Appeal Court sets aside judgement in land dispute

By Matai'a Lanuola Tusani T - Ah Tong 06 January 2022, 6:44PM

The Court of Appeal has set aside a judgement that took over 20 years to deliver relating to a dispute over the purchase of a block of land in Taufusi.

The appeal was lodged by the estate of Nuumoe Duffy and others against the Public Trust and others over a dispute concerning an oral agreement of purchase of land at Taufusi in 1956.

Lawyer Natasha Schuster, appearing for the appellant, submitted that the judgement made by the former Chief Justice, His Honour Patu Falefatu Sapolu, was misguided and not made with the benefit of access to partial or total original trial records.

She argued that the judgement was unsafe given that 21 years had elapsed between the date of the trial and the delivery of the decision.

The trial was first held on March 1998 with the judgement delivered on 16 May 2019.

Masoe Charlie Vaai acted for the Public Trustee in the civil claim.

The decision by the Court of Appeal was handed down by the Chief Justice, His Honour Satiu Simativa Perese, Justice Peter Blanchard and Justice Rhys Harrison last December.

The appellant alleged that the former Chief Justice failed in his duty to deliver the decision in a timely manner and other circumstances in which the judgement was prepared and delivered.

The ruling was in favour of the Public Trustee that acted as trustee of the estate of Aiono Robert Aiono of Vaiala and Fasitoo-uta and administrator of Mrs. Nora Aiono.

The former Chief Justice ruled to execute a transfer of the parcel in question to Mrs. Aiono.  

He concluded there was overwhelming evidence in support of evidence by Taito that Mrs. Duffy came to their family at Vaiala and he counted the cash of 600 pounds in the presence of his mother.

The appellant Mrs. Duffy passed away since the hearing of the case and the trustee and executor of her estate has pursued the appeal in that capacity.

Mrs. Duffy maintained that she did not enter into an oral agreement and sold her land for 600 pounds to Mrs. Aiono as the purchase price of the land in 1956.

In the Court of Appeal discussion, it noted that evidential transcripts and any notes made by the late Chief Justice had been lost or misplaced sometime after the trial completion.

The Court said he sought to reconstruct a fragmented record from material which he requested of counsel either directly or through registry.

“The only available inference is that when writing his judgement the late Chief Justice did not have available critical components of the trial record or access to his personal notes of impressions of witness’s evidence made progressively as an aide de memoire during the trial,” the Court found.

“Impressions may have endured. But his memory of the details of a particular witness’s evidence could not possibly have survived alone a lapse of 21 years especially with all the competing demands on the Judge’s time and resources through that period.

“The cumulative effects of the passage of time must have severely compromised the essential elements of the Judge’s decision making faculties.

“A judgement delivered in these circumstances is plainly unsafe and must be set aside. It is unnecessary to establish the additional element of particular errors which are attributable to the delay.”

The Court said the parties in the matter are the innocent victims of an inexplicable and inexcusable delay in doing justice.

“The appeal must be allowed and the judgement must be set aside,” the Court concluded.

“We decline to order a retrial in view of the passage of time since the relevant events and the deaths of the parties and principal witnesses.

“In circumstances where the result is beyond the control of either party there will be no order for costs.”

In relation to remedies, the Court noted possible entitlement to compensation from the Government for breach of their guaranteed rights under Article 9 (1) of the Constitution to a hearing of their claim within a reasonable time.

“It will be for them to take independent legal advice if they wish to pursue that avenue further.

“The Government should consider indemnifying both parties against their costs incurred in this appeal.” 

By Matai'a Lanuola Tusani T - Ah Tong 06 January 2022, 6:44PM
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