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Lamese v Nanumaga [2008] TVHC 12; Civil Case 03 of 2006 (28 May 2008)

IN THE HIGH COURT OF TUVALU
AT FUNAFUTI
Civil Jurisdiction

Civil Case no. 3/06

TEHUMU LAMESE,
KRISTINA TEHUMU,
NUESE TAIMI and
PUANIU PETIKE
Plaintiffs

v

KAUPULE O NANUMAGA and
PULE O KAUPULE O NANUMAGA
Respondents

BEFORE THE CHIEF JUSTICE

J Grover for plaintiffs
S Kofe for respondents

Hearing: 22 October 2007, 22 - 4 and 26 May 2008
Judgment: 28 May 2008

JUDGMENT

In 2001 and 2003 the Falekaupule of Nanumaga passed resolutions banning or restricting new "religions", which included, it appears, new denominations of the Christian church, from preaching on the island. The exact extent or intention of the resolution is a matter of some dispute but, at this stage in the proceedings, it is not necessary to determine that issue although it may be relevant in the determination of the appropriate penalty should contempt of a Court order made in June 2006 be proved. The evidence shows that there were, on the island in 2003, four denominations, the Ekalesia Kelisiano Tuvalu (EKT) which was traditionally the islands religion and, until relatively recently, the only church together with three more recent arrivals; the Seventh Day Adventist, Jehovah's Witness and Baha'i.

In June 2003, one Mase Teonea came to the island as a preacher of the Tuvalu Brethren Church (TBC) which had been registered in Tuvalu in September 2002. He conducted bible studies and, following another meeting of the Falekaupule, he was told to stop. The events which followed culminated in a stoning of one of the Brethren gatherings and, shortly afterwards, Mase's departure.

A number of the island community were members of the TBC and continued to follow its teachings. They have given evidence that they understood the resolutions only restricted proselytizing the new church and holding meetings and the plaintiffs have given evidence that they have observed that restriction.

However, the majority of the members of the Falekaupule still objected and the minutes of some of its more recent meetings which have been produced to the court suggest the true intention of most members was to drive the TBC off the island. On 21 April 2006, it resolved to dismiss any employee of the Kaupule who continued his membership of the TBC. At the same meeting it appears a suggestion was also made that they should ban the children of such members from attending school but it now seems clear that, although it was suggested, it was not adopted as part of the resolution.

When the threatened dismissals appeared imminent, the Trustees of the TBC, on 1 June 2006, applied to the Court ex parte for an interim injunction to prevent any such dismissals of kaupule or non-kaupule workers or anything to prevent the children of members of the TBC from attending school. The Order was made on 2 June 2006 and the defendants were restrained from any such action by themselves, their servants or agents or otherwise howsoever.

The Court had sought and received an undertaking from counsel for the plaintiff/applicant that he would file a claim and, on 16 June 2006, a writ and statement of claim was filed on behalf of the present four plaintiffs against the defendants for wrongful dismissal. Although the identity of the plaintiff had changed the action was filed under the same court number and counsel who now appears for the plaintiffs points out that this is the claim filed in obedience to the undertaking.

The case was listed in the October 2007 sitting of the High Court. On 12 October 2007, some days before the start of that sitting, notice of motion was filed by the plaintiffs for further directions to ensure compliance with the Order of 2 June 2006, to order that representatives of the defendants be summoned to court to provide undertakings to discontinue action amounting to contempt of court and for the plaintiffs to be reinstated. The application named the Trustees of the TBC as plaintiffs as had the initial application which led to the Order of 2 June 2006. The Court directed that Order should continue in force and adjourned the case to the next sitting. (I note that Order was incorrectly dated 11 October 2007 and should, I believe, have been 12 October.)

No appearance had been entered for the defendants to the writ of 16 June 2006 and the plaintiffs filed, also on 12 October 2007, an application for judgment in default. Judgment was given to the plaintiffs on liability and the case adjourned to this sitting for determination of quantum.

This sitting was scheduled to start on 21 May 2008 and, on 19 May 2008, appearance was entered for the second defendant. I accept that was done by Mr Kofe as a precautionary measure after he took over the case but I do not accept that appearance can be filed once judgment has been entered in default of appearance. Should the application to set the default judgment aside be granted, however, appearance may then be entered.

At this sitting, the Court was faced with applications by the defendants that:

1. the default judgment entered against the defendants in 22 October 2007 be set aside;

2. the whole of the statement of claim dated 16 June 2007 be struck out; and

3. the ex parte order of this Court dated 2 June 2006 be set aside.

The plaintiffs also make two applications:

1. in the writ the names of the four plaintiffs, to amend the name of the first defendant to Kaupule o Nanumaga; and

2. in the action filed under the name of the Trustees of the TBC, for orders that four named individuals holding the positions on Nanumaga of Pule Fenua, Pule o Kaupule, secretary of the Kaupule and member of the Kaupule be summoned to show cause why they should not be committed for contempt and that the orders of 2 June 2006 and 11 October 2007 remain in force until further Order.

On the first day of the sitting, I directed, for the avoidance of any doubt, that despite the different plaintiffs, both cases are the same action, they shall be tried together and shall proceed under the names of the four plaintiffs and not the Trustees of the TBC. It is clear that the first interim application was brought in the name of the Trustees because, at that time, dismissals were threatened but none had taken place. By the time the writ was filed two weeks later, the four plaintiffs had been dismissed and it was clear that the true cause of action was a specific claim for wrongful dismissal and the case should be intituled accordingly.

Application should have been made for such a change but I note the changes of Peoples' Lawyer which occurred over the relevant period including a period when the office was vacant. It is a regrettable failure but one which I am satisfied has led to no confusion about the identity of the claimants or of the nature of the claim.

A number of affidavits were filed by both sides and the deponents cross-examined in respect of the various applications before the Court.

Defence application to strike out the default judgment

Order 13 rule 8 of the Civil Procedure Rules, 1964, allows the court to set aside or vary any judgment in default of appearance on such terms as the court considers just.

In exercising such discretion, the court will consider the reasons for the failure, whether there was any delay in seeking to set the judgment aside and, if so, the length and reason for the delay and whether the defendants have a defence on the merits. The last ground is an overriding consideration and if an arguable defence is shown, the judgment should be set aside whatever the result of the other enquiries.

Any possible prejudice to the plaintiff should also be considered. In this case, the length of the delay, during which the plaintiffs have been unable to work, has clearly been to their prejudice.

The defence called Taimoe Mika, who was the acting Secretary of the Kaupule at the time the writ was served, and the Secretary, Sefuteni Liki, who took over again in July 2006. Both denied ever receiving the writ although the secretary agreed he had seen the hard copy of it on the files when he returned to the post. He told the Court that he took no action because "he assumed it had been dealt with". He made no enquiry about it nor did he report it to the Kaupule or the Falekaupule.

The evidence shows the writ and statement of claim was faxed to the island in the usual way on 23 June 2006 when the acting secretary was still in the position. The hard copy was posted on 17 July 2006 and was the copy seen by the Secretary later that month.

I was satisfied, at the time of the default judgment that there had clearly been service and I am still so satisfied on the evidence I have heard from the defence witnesses. Even if Sefuteni Liki did not see it until late in July 2006, action could and should have been taken and I do not accept as reasonable his explanation that he simply assumed it had been dealt with.

The default judgment was entered on 22 October 2007, Mr Kofe suggests there was no delay with the application to set it aside because it was filed in time for the next sitting of the Court. That misses the point of the rule. The time limits are set to ensure that other parties to the action know the steps being taken in the action in good time. That the court did not sit again until six months later does not remove the requirement that such an application should be made with proper expedition.

The defendants' evidence also showed that a letter was sent to the acting Attorney General by counsel for the plaintiffs on 12 October, 2007, enclosing, by way of service, a copy of the application for judgment in default. Even then, no application was filed to allow appearance to be entered out of time then or at the hearing of the application although a lawyer from the Attorney General's office was present at the hearing on 22 October. Sefuteni Liki was also called in the October, 2007, hearing and told the Court that he had received the statement of claim but he "did not know how to deal with it".

Finally Mr Kofe submits that there is a defence on the merits. He limits his submission to the suggestion that the statement of claim avers that they were servants of the Kaupule and the claim should have brought against it and not the Pule Kaupule. He further claims that one plaintiff, Kristina Tehumu, is not employed by the Kaupule but by the Namumaga Women's Centre.

I do not consider that defence has any real chance of success on the merits especially measured against the evidence of the witnesses called by the defence. The dismissals by the Kaupule, including that of Kristina Tehumu, are admitted, no attempt has been made to deny they were made in disregard of the proper procedures and the defence witnesses gave evidence that the Attorney General's office had advised them at the time that the dismissals were unlawful - a fact that makes the submission by Mr Kofe, from the same office, that there is a real chance of success, startling.

With respect to the claim against the Falekaupule, he submits it is bound to fail because, by section 111(3) of the Falekaupule Act, 1999, any legal redress for "any act or omission of [the] Falekaupule in respect of its statutory functions shall [be by] proceedings against the Kaupule as agent for the Falekaupule". That is correct and conceded by Ms Grover. However, it was a mistake (by a previous lawyer) and is cured, she suggests, by her application to change the name of the first defendant. I would add that, although the defence took no step in the action, the length of delays by the defence is strong evidence of acquiescence and, in itself, could be grounds for refusing to consider this application in respect of the first defendant.

I am satisfied that the length of the delay was not reasonable, the reasons for the delay are inadequate and there is no real likelihood of success in the defence as established by the evidence of the witnesses called by the defence at this hearing.

Whenever there is an application to set aside a judgment in default of appearance or defence, it should be accompanied by a copy of the proposed defence or an affidavit of merits. However, I have heard the witnesses for the defence and that, together with the submissions of Mr Kofe, have enabled me to understand the defence he would pursue. This case has been delayed for a number of reasons one of which is the length of time between sittings of this Court and I do not wish to prolong it by a purely procedural matter when it is not essential.

The application to set aside the default judgment is refused.

Plaintiff's application to change the name of the first defendant

It is convenient to deal with this next.

The Kaupule is, by section 5(2) of the Act, "the executive arm of the Falekaupule and shall in the Falekaupule area perform all the functions conferred on the Falekaupule by this or any other Act" with the exception of certain functions which are not relevant to this case.

The terms of the Act, whilst distinguishing the two bodies treat them effectively as a single entity representing the community of the area they cover. The actions leading to the events about which the action has been brought, were the decision of the Falekaupule implemented by the Kaupule.

Ms Grover submits that the power of the Kaupule to act is as an agent of the Falekaupule and whilst it is conceded that the Falekaupule cannot and should not have been named as a party in the action and its inclusion was a genuine mistake, this is no more than a misnomer and to change the name causes no prejudice to the defence or confusion as to the cause of action being pursued against the Falekaupule through its executive arm.

She relies on Order 17 rule 28 as giving the court a wide discretion. That rule is in Division III of Order and applies to the administration and execution of trusts but a similarly wide discretion is given to the court under rule 11. That rule allows the court at any stage of the proceedings to strike out names improperly joined and add other names if it is necessary "to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter".

Clearly the court in exercising such a discretion must have regard to the rights of the other party and the possibility of prejudice to either side. I am satisfied that the application to substitute the Kaupule as the first defendant should be granted and that it neither changes the nature of the claim nor the circumstances from which it arose.

I am also satisfied that the substitution of the Kaupule for the Falekaupule in the judgment on liability does no more than to correct the name of the body against whom the claim has been and is still directed.

The plaintiff's application to change the name of the first defendant is allowed.

Defence application to strike out the statement of claim filed on 16 June 2006

It appears that this application was to be pursued only if both the application to set aside the default judgment is successful and the application to change the name of the first defendant fails.

Neither contingency has occurred and so the application to strike out the writ and statement of claim is refused.

Defence application to set aside the ex parte order of 2 June 2006

The injunction was granted under Order 53 rule 6. Mr Kofe has submitted correctly the tests which a court must consider when deciding whether or not grant an injunction. I do not set them out. Those tests were applied when I granted the ex parte application and no suggestion has been advanced by counsel to suggest that decision was incorrect at the time the order was made. Clearly events have overtaken the Order as far as these four plaintiffs are concerned but the need for the injunction to remain in force is demonstrated by more recent dismissals by the defendants.

I accepted the need for the application to be heard ex parte because of the apparent urgency of the matter. That need was confirmed by the fact the plaintiffs were dismissed later the same day that the Order was made and the Falekaupule both confirmed their decision and stated their opposition to the injunction at a meeting the next day, 3 June 2006.

As is usual in all injunctions granted ex parte, because the urgency of the circumstances did not allow time to consult the other side, the Court gave the defendants liberty to apply to alter, vary or amend the Order at any time. The only restriction was that the defendants should give fourteen days notice to the other side. No such application was made by the defendants.

The copy of the minutes of the meeting of the Falekaupule on 3 June show that many of the members misunderstood the meaning of that provision and took it to be a requirement that any objection had to be made within 14 days despite the repeated efforts of the acting Secretary of the Kaupule, Taimoe Mika, and the, then, Pule o Kaupule, Opeta Mumuni, to explain in the face of abuse and demands that Taimoe should leave the meeting.

It appears a suggested response was sent to the Attorney General but it was never filed with the Court.

I also ordered that, if the plaintiffs should seek (as they did) to extend the Order beyond the next (i.e. October, 2007) sitting of the Court, the application had to be made inter partes that is to say with both sides given an opportunity to appear and make representations.

Although a lawyer from the Attorney General's office appeared at that sitting and called two witnesses, their evidence was more directed at justification of their decision to disobey the Order and no application was made to set it aside or to oppose the plaintiffs' application that the order of 2 June 2006 remain in force.

The evidence shows that there have been un-denied breaches of the Order which are the subject of contempt proceedings. I have been given no good reason why it should be set aside and the application is refused.

Plaintiffs' application for named persons to show cause why they should not be committed for contempt

The plaintiffs seek leave to summon four named persons for contempt of the Order of 2 June 2006 as continued by the Order of 12 October 2007 to show cause. The plaintiffs have filed the affidavits of a number of witnesses in support.

I am satisfied that they disclose a prima facie case of contempt and I give leave.

I shall hear counsel on the necessary direction for the conduct of these proceedings. The matter shall be put in the list for hearing once affidavits of service have been filed with the Court and shall be listed for trial on the first day of the next sitting of this Court the date of which will be announced.

Dated: 28^th day of May 2008

Hon. Gordon Ward
CHIEF JUSTICE