Judiciary review granted over matai title dispute
A Judiciary review has been granted in a dispute over the authority of the matai title Tagaloamatua and the title's "true heirs" at the village of Saoluafata.
The request for a Judiciary review was filed by plaintiffs; Dr. Luatupu Ioane Cleverly of New Zealand and other matai from Saoluafata against the President of the Lands and Titles Court (L.T.C.).
In the L.T.C. proceedings, documents from the Court records that were questioned were relied upon by Mulitalo Lisona Lavea to support their claim to authority over the Tagaloamatua title.
Accordingly the plaintiffs allege that the L.T.C President relied on the documents that purportedly cannot be relied on as genuine for the purpose of his determinations and was misled. The L.T.C. President had refused leave for Dr. Cleverly and others to appeal the case in 2017 resulting in the plaintiffs seeking judiciary review in the Supreme Court.
In response, the L.T.C. President opposed the judiciary review application seeking it to be struck out.
Justice Leiataualesa Daryl Clarke in his decision dismissed the application to strike out the plaintiff’s amended statement of claim and amended motion for judiciary review.
Lawyer, Fuimaono Sarona Ponifasio, represented the plaintiffs while Sefo Junior Ainuu, from the Attorney General’s Office acted on behalf of the L.T.C. President.
The plaintiffs amended statement of claim states that the ‘questioned documents’ had only been cited “by the parties represented by Mulitalo Lisona, Manoo Mulitalo Lutena and Pa’u Tafaogalupe Mulitalo.
Furthermore, the plaintiffs allege that the second and third Defendants relied on the ‘questioned documents’ to support their claims to authority over the title Tagaloamatua. In the 2015 L.T.C. determination, it is pleaded that the L.T.C. President re-affirmed the earlier decision LC 615
The President claimed it referred to both LC 615 and the 1922 Mavaega in its decision and denied leave to appeal the 2015 L.T.C. decision.
The Court heard that the plaintiff Mao Peter Rasch is said to have examined the L.T.C. file in 2018 and also confirmed that the ‘questioned documents’ are not original documents but photocopies. In support of the plaintiffs claim that the questioned documents are not genuine, an affidavit by Gordon Arthur Ian Sharfe of Wellington was prepared and filed in March 2018.
Mr. Sharfe is an expert document examiner and is the Chief Document examiner with the New Zealand Police.
The documents he examined were not original documents. He stated in his report dated 18 January 2018 that some are copies of copies and the image quality of many is poor.
“These factors have limited some of the examinations possible and the level of opinion that can be reached,” he said.
In Mr. Sharfe’s report, he states that “with the exception of the first page of the A1 document and the E1 document, none of the questioned documents are consistent with their text having been produced by typewriting.”
He also raised concerns over signatures in some of the documents stating that the signatures and the documents they are on cannot be relied on as genuine.
Furthermore the expert raised issues over stamp impressions. An affidavit from a former Assistant Chief Executive Officer for the Land and Titles Court, Tuiloma Lopez Williams, states that he had perused those documents.
He claims the documents have been stamped and sealed by the Registrars of the L.T.C. and the L.T.C. has the original copies of the documents stored in their records.
Justice Leiataualesa in his decision said the principle question in the proceeding is whether the plaintiffs right to a fair trial was breached and if it can succeed.
In particular, relevant for his determination is the assertion by the plaintiffs that the questioned documents had only been cited by the other parties with the plaintiffs discovering it after the L.T.C. hearing.
“If this is correct, the plaintiffs claim against the first and second defendants cannot be characterized as one that cannot possibly succeed, is hopeless or without foundation,” he ruled.
“This is because if the ‘questioned documents’ were not available to the plaintiffs at the hearings in the L.T.C. jurisdiction but they were however referred to and relied on by the first and second defendants, the L.T.C. questioned the parties on those documents and those documents were then relied on by the L.T.C. in its judgment, then the plaintiffs claim cannot in my assessment be said as one that cannot possibly succeed, hopeless or without foundation.
“The purported failure by the plaintiffs to have access to the ‘questioned documents’ for the purposes of the L.T.C. proceedings, if correct, may amount to a breach of the right to a fair trial in these circumstances.”
He added that the strength of the plaintiffs case is in the allegation that they did not have access to the ‘questioned documents’ prior to the L.T.C. hearings.
In terms of the question of determining the authenticity of the ‘questioned documents’, he said this is unlikely to be a question that goes to the fair conduct of the L.T.C. and L.T.C.A. hearings.
The Justice noted that no issue was raised in those hearings in the pleadings about the authenticity of those ‘questioned documents’.
“This is more an issue of new evidence,” said Justice Leiataualesa.
“I will not however at this juncture strike this part of the claim out as I am allowing the plaintiff an opportunity to file a further amended statement of claim and the plaintiff may reconsider this allegation given what I have said in this judgment.”