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Former Chief Justice Patu's decision, 22-years after hearing, challenged

A Supreme Court decision delivered by former Chief Justice, Patu Tiava'asu'e Falefatu Sapolu, twenty two years after the hearing was held, has been challenged in the Court of Appeal.

The decision has become caught up in a cross appeal between the Vaivaimuli Corporation Ltd, Savai’i, and National Pacific Insurance (N.P.I.). The cross appeal was heard by the Court of Appeal on Wednesday. 

In the civil matter, N.P.I. is asking the Court to reverse a judgment handed down by former Chief Justice Patu in August 2019. But the Vaivaimuli Corporation, through their lawyer, Ruby Drake, has filed a countersuit to dismiss the appeal by N.P.I.

The dispute involves the Insurance coverage of a building owned by the Vaivaimuli Corporation, which was completely destroyed by Cyclone Ofa in 1990.

Lesatele Rapi Vaai and his family own Vaivaimuli. The construction of the two-storey building in Sataua, Savai’i began in 1985. It was completed in March of 1986. 

The building, which was close to the ocean, doubled as a home and shop for the family. 

They lived upstairs in a four bedroom residence and on the first storey were their shop and storage rooms where they kept surplus koko Samoa and copra.

When the building was completed, Lesatele’s son, Atina’e Vaai, travelled to Apia and bought an insurance policy on their home/shop from N.P.I's Manager at the time, John Filemu.

The policy included cyclone coverage. The family paid their annual premium for the next four years – in 1987, 1988, 1989 and 1990. 

Cyclone Ofa struck Samoa in 1990 and lasted four days. The building owned by the Vaai family was completely destroyed in the storm and they lost everything. Four days after the storm, a member of the Vaai family travelled to Apia to file a claim with N.P.I.

N.P.I. informed the family that their home and building was not covered for a cyclone.

After storms in Fiji, N.P.I. decided to exclude all cyclone coverage for Samoa. The family was informed that they must pay for cyclone coverage.

While N.P.I. said during trial that a notice was sent to the Vaai family telling them of the change in regard to cyclone coverage, there was no evidence of such a notice at trial. The Vaai family said they never received a notice.

The hearing of the civil matter was held over two days on 29 and 30 April of 1997. 

The former Chief Justice Patu, who retired in 2019, presided.

More than two decades after the hearing was held, on 26 August 2019, former Chief Justice Patu delivered a decision in favour of the Vaivaimuli Corporation.

The lawyer for Vaivaimuli, Mrs. Drake told the Court of Appeal that she wrote to C.J. Patu each year for 22 years, asking for a decision in the Vaivaimuli case, and other court cases.

The Court was also told that Mrs. Drake wrote to the Minister of Justice and Courts Administration (M.J.C.A.), Faaolesa Katopau Ainuu, in 2019, to inform him that the former Chief Justice Patu was not delivering his decisions in a timely manner.

Fast forward to the proceedings before the Court of Appeal on Wednesday, the N.P.I. has appealed Patu’s decision arguing that it was delayed and it is unsafe to deliver a decision after 22 years. They also say the former Chief Justice did not analyse the facts.

Lawyer, Fiona Ey, of Clarke Ey Koria Lawyers, is representing N.P.I.

The Court file in the Vaivaimuli and N.P.I. matter has been lost, Mrs. Drake told the Court. She said there has been “no justice” and “no righteousness” for her client.

Chief Justice Satiu Simativa Perese, Justice Robert Lloyd Fisher, Justice John Upton and Justice Sir Peter Blanchard are presiding.

They have reserved their decision.

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