Public Trustee v Setanisilao [2020] WSCA 4 (13 August 2020)

IN THE COURT OF APPEAL OF SAMOA
The Public Trustee v Setanisilao & Anor [2020] WSCA 4

Case name:	The Public Trustee v Setanisilao & Anor
Citation:	[2020] WSCA 4
Decision date:	13 August 2020
Parties:	THE PUBLIC TRUSTEE (Appellant) and FILIPO SETANISILAO & ELISAPETA TELESIA LIAUMUKAU (Respondents)
Hearing date(s):	05 August 2020
File number(s):	CA06/20
Jurisdiction:	CIVIL
Place of delivery:	Court of Appeal of Samoa, Mulinuu
Judge(s):	Honourable Chief Justice Perese Honourable Justice Blanchard Honourable Justice Harrison
On appeal from:	Supreme Court of Samoa, Mulinuu
Order:	The appeal by the Public Trustee is dismissed. The Public Trustee is ordered to pay costs to Filipo and Elisapeta of $5,000 together with all reasonable disbursements. He is fortunate that he is not the subject of an order for indemnity costs. His prolonged refusal to obey lawful orders of the Supreme Court was discreditable. His justification had no legal foundation. His appeal was similarly misconceived.
Representation:	P. Fepuleai for Appellant S Ponifasio for Respondents
Catchwords:
Words and phrases:	appeal against judgment – estate (land) – claim time barred – land ownership.
Legislation cited:	Limitation Act 1975 ss. 9(2); 10(1); Public Trust Act 1975 s. 51; 54; Supreme Court (Civil Procedure Rules) 1980 r. 169; Trustee Act 1975 s. 57.
Cases cited:	Public Trustee v Silao [2010] WSSC 26 (27 May 2010).
Summary of decision:

CA06/20

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

BETWEEN:

THE PUBLIC TRUSTEE a corporation sole pursuant to the Public Trustee Office 1975

Appellant

A N D:

FILIPO SETANISILAO, Retiree and ELISAPETA TELESIA LIAUMUKAU, Retiree, both of Vailima, Samoa

Respondents

Court: Honourable Chief Justice Perese
Honourable Justice Blanchard
Honourable Justice Harrison

Hearing: 05 August 2020

Counsel: P. Fepuleai for Appellant
S Ponifasio for Respondents

Judgment: 13 August 2020

JUDGMENT OF THE COURT

Introduction

1. This appeal by the Public Trustee against a judgment of Justice Tuala-Warren has been generated solely by his continual disobedience of an order made by the Supreme Court more than 10 years ago.

Facts

2. The facts relevant to the underlying dispute in this litigation have a long history. But it is only necessary to summarise and refer to a selection of them.
3. Clement Felix Solia was the original owner of eight acres of land in Vailima. In 1938 he invited the parents of the respondents (Filipo and Elisapeta), who are brother and sister, to live with him on the land. The siblings were born on the land in 1950 and 1945 respectively and have since continued to live there.
4. Clement died on 25 July 1955. He was survived by his two daughters, Ana and Agnes. The Public Trustee was appointed as the trustee of Clement’s estate. On 3 August 1956 he transferred the land to Clement’s daughters as tenants in common in equal shares.
5. Ana died in November 1964 and Agnes died in 1989, and the Public Trustee was appointed as administrator of their estates in 1974 and 2005 respectively.

Supreme Court Orders

6. In 2007 the Public Trustee applied to the Supreme Court for orders evicting Filipo and Elisapeta from the land and granting possession. In response both counterclaimed for vesting orders on the basis of a right of adverse possession.
7. In May 2010 Chief Justice Sapolu delivered a comprehensive judgment following a hearing earlier that year: (a) dismissing the Public Trustee’s application for an order removing Filipo and Elisapeta from the land; (b) granting their counterclaim for an order for possessory title by way of adverse possession; (c) ordering the Public Trustee to convey the land to Filipo and Elisapeta within 30 days (the 2010 transfer order); and (d) awarding costs to Filipo and Elisapeta, later fixed at $14,000.^[1]
8. The Chief Justice found against the Public Trustee because he was satisfied the claim was time barred.^[2] The 12 year limitation period for bringing a claim for recovery of the land ran from the date when title was transferred to Ana and Agnes on 3 August 1956. As a result, the sisters legal ownership of the land was adversely dispossessed by Filipo and Elisapeta from 3 August 1968.

Subsequent Events

9. The Public Trustee did not appeal the judgment of the Chief Justice or apply to vary the 2010 transfer order. Nevertheless, he refused to convey the land to Filipo or Elisapeta or to pay costs. His legal justification is that he is owed fees now totalling $110,359.65 for commission and administration costs charged against the estates of Ana and Agnes^[3]. He claims that this debt is in effect a first charge against the title to the land; and that it has priority over the interests vested in Filipo and Elisapeta pursuant to the 2010 transfer order.
10. Filipo and Elisapeta sought to bring this dispute to a head. In April 2017 they applied for an order for examination of the Public Trustee for his continuous failure to comply with the 2010 transfer order^[4]. In a judgment, delivered on 10 March 2020 following a defended hearing, Justice Tuala-Warren directed the Public Trustee to transfer the land to Filipo and Elisapeta within 60 days and to bear all the costs of transfer. She also referred to the remedies available to Filipo and Elisapeta of (a) contempt for the Public Trustee’s continued disobedience of the 2010 transfer order and (b) issuing a judgment summons to enforce the costs award.

Appeal

11. The Public Trustee appeals against Tuala-Warren J’s judgment. In support Mr. Fepuleai maintains the Public Trustee’s argument that he is entitled to payment of his outstanding fees in the estates of Ana and Agnes before complying with the 2010 transfer order. Mr. Fepuleai accepts that the Public Trustee should have raised this issue in the originating proceeding in the Supreme Court before the Chief Justice gave judgment. While his concession is appropriate, we record that the Public Trustee’s appeal must fail at the threshold constitutional hurdle.
12. The Public Trustee was subject to an unconditional order made by the Supreme Court to transfer title to the land to Filipo and Elisapeta. He has never challenged its validity and lawfulness. No authority is required for the proposition that the Public Trustee is not above the law, and like all other natural or corporate personalities he must comply with an order made by a Court of competent jurisdiction. His mistaken view of his legal rights is no justification for disobedience.
13. The Public Trustee’s only lawful avenue for relief from discharging the 2010 transfer order would have been either to appeal the Chief Justice’s judgment or make a timely application to vary the order entitling him to claim his outstanding fees and commissions. But he would certainly have failed.
14. We agree with Ms. Ponifasio’s concise submission for Filipo and Elisapeta. The Public Trustee’s statutory right to claim for his charges is limited to the property of the deceased person whose estate he is administering. However, the effect of the Chief Justice’s finding was that Ana and Agnes only held bare legal title from the time the limitation period expired on 3 August 1968. On that date the sisters existing beneficial interests were dispossessed or displaced by Filipo and Elisapeta, for whose exclusive benefit they held title to the land thereafter. Filipo and Elisapeta were the beneficial owners of the property, not Ana and Agnes, throughout the period of the Public Trustee’s administration of the sisters’ estates. In terms of the statutory requirement, the land was not property owned by the estates of either sister, and the Public Trustee had no right to claim a first or any charge over it.
15. Mr. Fepuleai advised that by agreement the Public Trustee has now handed a signed transfer of title to counsel for Filipo and Elisapeta for registration subject to part of the land being mortgaged back to the Public Trustee as security for costs pending determination of his appeal. In our view the transfer should be registered and mortgage discharged immediately so that Filipo and Elisapeta acquire title free of any encumbrance to the Public Trustee. He should also attend to immediate payment of the 2010 costs award together with the award made on this appeal.

Result

16. The appeal by the Public Trustee is dismissed.
17. The Public Trustee is ordered to pay costs to Filipo and Elisapeta of $5,000 together with all reasonable disbursements. He is fortunate that he is not the subject of an order for indemnity costs. His prolonged refusal to obey lawful orders of the Supreme Court was discreditable. His justification had no legal foundation. His appeal was similarly misconceived.
    

HONOURABLE CHIEF JUSTICE PERESE
HONOURABLE JUSTICE BLANCHARD
HONOURABLE JUSTICE HARRISON

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^[1] Public Trustee v Silao [2010] WSSC 26 (27 May 2010)

^[2] Sections 9(2) and 10 (1) of the Limitation Act 1975

^[3] Sections 51 and 54 of the Public Trust Act 1975, section 57 of the Trustee Act 1975

^[4] Rule 169 of the Supreme Court (Civil Procedure Rules) 1980