of the third defendant as ‘an ex Chief Executive Officer of the Ministry of Justice and Courts Administration and recently appointed Judge of the Land and Titles Court'," the statement reads. 

“Principally, the allegations relate to the third defendant [Masinalupe] allegedly acting illegally using his ‘status as the Chief Executive Officer…to stop the Police Investigation, by providing a false statement that L.T.C. Court has dealt with the matter in dispute, that was under Police investigation’; and (b) that he used his power and position in causing delays to have the Plaintiffs appeal filed in March 2012 heard.” 

Masinalupe in response filed a strike out the proceedings on the basis that at all material times, he was the registrar of the court carrying out his duties as Registrar of the Court and is entitled to judicial immunity and the protection afforded by law. 

“There was no targeted malice nor did the third defendant [Masinalupe] act in bad faith in the sense of the exercise of power for an improper or ulterior motive or acting knowing that he had no power to do the purported act complained of and will probably cause the Plaintiff damage; (c) the Plaintiff suffered no damage or loss as alleged; and (d) the Land and Titles Court decision at first instance remained in force," the motion read. 

In the end Justice Leiataualesa ruled the plaintiff is granted leave to amend the statement of Claim against the Police to expressly identify the ‘public officer’ against whom the allegation of misfeasance in public office is made; and what is the alleged act of each alleged ‘public officer’ impugned and the power said to have been exercised; and the damage alleged by the plaintiff as a result of the first defendant’s officers alleged acts. 

Particulars of the specific damage, place where the damage was caused and when they are alleged to have occurred should be pleaded. 

The claims against the Lands and Titles Court is struck out. 

And for the third defendant, Masinalupe, leave is granted to the plaintiff to amend the statement of claim to add greater specificity for each impugned act of the third defendant and whether the specific act impugned was in his capacity as registrar of the Land and Titles Court or whether it was as a Judge of the Land and Titles Court or Chief Executive Officer.

For each separate act, the power that was purportedly exercised by the Third Defendant as a public officer; and the damage alleged by the Plaintiff as a result of the third defendant’s alleged acts should be included in the amendment. 

The Plaintiff is ordered to file and serve his amended Statement of Claim within 14 days. This matter will be re-mentioned on Monday 7 October 2019.

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