The Tealiki Story – 4. Court & Judgment

I share here in the fourth of a series, the court case and judgment of Nelson J, heard in Samoa 2016, and delivered in 2017 relating to the Tealiki land theft. 

I was not at the trial (I got booted out of Samoa for revealing the PM’s mistress a few months before) but what was of note however was that the people who attended the hearing universally spoke of a clear case put forward by Mika’s lawyers. Jane and Simon from Australia had prepared well and presented their evidence with aplomb. Even the Judge appreciated their simple, helpful, professionalism. Simon in particular knew the facts well. Evidence was brought to court and shown from Mika’s side. Hardly any (well, actually none) came from the other, except witnesses who had their own version of events without even one piece of documentary evidence!

That such a clear case could fail was unthinkable to those present, but it did. Some months later the judgment came against Mika and against all predictions.

Nelson J’s analysis of the case is read in Clause 6:

Central to the proceedings therefore is the question of whether or not the plaintiffs can prove to the required standard they are descendants of Teariki the Apia landowner. The debate revolves around the existence or otherwise of the union of Teariki and Faaluaumeke and if so whether this is Teariki of Apia.

and Clause 56:

It is necessary for the plaintiffs to establish two core matters: firstly that they are descended from Teariki the Rarotongan through his union with Faaluaumeke Fuimaono of Falefa. And secondly that Teariki the Rarotongan of Falefa is one and the same person as Teariki the Rarotongan landowner of Apia and brother to Lili and Tiresa.

His take was that the evidence did stackup (Clause 57) on the first aspect of the case:

Individually, each piece of evidence does not in my mind attain the level of proof necessary. But when considered collectively, like the strands of rope in a cord of circumstantial evidence, a clearer evidentiary picture emerges.

Judge Nelson’s entire ruling can be viewed online. He covers many other legal issues and the counter-claim.

In short form here it is:

  • The plaintiffs have established on a balance of probabilities that they are descended from the Rarotongan man ‘Keliki’ also known as ‘Teariki’ who by his union with Faaluaumeke of the Sā-Fuimaono family of Falefa produced a son Valeriano Lafoia who held the title Fuimaono in the village of Falefa.
  • Further, that they are descended from the said Fuimaono Valeriano Lafoia.
  • The plaintiffs have not established on a balance of probabilities that ‘Keliki’ also known as ‘Teariki’ of Falefa is Teariki of Apia, son of Teariki Apai of Rarotonga and Sieni Tamapua of the Sā-Tamapua family of Matafagatele.
  • They accordingly have no claim to lands of the Estate of Teariki of Apia currently being administered by the first defendant.
  • Had they satisfied the court they were descendants of Teariki of Apia, their claim would still fail on the basis of the equitable doctrines of laches and acquiescence given their inactivity until in or about 2006.
  • There is no merit in the legitimacy or Limitation Act arguments.
  • Or in the Counter-claim which should be dismissed.
  • Judgment will therefore be entered in favour of the defendants and the third defendants Counter-claim is dismissed.
  • As each party has to some degree been successful, I make no order as to costs.

I read (past tense) and read (present tense) all judgements from Samoan courts as an exercise in learning. I commenced this in early 2015 and still do this. This means that I have a very good layman’s overview of the Samoan judicial system and how it works. A string of judgments of commercial, land and other conflicts gives me a feel for the way judges think, and how they approach matters.

I also know and respect Judge Nelson. People who grew up with him speak highly of him. He is an astute experienced judge, yet his judgment here is weird. What gives? It’s out of character; it is against all expectations; it leaves holes for exploitation/appeal and waffles on using information not presented at trial, and seemingly omits to take into account critical facts that WERE presented at trial.

When something doesn’t make sense, I ask questions until it does. I’ve done that. This is my hypothesis . . . Clarence Nelson J came under pressure to give this ruling. There can be no doubt in my mind that this is the case.

  1. The Chief Justice (his boss) is up to his eyeballs in conflict of interest. A Patu, the CJ resides on the ‘stolen’ land, personally. He declared his conflict of interest in the Tealiki case previously. I cannot imagine that a mere Supreme Court Judge would survive any undermining of the CJ’s personal fortunes. Siberia would be an attractive option if Nelson J had ruled against the CJ’s serious personal losses! Remember that this is Samoa, not the West;
  2. While not known or talked about openly to date, the Samoan authorities were employed to research post-trial and this information was used in the judgment. Not only that, Nelson J did not mention this nor declare it! Excuse me? This to me is a prime facie breach of trust. Here we have the judiciary using a suspect regime to secure additional information external to the trial in order to pass a finding that is unexpected and contrary to public expectations and saves the CJ’s [and others’] bacon. WTF?!
  3. The ruling is dubious in more than one sense. The application of the doctrine of Latches & Acquiescence is marginal in my books. There is no evidence that there were two Tealikis from Rarotonga. Samoa is a small place. That two Tealikis from Rarotonga existed back then stretches credibility and this the conclusion of the judge with no actual evidence of two Tealikis? The ruling seems and looks to me like a partial, incomplete, best effort to be deliberately turned over on appeal.

And this gets to the point where I think it hits truth . . . Nelson J, was under pressure to deny justice to Mika and his family. He took that opportunities that were afforded him, essentially saying, “I’m not convinced. There could have been other Tealikis!” and he did this deliberately, to bump the matter up to another court – the Appeal Court, but doing it in a way that gave Mika and his family good opportunity to get justice.

Now I could be wrong on this but it’s the only explanation that makes sense to me.

These lawyers were professional but failed. Why? The answer is because they didn’t understand what they were up against. I wish to mention again the concept that lawyers think like lawyers. This is good in a courtroom, but not always in the real world. Samoa is the real world, where influences, interests, politics and money speak a lot louder than law.

Mika and his family trusted lawyers to get it it right, and they did from a legal perspective (and would have in Australia where they came from) but they lost when the real world fought back to protect their own in Samoa. That’s Samoa!

In my next post I dive into the Tealiki Appeal, looking at the grounds for appeal and giving a layman’s take on how it all pans out – legally and realistically. It’s a good but bad story coming up . . .

 

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