Land and Titles Court appeal dismissed

An appeal, which was filed by the Lands and Titles Court and several Mulifanua matai opposing a judicial review granted by the Supreme Court over a customary land dispute, has been dismissed.

The first appellant in the civil case is the Land and Titles Court [L.T.C.] and the Appellant Division of L.T.C., which was represented by lawyers, Sefo Ainuu and Tafailagi Peniamina.

Lawyer Tufuga Fagaloa acted for the second appellants; Taimalelagi Naotala, Tupuivao Naoupu, Sinapioa Joyce and Taimalelagi Tiatia.

The respondent is Moananu Fanolua, who was represented by lawyer, Leota Tima Leavai.

Fanolua had unsuccessfully appealed a decision in the L.T.C. and Appellate Court relating to a disputed land survey plan regarding land in Mulifanua.

The background of the case is a customary land dispute between the Taimalelagi and others against Fanolua in Fuailolo’o Mulifanua.

At Fuailolo’o Mulifanua, there were two adjoining customary lands. 

One was known as Faimata that belonged to the title Moananu of which the respondent is the paramount chief.

The adjoining land was known as Fogalefue and it belonged to the title Tupuivao which is represented in these proceedings by the second appellants.

Fanolua and his family live in a house in the area formed by Faimata and Fogalefue.

There has been a long-running dispute over the location of the boundary between the two.

The respondent claims his house is located solely on Faimata and Taimalelagi and others who are second appellants say it is located on Fogalefue.

This led to Taimalelagi and his family filing a petition in the Land and Titles Court. The petition sought an order evicting Fanolua.

The L.T.C. heard the petition on 7 April 2016, held a site visit on 22 April 2016 and gave its decision on 6 May 2016.

It decided against the respondent and based its decision on a survey plan disputed by Fanolua.

Fanolua then filed an application for leave to appeal to the A.D.L.T.C. and it was dismissed in its decision of 3 March 2017.

He further challenged the decisions from the L.T.C. Appellate Division in the Supreme Court seeking a judicial review.

But both appellants had applied to strike out the Supreme Court proceedings.

Justice Mata Keli Tuatagaloa had dismissed the appellants’ application.

From that decision the first and second appellants have appealed.

The Court of Appeal has, however, upheld the decision of Justice Tuatagaloa.

Chief Justice, His Honour Satiu Simativa Perese, Justice Fisher and Justice Harrison presided over the matter in the Court of Appeal.

“…The appellants have misunderstood the principles on which strike out applications are decided,” the Court of Appeal ruled.

“If they had started with those principles it would have quickly become apparent that the application to strike out could not succeed.

“The way forward was to proceed to trial where the onus would lie on the respondent.”

In its judgment, the Court of Appeal stated that where a defendant applies to strike out – on the basis that it disagrees with the plaintiff’s pleaded facts – the application will nearly always fail.

For the purpose of a strike out application, the Court treats the plaintiff’s pleaded allegations as proved, it added. 

“The pleading must be taken at face value because a plaintiff is under no obligation to provide its evidence until trial,” states the judgment.

“If they had appreciated these principles the present appellants would not have filed their application to strike out.

“However convincing they considered their own evidence to be, it ought to have been apparent that it would simply set up a conflict with the respondent’s pleading.

“The time to test the evidence in this case was at trial, not on a strike out application.”

The Court of Appeal dismissed the appeal ordering the first appellant to pay Fanolua costs of $5,000.

“We accept that the second appellants were reacting to a lead shown by the first appellants,” it stated. “There will be no order for costs against the second appellants.”

Before it closed its case, the Court of Appeal also made another observation under “addendum” where “unsolicited submissions” were made after the Court adjourned after hearing and reserved its decision.

“We did not reserve leave to any party to file further material after the hearing,” the Court observed.

“On the following day the first appellants filed unsolicited submissions.

“The submissions sought to revisit some of the matters traversed during the hearing. The first appellants did not apply for leave to file the further submissions.”

In their judgment, the Court pointed out that leave was not reserved at the hearing in this case and a further appeal is not possible.

“In the present case leave to adduce further submissions was not reserved at the hearing,” it stated in its ruling.

“There was no post-hearing application for leave to file them.

“We therefore decline to receive them. It may be of consolation, however, to appreciate that the matters traversed in the memorandum would not have affected the outcome."

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