In this fifth of a series exploring the Tealiki Court case, I discuss the appeal scheduled for Q1, 2018. I will update this post following the appeal whenever it occurs. Clearly speculation is in order for the moment. Enjoy.
Judge Clarence Nelson in Samoa issued a judgment in 2017 in which he denied the Plaintiff access to lands claimed in 2005/2006 that were owned by a Rarotongan called Tealiki. The judge posited that there were more than one Tealiki from Rarotonga, despite there being no evidence OF another Tealiki.
Mika’s survivor’s lawyers (the same ones who lost the hearing) have lodged an appeal (PDF) with a date yet to be scheduled but likely to be in early 2018.
While legally the matters are clear and favourable on facts, (there is more evidence outside of the case than presented in court), my take is that all things being equal, the likely outcome of the appeal in Samoa is an adverse ruling, due to political activities. Subversion can occur through the selection of biased judges, but even honest ones can be pulled in a certain direction (Note Nelson J. who bumped it up to a certain appeal essentially saying, “I’m not convinced!”)
The grounds for appeal are:
- Evidence additional to that presented at trial was used;
- An imbalance in judging the data;
- Omission of key data;
- The Doctrine of Latches; and
- Latches doesn’t apply to an incomplete distribution.
While I am personally stunned that a judge would go to a government department get them to do research on a case that has the potential to negatively affect powerful government employees (and use government resources secretly to contribute to his findings), the first cause, that the judge used additional evidence could be explained away . . . Samoa is a [enter your own concept here] and therefore the judge was wise to do this. The first cause would then be out!
The second and third grounds are matters of judgment. Easy to dispose of – “We think that while the judge may not have ‘fully considered’ or ‘weighed things a certain way’ but nevertheless we, like him, are not fully persuaded” – The whole case lost – gone! Easy. Maybe not fair or just but a judgment call nonetheless that gives plausible deniability.
The Doctrine of Latches is one that can possibly have legs to be challenged successfully but this is ancillary to the primary argument so it cannot really pull the whole case back from the pits.
The last grounds for appeal appear to have credibility. The judges could easily say that they are not concerned with the wider implications. They were called to address the narrow issues and that he/they did exactly that. The core issue of corruption still remains unproven . . . Too bad!
My non-legal assessment is that there is wide open opportunity to lose the appeal. Even winning on the Grounds of 4 & 5 will not suffice to carry the day. IMHO, this appeal is WIDE OPEN to subversion.
We have to remember that the trouble with lawyers is that they think like lawyers. They only see the legal stuff. Samoa is not a legal country; it is a political country with relationships much more important than issues of truth or justice. It’s NOTHING for them to tweak things politically if it is in their interest to do so.
The case was not lost due to legal issues. It was lost for political reasons. The lawyers did not know or properly understand who they were up against. They assumed that they “had enough” and found out the hard way that it wasn’t. The same people, with the same thinking and approach are conducting the Appeal. Doing the same thing and expecting a different answer is a definition of insanity – they will get the same result.
The case has been poorly managed in multiple ways and dimensions, with inexperience, unwarranted trust, personalities, culture, skulduggery and more all affecting it, to the detriment of many, both those directly and indirectly associated.
I wish Mika’s family the best, but fear the worst. They should be petitioning the Head of State for impartial, new judges from either Australia or New Zealand, specifically denying any judge who has or has had any previous connection with Samoa or the Chief Justice the possibility of sitting on their Appeal, at the very minimum.
In the next post I mention random facts and share thoughts outside of the case itself before wrapping up with a commentary on the spiritual significance of this case for Samoa’s spiritual health.