IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU
Stowers v Stowers and Fruean and Public Trustee [2012] WSCA 11   

Case name: Stowers v Stowers and Fruean and Public Trustee
Citation: [2012] WSCA 11  
Decision date:  31 May 2012
Parties: 
vaoita stowers, Domestic Duties v ANETI STOWERS, MERCY STOWERS and PETER STOWERS JUNIOR, her children, all of Fugalei near Apia and makerita stowers, Widow, and ALICE STOWERS and pepe christian fruean, Chief Executive Officer, Vaiala and public trustee, being a corporation sole under section 4 of the Public Trust Office Act 1975
Hearing date(s): 31 May 2012
File number(s): C.A. 12/11
Jurisdiction: Civil
Place of delivery: Mulinuu
Judge(s): 
Honourable Justice Baragwanath
Honourable Justice Fisher
Honourable Justice Galbraith
On appeal from:
Order:
Representation: 
T S Toailoa for appellants
R Schuster for first respondent
J Brunt for second respondent
A Roma for third respondent
Catchwords: 
Words and phrases:
Legislation cited:
The Infants Ordinance 1961 of Samoa states
Cases cited:
Summary of decision:

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU
C.A. 12/11
BETWEEN
vaoita stowers, Domestic Duties, ANETI STOWERS, MERCY STOWERS and PETER STOWERS JUNIOR, her children, all of Fugalei near Apia
Appellants

AND
makerita stowers, Widow, and ALICE STOWERS
First Respondents

AND
pepe christian fruean, Chief Executive Officer, Vaiala
Second Respondent

AND
public trustee, being a corporation sole under section 4 of the Public Trust Office Act 1975
Third Respondent

Coram:
Honourable Justice Baragwanath
Honourable Justice Fisher
Honourable Justice Galbraith
Counsel: 
T S Toailoa for appellants
R Schuster for first respondent
J Brunt for second respondent
A Roma for third respondent
Hearing:	31 May 2012	
Judgment:	31 May 2012

JUDGMENT OF THE COURT

Introduction
1.	This appeal concerns claims to land at Vaimea comprising 3/8 of an acre and owned by the late Peter Stowers who died intestate in 1996.   The Chief Justice found that there was a single house on the property, which has been occupied for some 40 years by his de facto wife Vaoita Stowers, 26 of them while living with Peter.  Also living in the house are her son Mercy and his wife and two children. Her other children to Peter are Aneti and Peter junior.   They are on one side of this case
2.	On the other side are Makerita Stowers, whom Peter married over 50 years ago, and Alice, whom a decade later they adopted.   Soon after the adoption Peter and Makerita separated and thereafter lived apart for over 25 years until his death.  Despite the evidence of Makerita, accepted by the Chief Justice, that she and Alice joined Vaoita in the same house following Peter’s death, we were told by Mr Brunt from the bar that there are in fact two houses, the second of which was the one occupied following Peter’s death by Makerita and Alice.
3.	 The case raises five issues.  The first is whether by Article 15 of the Constitution of Samoa Vaoita is to be treated as if she and Peter had married.  The second is whether by Article 15 Vaoita’s children, who would be illegitimate in terms of the statute law and existing judicial authority, are to be regarded in law as legitimate.  The third is as to the consequences for Aneti, Mercy and Peter of an order of the New Zealand Family Court for their adoption by a New Zealand couple which was later set aside.  The fourth is whether relief is available to Vaoita and Aneti, Mercy and Peter in respect of a sale to Pepe Fruean by the Public Trustee as Peter’s administrator of the Vaimea land, including the house Vaoita has occupied for so long.  The fifth is whether all or any of Vaoita, Aneti, Mercy and Peter are entitled as to a greater sum against Makerita and Alice than the $15,000 awarded by the Chief Justice. Notice of cross-appeal was given by Makerita and Alice against the award of the $15,000.
The first and second issues:  the effect of Article 15 of the Constitution
4.	We deal together with the constitutional issues as to the status of Vaoita and her children.
Section 44 of the Administration Act 1975 states:
44. Succession to real and personal estate on intestacy –
(1) Where any person dies intestate as to any real or personal estate, that estate shall be distributed in the manner or be held on the trusts mentioned in this section, namely: 
(a) If the intestate leaves a husband or wife, the surviving husband or wife shall take the personal chattels absolutely, and, in addition, the residue of the estate shall stand charged with the payment of a sum of $5,000 to the surviving husband or wife with interest thereon from the date of the death until paid or appropriated, at the rate of 5 percent per annum, and, subject to providing for that sum and the interest thereon, the residue of the estate shall be held – 
(i) If the intestate leaves issue, in trust as to one-third for the surviving husband or wife absolutely and as to the other two-thirds on the statutory trusts for the issue of the intestate;...
The statutory trusts for the issue of the intestate mean that adult children share the two-thirds equally. 
5.	On the basis that Vaoita is not Peter’s “wife” because they did not marry, and Aneti, Mercy and Peter are not his “issue” because they are illegitimate, the Public Trustee has paid one third of the estate to Makerita as Peter’s wife and two-thirds to Alice as his only legitimate child.  That decision was upheld by the Chief Justice.
6.	Article 15 of the Constitution, which Article 4 empowers the Supreme Court to enforce, states:
15. Freedom from discriminatory legislation –
 (1) All persons are equal before the law and entitled to equal protection under the law. 
(2) Except as expressly authorised under the provisions of this Constitution, no law and no executive or administrative action of the State shall, either expressly or in its practical application, subject any person or persons to any disability or restriction or confer on any person or persons any privilege or advantage on grounds only of descent, sex, language, religion, political or other opinion, social origin, place of birth, family status, or any of them.
7.	Vaoita claims that Article 15 entitles her to be treated on equal terms to a wife of Peter and Aneti, Mercy and Peter claim that it entitles them to be treated equally to legitimate children.
8.	The Chief Justice has given leave to appeal to this Court against his contrary decision on the basis that the claim is arguable.    The point, is of the utmost public importance was not discussed in his judgment or in any other decision of the Supreme Court.
9.	While we accept Mr Toailoa’s submission that we have jurisdiction to determine them, we have decided not to do so.  That is for three related reasons.  The first is that an appellate court called on to determine such a point should, if reasonably possible, do so on appeal with the benefit of a reasoned decision of the Supreme Court.  The alternative, of sitting effectively at first instance, would deprive the unsuccessful party of the right of appeal which is an important safeguard against error.   The second is that, at present constituted, this Court would lack the contribution of a Samoan judge, versed in the culture and traditions of Samoan society.    That is to be avoided in such a case.  The third is that until the eve of this hearing no notice had been given to the Attorney-General that the point was to be argued.   The role of the Attorney, who carries major responsibility for the rule of law in Samoa, includes protection of the Constitution.  We consider it advisable in such cases for the Attorney to be served with the proceedings in order to be able to decide whether the public interest requires law officer participation.
10.	We therefore direct that the issue be referred back to the Supreme Court for its consideration.
The third issues, the adoption order in respect of Aneti, Mercy and Peter Junior and it later discharged.
11.	Aneti, Mercy and Peter Junior were adopted under New Zealand law by New Zealand court order of 16 March 1993.    Twelve years later, on 31 May 2005, the same court discharged the order.  Peter’s death occurred in the meantime, on 12 February 1996. 
12.	The Infants Ordinance 1961 of Samoa states:
10. Effect of adoption order – 
(1)	[An] order of adoption shall confer the name of the adopting parent on the adopted infant with such proper or Christian name as the Court may fix and the adopted infant for all purposes civil and criminal and as regards all legal and equitable liabilities, rights, benefits, privileges, and consequences of the natural relation of parent and child shall be deemed in law to be the child born in lawful wedlock of the adopting parent: PROVIDED THAT such adopted infant shall not by such adoption: 
(a) 	Acquire any right, title, or interest in any property which would devolve on any issue of the adopting parent by virtue of any deed, will, or instrument prior to the date of such order unless it is expressly so stated in such deed, will, or instrument; nor
 (b)	Be entitled to take property expressly limited to the heirs of the body of the adopting parent nor property from the lineal or collateral kindred of such parent by right of representation; nor
 (c)	Acquire any property vested or to become vested in any issue of lawful wedlock of the adopting parent in the case of the intestacy of such last mentioned issue or otherwise than directly through such adopting parent. 
(2)	Where such order of adoption has been made the adopting parent shall for all purposes civil, criminal, or otherwise be deemed in law to be the parent of such adopted infant and be subject to all liabilities affecting such infant as if such infant had been born to such adopting parents in lawful wedlock and such order of adoption shall thereby terminate all the rights and legal responsibilities and incidents existing between the infant and his or her natural parents except the right of the infant to take property as heir or next of kin of his natural parents directly or by right of representation. 
13.	There is a conflict of laws point: what is the effect of the New Zealand adoption and its discharge on Aneti, Mercy and Peter Junior under Samoan law?  Does The Infants Ordinance 1961 apply to them?
14.	If yes, the last and emphasised provision, which we have emphasised and repeat, requires interpretation. :
such order of adoption shall thereby terminate all the rights and legal responsibilities and incidents existing between the infant and his or her natural parents except the right of the infant to take property as heir or next of kin of his natural parents directly or by right of representation
 If the Samoan Ordinance applies, the emphasised provision could readily mean that for purposes of succession, even though adopted, Aneti, Mercy and Peter Junior were relevantly children of Peter at the time of his death (in the event that if illegitimacy becomes irrelevant because of Article 15).  But the learned Chief Justice held the provision applies only to children who, before adoption, were legitimate.   
15.	Since the issue is closely linked to that of legitimacy, we refer back to the Supreme Court both that issue and the question whether, if rights of Aneti, Mercy and Peter Junior were lost by reason of the adoption, the order cancelling the adoption order did or did not operate retrospectively so as to restore such rights. 
The fourth issue:  the claim against Mr Fruean
16.	The Chief Justice found that Mr Fruean was a bona fide purchaser for value without notice of the Vaimea property which was sold to him by the Public Trustee as administrator of Peter’s estate.  He declined leave to appeal to this court.
17.	We do not doubt that as Peter’s de facto wife for over quarter of a century Vaoita would in equity have as against him a proprietary interest in the property, which might have been protected by a caveat against the title.    Her problem is that there is simply no evidence that Mr Fruean was, or had reason to be, aware of her rights.
18.	Vaoita deposed she had been advised that the sale by the Public Trustee to Mr Fruean on behalf of Peter’s estate, in which Makerita and Alice were the beneficiaries, was fraudulent and that “it matters not that [Mr Fruean] might have been an innocent party.”  It seems that the case was run on that basis on behalf of Vaoita, Aneti, Mercy and Peter Junior.   But if such advice concerning Mr Fruean’s position was given, it was incorrect.
19.	The Chief Justice accepted Mr Fruean was a bona fide purchaser for value without notice of Vaoita’s interest in the property.  He found that Mr Fruean dealt with the Public Trustee, who told him that Makerita and Alice were the beneficiaries of Peter’s estate.   Mr Fruean’s affidavit said:
4 The [Public Trustee] identified [Makerita and Alice] as the only surviving legitimate heirs of [Peter’s estate]... This was relayed to ...Alice Stowers by the [Public Trustee’s] letter dated 30th March 2005.
 ...
10 That upon completion of registration of my Deed of conveyance confirming my title over the [Vaimea] property I discovered  that one Vaiota Vili was the remaining occupant of my said land together with her family [Makerita and Alice] having recently vacated the [property] in order to make way for its sale.
	By the letter of 30 March 2005 the Public Trustee advised Alice “...our administration work is near completion with the [Vaimea] property to be conveyed to yourself (2/3rd share) and Makerita Stowers (1/3rd share)... as tenants in common in equal shares.”
20.	Mr Fruean was not cross-examined on his affidavit.  There was thus no basis to submit that he was unaware of any claim by Vaoita.
21.	We have noted that the Chief Justice gave judgment on the basis that there was a single house on the property.    He found:
32 Not only were [Vaoita, Mercy and his family] living on the land at the relevant time but also [Makerita and Alice].  In fact they were living in the same house on the land.
We have considered whether the admitted fact they were living in separate two separate houses makes any difference but are satisfied it does not.  Even if Mr Fruean knew there was another family living in the other house, there is simply nothing to gainsay what the Public Trustee had represented and Mr Fruean’s unchallenged denial.  
22.	We therefore dismiss the appeal by Vaoita, Aneti, Mercy and Peter Junior against the decision in favour of Mr Fruean.  Mr Fruean is entitled against them to costs which we fix at $3000.
The fifth issue:  the appeal by Vaoita, Aneti, Mercy and Peter Junior against the $15,000 damages award
23.	The statement of claim by Vaoita, Aneti, Mercy and Peter Junior pleaded against Makerita and Alice that Vaoita, as the common law wife of Peter, and also the children, were entitled to “the equity or part of it in the land” on which she had lived for so long both before and after Peter’s death. 
24.	The decision of the Chief Justice turned, on the basis of counsel’s submissions, on principles of unjust enrichment.  But it is strikingly clear that as against Makerita and Alice, who unlike Mr Fruean knew all the relevant facts, Vaoita’s equitable claim was much stronger than was recognised at trial.  Had her claim in equity been against Peter for a share in the property, after an apparently happy relationship of such duration it must have resulted in a figure much greater than 7 ½ % percent of the value of the property.  Such claim is available against Peter’s administrator and those who take his interest otherwise than as a bona fide purchaser for value without notice, such as Mr Fruean.
25.	Justice demands that, having been deprived of such right by conduct of which Makerita and Alice took the benefit, Vaoita should now be permitted to advance that claim.   Since other aspects of the case are to be referred back to the Supreme Court we are satisfied that this aspect should be treated similarly.
Judgment of the Court
26.	We order:
(1)	The appeal by Vaoita, Aneti, Mercy and Peter Junior against the decision of the Supreme Court in favour of Mr Fruean is dismissed with costs of $3000.
(2)	The appeal by Vaoita, Aneti, Mercy and Peter Junior against the decision of the Supreme Court in favour of the Public Trustee and Makerita and Alice is allowed to permit argument on the following issues:
(i)	Whether by Article 15 of the Constitution of Samoa Vaoita’s children, who would be illegitimate in terms of the statute law and existing judicial authority, are to be regarded in law as legitimate;
(ii)	as to the consequences for Aneti, Mercy and Peter of the order of the New Zealand Family Court for their adoption by a New Zealand couple which was later set aside;
(iii)	as to the rights of Vaoita as against the Public Trustee and Makerita and Alice in respect of her claim to compensation for loss of an equitable interest in the Vaimea property as a result of its sale to Mr Fruean.
(3)	Costs in this court as among Vaoita, Aneti, Mercy and Peter Junior, and Makerita, Alice and the Public Trustee are to be fixed by the Supreme Court in the light of its decision.

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Honourable Justice Baragwanath

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Honourable Justice Fisher

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Honourable Justice Galbraith