Court to rule in misfeasance in public office claim
The Supreme Court is yet to rule in a strike out motion on misfeasance in public offices claim against the Ministry of Police and former Chief Executive Officer of the Ministry of Justice, Masinalupe Tusipa Masinalupe.
The civil claim is brought by Matualoto Faumuina Makesi Stowers of Wellington New Zealand over a dispute on customary land boundaries at Tafagamanu Lefaga.
The family member of the Tusani Mafua family in Tafagamanu claims the boundaries for the customary land known as Maugaoli and Suo has been changed without his family’s knowledge and consent.
He accused the former Justice C.E.O. of changing the boundary of the customary land without their knowledge allegedly resulting in a reduction in the size of Maugaoli land.
In response to the allegations, Masinalupe in an affidavit before the Court stated the ruling concerning the boundary between Safa’atoa and Tafagamanu was made on the 14 May 1979.
He says the boundary has remained and been reconfirmed in subsequently decisions of the L.T.C. on 26 September 1991 and March 2012.
As for Police, Matualoto alleges that Police did not act appropriately when it discontinued an investigation into a complaint filed by his family against Masinalupe’s relative for alleged willful damage to a taro plantation.
His cause of action of misfeasance in public office against Police alleges that when the authority discontinued its investigation for the complaint the Police was therefore influenced by Masinalupe without taking any further actions.
Matualoto alleged that Masinalupe called Police and directed them that the matter has been dealt with in the L.T.C. Court and therefore committed an omission that was invalid.
Police had filed for a strike out motion for the claim together with two other defendants.
In his decision, Justice Leiataualesa said it is premature to strike out the proceedings against Police on the grounds of non-compliance.
He explained the first difficulty for the claim against Police is because it does not specifically identify which police officer is alleged to have committed misfeasance in public office.
Justice Leiataualesa ordered the plaintiff to amend his statement of claim and to particularise his claim.
The claim against the L.T.C. who is the second defendant is over its alleged delay in granting the various adjournments in hearing Matualoto’s appeal in the L.T.C.
He alleges this delay constitutes a breach of his right to a fair trial.
Justice Leiataualesa struck out the claim against L.T.C. stating it was plainly and obviously “untenable by virtue of the doctrine of judicial immunity…”
“The appeal brought by the Plaintiff was dismissed by the second defendant on the 26th March 2019,” he said.
“The second defendant had therefore re-affirmed the judgment of the Court at first instance and the decision under appeal was upheld.
“The judgment rendered on the 2nd March 2012 remains undisturbed. The ‘correct boundaries’ were as determined in 2012.”
Furthermore, Justice Leiataualesa said “even if there was unreasonable delay in the hearing of the appeal (which I do not need to determine), there is no harm to the Plaintiff nor any prejudice”.
“The judgment of the Second Defendant at first instance has been upheld.”
The third defendant in the claim is Masinalupe who has been accused of alleged misfeasance in public office during his term as C.E.O. for Justice.
Principally, the allegation accuses Masinalupe of using status as the Chief Executive Officer to stop the Police Investigation, by providing a false statement that LT.C. Court has dealt with the matter in dispute, that was under Police investigation.
Also the former C.E.O. is alleged to have used his power and position in causing delays to Matualoto’s appeal filed in March 2012.
Masinalupe had filed for a strike out on the proceedings on the basis that he carrying out his duties as Registrar of the Court and is entitled to judicial immunity.
Matualoto argues that judicial immunity applying to a Registrar only applies to a Registrar exercising a judicial function.
“Interfering in a Police investigation causing the Police to stop an investigation into the activities of the third defendant’s family members is not exercising a judicial function and therefore, judicial immunity does not apply,” the Court heard.
Justice Leiataualesa said he accepts the plaintiff’s pleadings are deficient and whilst the allegations against Masinalupe for misfeasance in public office appear weak and are susceptible to being struck out.
“I encourage counsel for the plaintiff to carefully consider the elements of the cause of action for misfeasance in public office, the requirements for proper particulars to be set out in the Statement of Claim and to consider what I have said when addressing the amendments for which leave is hereby granted.”
The plaintiff has been asked to file the amended statement of claim and the matter has been referred back to civil mention.