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Drake v Attorney General [2021] WSCA 14 (16 December 2021)

IN THE COURT OF APPEAL OF SAMOA
Drake v Attorney General; Gray v Drake & Ors [2021] WSCA 14 (16 December 2021)


Case name:
Drake v Attorney General
Gray v Drake & Ors


Citation:


Decision date:
16 December 2021


Parties:
RUBY DRAKE (Appellant) v ATTORNEY GENERAL (Respondent); CLARA AITELEA GRAY v RUBY DRAKE (First Respondent); ATTORNEY GENERAL (Second Respondent); SAMOA BREWERIES LIMITED (Third Respondent) and SAMOA STATIONERY AND BOOKS LIMITED (Fourth Respondent)


Hearing date(s):
08 December 2021


File number(s):
CA14/20
CA13/20


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:
We allow the appeals and set aside the orders made by Nelson J. The Land Registrar must re-register the caveat against the title. The appellants are entitled to their costs in the Supreme Court to be taxed if not agreed upon and to costs in this Court of $5,000 each, all such costs to be payable by the respondent Ministry.


Representation:
J Goodall and K Kruse for Ruby Drake in both appeals
L.O Woodroffe for Clara Gray in CA13/20
S Ponifasio for the Attorney General in both appeals
No appearance for the Third and Fourth Respondents


Catchwords:
Land dispute - removal of caveat – notice by Registrar to remove caveat – lapse of caveat


Words and phrases:
“removal of caveat from title to land”


Legislation cited:
Land Titles Registration Act 2008, ss. 7; 54; 54(2); 55; 55(1); 55(1)(b); 55(3); 57;
Supreme Court (Civil Procedure) Rules 1980, rr. 140; 141.


Cases cited:
Eng Mee Yong v Letchumanan [1980] AC 331;
WEA Records Limited v Visions Channel 4 Limited [1983] 1 WLR 721 (CA).


Summary of decision:

IN THE SAMOA COURT OF APPEAL
HELD AT MULINUU


CA14/20


BETWEEN:


RUBY DRAKE


Appellant


A N D:


ATTORNEY GENERAL for and on behalf of the MINISTRY OF NATURAL RESOURCES AND ENVIRONMENT


Respondent


CA13/20


BETWEEN:


CLARA AITELEA GRAY as Administrator of the Estate of KERITA MARIA KOLOKITA PUNE.


Appellant


A N D:


RUBY DRAKE


First Respondent


A N D:


ATTORNEY GENERAL for and on behalf of the MINISTRY OF NATURAL RESOURCES AND ENVIRONMENT


Second Respondent


A N D:


SAMOA BREWERIES LIMITED


Third Respondent


A N D:


SAMOA STATIONERY AND BOOKS LIMITED


Fourth Respondent


Coram: Honourable Chief Justice Perese

Honourable Justice Blanchard
Honourable Justice Harrison


Counsel: J Goodall and K Kruse for Ruby Drake in both appeals

L O Woodroffe for Clara Gray in CA13/20
S Ponifasio for Attorney General in both appeals

No appearance for Third and Fourth Respondents


Hearing: 08 December 2021


Judgment: 16 December 2021


JUDGMENT OF THE COURT

  1. The issue on this appeal is whether the Registrar of Land in the Ministry of Natural Resources and Environment acted lawfully under the Land Titles Registration Act 2008 in removing a caveat from the title to a parcel of land in downtown Apia. It is one of a number of issues in contention between persons with interests in or claims to the land.

Background events

  1. An account of some of the tangled history of the matter is needed by way of background before we describe the events directly concerning the removal of the caveat. Molio’o Vaeluaga received a conveyance of the land as a gift from his elderly father, Leilua, in 1995, not long before the father died. It was alleged that this gift was procured by an exercise of undue influence by the son on the father. Proceedings were brought by Molio’o’s sister, Kerita Pune, and by Elsa Vaeluaga, the administrator of the estate of Molio’o’s brother challenging the validity of the conveyance. They lodged a caveat (837X) against the title to the land in May 2002 “claiming estate or interest as beneficiaries pursuant to the intentions of the late Vaeluaga Leilua commonly known among the family affecting the lands”.
  2. This case went to trial before the late Chief Justice Sapolu in 2003. Molio’o died not long after the trial. Most regrettably, the Chief Justice failed to deliver any judgment until 15 July 2014 and no reasons for judgment until 29 August 2016 and then only after pressure from this Court. The Chief Justice found that undue influence had been proved against Molio’o. There was no appeal against this decision.
  3. Kerita Pune has unfortunately died since the events with which this appeal is concerned. The appellant in CA13/20, Mrs Gray, is the administrator of Kerita Pune’s estate. The appellant in CA14/20, Ruby Drake, is the former solicitor of Ms Pune and Elsa Vaeluaga whose law firm, Drake & Co, lodged the caveat. Both appeals are against a judgment of Nelson J delivered on 20 July 2020.

1

The removal of the caveat

  1. Although Molio’o had died, the title to the land remained in his name. It was subject to a mortgage to Samoa Breweries Limited to secure advances made on a revolving credit account established with Samoa Breweries by Vailima Distributors Limited, a trading company associated with Molio’o, and after his death with his children. The trading account eventually fell into arrears and Samoa Breweries wished to exercise its power of sale under the mortgage. It agreed to sell the land to Samoa Stationery and Books Limited, a company owned by the wife of the then Attorney General, Mr Ming Leung Wai. But the caveat would prevent that transaction from being completed by registration of an instrument of transfer.
  2. The solicitor for Samoa Breweries, Mr Herman Kruse, therefore wrote to the Registrar of Land on 12 December 2013. The letter said that Samoa Breweries had foreclosed on Vailima Distributors and that the caveat was preventing settlement of an agreement for sale and purchase of the land. The letter concluded:
  3. On 23 December 2013, the Assistant Chief Executive Officer of the Land Management Office of the Ministry, wrote on behalf of the Registrar to Drake & Co whose office had been appointed in the caveat as the place where notices relating to it could be served. The letter said:
  4. Drake & Co received the letter on 24 December. The parties remain at odds over why Mr Leung Wai’s name was given in the letter as the person seeking removal of the caveat. The Registrar says it was simply a mistake.
  5. On 24 January 2014 Mrs Drake wrote to the Deputy Registrar of the Supreme Court saying that a letter had been received from the Land Registry of an application to remove her client’s caveat. She enclosed a letter to the Court from Mrs Pune dated 22 January. In that letter Mrs Pune said she was thereby serving a notification as caveator and requesting an order from the Court for the caveat to remain on the title and for an extension of time pertaining to the caveat.
  6. Mrs Drake received an initial response to her letter not from the Court but from the Land Management Division, advising her that the 21 day period under section 55 “will be finished on Monday, 3rd of February 2014”. There has never been an explanation of how this time was calculated but in an affidavit the writer of that letter said it was an error and that the time actually expired on 31 January.
  7. In any event, it was not until 4 February that the Court acted. On that day Chief Justice Sapolu, expressly treating Mrs Pune’s letter of 22 January as an application, ordered that the caveat was extended “until further Order”.
  8. On 7 February 2014 that Order was served on the Land Registrar and on 21 February the Registrar of the Court wrote to the Land Registrar referring to the Chief Justice’s Order and saying:
  9. The Registrar of Land chose, however, to remove the caveat from the title on 24 February, thus enabling a transfer from the mortgagee to Samoa Stationery to be registered on that day. On 25 February the Registrar of Land wrote to the Court drawing attention to section 55. The letter contains an explanation for the belief that the time period expired on 31 January (“this is counting 21 days excluding weekends, public holidays and commission holidays”). We are unaware of the meaning of “commission holidays” but find it unnecessary to pursue that matter.
  10. More importantly, the letter said that “since the court order provided was not within 21 days as provided by the Act, the court order cannot have effect” and that the Registrar was statutorily bound to remove the caveat.
  11. On 16 May 2014 the Land Registrar brought proceedings seeking a discharge of the Chief Justice’s order. On 14 July 2014 Mrs Pune and Ms Vaeluaga commenced proceedings against Mrs Drake (for negligence in not preventing the removal of the caveat) and Samoa Breweries and Samoa Stationery (claiming that their rights claimed under the caveat in respect of the property remained enforceable despite the registration of the transfer). Nelson J heard those proceedings together in relation to the question of the lawfulness of the removal of the caveat by the Land Registrar and the effect of Chief Justice Sapolu’s Order.
  12. The caveat was, for reasons not explained to us, restored to the register on 15 July 2014 and then removed again after the judgment below to which we now turn, but Samoa Stationery remains as registered proprietor.

Supreme Court judgment

  1. After giving an account of the events leading to the removal of the caveat, Nelson J commented that the caveat had “lapsed” on 31 January 2014 “or possibly earlier on 14 January”. The Judge analysed section 55 saying that he was satisfied that a “caveatee” thereunder was “one against whose interest the caveat is entered or filed”. That would include a mortgagee of the land as the existence of the caveat will affect the mortgagee’s right to extinguish the equity of redemption “and his/her ability to step into the shoes of the caveatee and exercise rights pursuant to the registered mortgage including to convey or otherwise dispose of or deal with the property”.
  2. But, the Judge said, there were a number of reasons why the Chief Justice’s order of 14 February 2014 should be discharged. First, Nelson J said that the application by the caveator should have been by a summons as required by section 55(3) and duly served on the caveatee. A letter did not constitute a summons and Samoa Breweries and the estate of the caveatee had not been served or otherwise advised of the application to extend the caveat so that their right to natural justice and fair trial rights under Article 9(1) of the Constitution had been affected.
  3. Nelson J’s second reason for discharging the Court’s order was that it was, in his view, plainly made out of time. Whilst section 55 was silent on how the 21 days would be computed, the ordinary and natural meaning was that this included public holidays and weekends except where the prescribed time expired or fell on a holiday: s 23(a) of the Acts Interpretation Act 1974 which was in force at the time. Had Parliament intended otherwise it could have used the phrase “21 working days”. The Judge concluded that the 21 day time limit expired on Tuesday 14 January 2014 which was not a holiday.
  4. The Judge said that the caveat had lapsed as of that date and the Registrar was entitled to remove it from the register under section 55(1)(b). He did not accept that the notice to the caveator “lacked standing” because the wrong party was cited in it by the Registrar. It had been the mortgagee who had requested the removal of the caveat. Mrs Drake’s correspondence with the court indicated that the plaintiffs “well understood the crux of the matter as conveyed by the Registrar”.
  5. There was accordingly, Nelson J held, no caveat for the Chief Justice to extend and his Order was null and void ab initio. The motion to discharge it was granted.
  6. From that judgment both Mrs Drake and Mrs Gray appeal.

The caveat provisions

  1. The Land Titles Registration Act provides for three methods of obtaining the removal of a caveat from a title:

Submissions for appellant

  1. Mr Goodall, for Mrs Drake, in his excellent submissions accepted that the 21day period expired on 14 January 2014. He submitted, however, that the Registrar of Land had been served with the Court Order and should not therefore have removed the caveat from the register, but, rather, should have maintained it and filed an application for directions or an application to set the Order aside under rr. 140 &141 of the Supreme Court (Civil Procedure) Rules 1980. That jurisdiction was also available to a non-party as an intervener or under the Court’s inherent jurisdiction: WEA Records Limited v Visions Channel 4 Limited [1983] 1WLR 721 (CA) at 727. Section 55 required the Registrar to remove a caveat unless before the expiry of 21 days the Registrar was served with an Order extending time, but in this case the Registrar had an unequivocal Court Order requiring the caveat to be maintained. The Registrar had full immunity from claims while acting in good faith (section 7 Land Titles Registration Act) and could not have been criticised if the status quo was maintained in the face of the Court Order.
  2. Counsel submitted that the application to discharge the Chief Justice’s Order should have failed because in current circumstances the Order is spent. A court will not, unless there are exceptional circumstances, rescind spent interim orders. Here the caveat had long been removed and title transferred to a third party.
  3. More substantively, Mr Goodall argued that the Chief Justice had acted within jurisdiction in making the Order extending the caveat because section 55 had not had any proper application in this case. That was because Samoa Breweries was not the “caveatee” or the caveatee’s agent. Only the registered proprietor was the caveatee. Had a broader category of persons had been intended, section 55(1) would have used the same language as section 54(2) namely, “any other person having any registered estate or interest protected by the caveat”. That section was available to persons other than the registered proprietor. It was preferable to restrict the persons who could trigger section 55(1) because it puts the caveator to potentially significant cost to preserve the caveat.
  4. In a situation in which neither section 55 nor section 57 could apply (no instrument had been presented for registration to trigger section 57), Mr Goodall said that the Court had an inherent jurisdiction to maintain the caveat by means of an injunction preventing its removal. That was what Chief Justice Sapolu had been doing in circumstances where the caveators’ claim to an interest in the property had been tried and was awaiting judgment. Mrs Pune’s application seeking extension of the caveat was made in that proceeding.
  5. However, Mr Goodall said that if section 55(1) had in fact applied, the Land Registrar’s notice was inadequate because it did not inform the caveator of an application by an actual caveatee (Mr Leung Wai was not even arguably a caveatee) or of the existence of the 21 day period, the consequence of failure to serve an Order of the Court within that period and the address for service of the caveatee. The caveator had been mis-advised about the identity of the person who had made the section 55 application. If section 55 applied, the order was still within jurisdiction because subsection (3) contains no express time restriction within which the Court has to make its Order. The caveat had not lapsed by operation of law. It had to be removed by the Registrar and was operative until removed. So if section 55 applied, Mr Goodall said there was still a caveat to extend.
  6. Finally, counsel said that there had been no breach of natural justice when an Order was made ex parte in urgency. Service was not mandatory and affected parties could apply to set the caveat aside under section 54 or utilise section 57.
  7. Mrs Woodroffe, for Mrs Gray, had filed extensive written submissions but was content to support Mr Goodall’s submissions.

Submissions for respondent

  1. Mrs Ponifasio, for the Attorney General, sought to uphold Nelson J’s decision. She realistically accepted that the Registrar’s notice could only have been based on section 55 despite reference to section 57 in Mr Kruse’s letter of 12 December 2013. Counsel advised the Court that the Registrar has no record of the presentation of any instrument prior to the sending of the Registrar’s notice on 23 December.
  2. Mrs Ponifasio said that the Registrar had decided that the application was best regarded as made under section 55 and that the failure in the Registrar’s notice to correctly specify who had made the application should not be fatal. Mrs Drake had raised no such objection on being notified of the application or when she approached the Court. There had been no summons filed with the Court as required by section 55(3) whose requirements were intended to provide evidential information to the Court for its assessment. The Privy Council in Eng Mee Yong v Letchumanan [1980] AC 331 had likened the procedure for stopping removal of a caveat to an application for an interim injunction. A similar procedure should be required. In the absence of a summons, the caveator could not have satisfied the Court that the claim to an interest in the property raised a serious question to be tried nor established on balance of convenience that it would be better to maintain the caveat until Chief Justice Sapolu’s reserved decision was eventually delivered. It was submitted that the Registrar was obliged by law to remove the caveat once the 21 day period had elapsed. The date on which he did so was not material.

The caveat provisions

  1. We have set out the relevant provisions in paragraph [23]. There are three ways in which it is possible to achieve removal or lapsing of a caveat from a title to registered land in Samoa. Section 54 enables a person with a registered estate or interest in land affected by a caveat to apply to the Court for its removal. This is the most formal of the three procedures. It is seemingly the only one that prevents a caveator from registering a second caveat after a removal without a Court Order permitting that to be done.
  2. Section 55 allows a “caveatee or his agent” to apply in writing to the Registrar to remove a caveat and requires the Registrar to give 21 days’ notice in writing to the caveator at the address specified in the caveat requiring that the caveat be withdrawn. The caveatee’s application has to contain an address in Samoa at which notices and proceedings may be served: s 55(2). It must follow that the Registrar’s notice to the caveator, as well as telling the caveator who has made the application to the Land Registrar, has to contain advice as to that address, which the caveator also needs to know in order to take action to protect the caveat. If the Registrar’s notice is properly framed and served on the caveator, then unless before the expiry of the 21 day period the Registrar is served with an Order of the Court extending the 21 days, the Registrar must (“shall”) remove the caveat from the register. This requires an administrative action by the Registrar. The caveat does not simply lapse on expiry of the 21 days. It remains an effective block on the title until the Registrar acts to remove it.
  3. The caveator can apply by summons to the Supreme Court for an Order extending the time beyond the 21 days. The summons is to be served at the nominated address of the caveatee. Upon proof of service and such other evidence as it may require, the Court can within the 21 day period make an extension Order ex parte or otherwise as it thinks fit. Such an Order needs also to be served within that period. Although Section 55(1)(b) does not directly say that the application to the Court must be made within the 21 days, that has to be so because the Court’s Order has to be served on the Land Registrar within that time. If that is not timeously accomplished the Land Registrar is obliged to remove the caveat. As we will explain, the processes followed in this case did not comply with the requirements of section 55 in several respects.
  4. The third method for removal of a caveat is under section 57 and requires the making of an application for the registration of an instrument affecting the land, estate or interest, ie, an instrument the registration of which is forbidden by the caveat. Once such an instrument is presented for registration, the Registrar must give 14 days’ notice to the caveator of that event and unless the caveator within that 14 day period obtains from the Court “an order to the contrary” and gives notice of making of that Order to the Land Registrar, the caveat is deemed to have lapsed. So under section 57, unlike under section 55, no removal action by the Registrar is needed after the specified period. The caveat simply ceases to be effective on the title.
  5. We agree with Nelson J’s assessment that the periods specified in sections 55 and 57 do count every day, including weekends and holidays, excluding only the last day if it falls on a weekend or a holiday. That presents rather obvious risks over the Christmas and New Year period and may seem to require legislative attention to avoid potential injustices.

This case

  1. Having described the intended operation of the sections we can now turn to what happened in this case.
  2. Although the letter written on behalf of Samoa Breweries invoked section 57 expressly, it plainly could not meet the requirements of that section because no instrument had actually been presented for registration against the title to the subject land. But, instead of pointing that out to Mr Kruse and rejecting his application, the Assistant CEO seems to have made a decision – unexplained in her affidavit – to treat the letter as an application under section 55 instead. It is questionable whether she could do this without a written approval from the applicant, but we place no emphasis on this point for it is abundantly clear the letter that she wrote to Mrs Drake on 23 December was not a valid Registrar’s notice under section 55. It named as applicant Mr Leung Wai, who was certainly not a caveatee as he had no estate or interest in the land, even if, as we are inclined to accept, the wide view approved by Nelson J should be taken on the meaning of “caveatee or his agent”. So the notice did not name the applicant caveatee. Furthermore, it did not contain the important address for service of notices and proceedings on the caveatee, a matter which is crucial when the caveator must act within a short time frame. The letter itself quoted from section 55(2) what was required of the caveatee in this respect but failed to comply with the obvious need to pass on that information to the caveator, who could not simply be assumed to know the caveatee’s address for service of proceedings, even if the caveatee had been named.
  3. As the notice from the Land Registry was non-compliant with section 55, it could not start the 21 day time period running. Mrs Drake had no need, as a matter of law, to take any action in response to such an invalid notice, though her approach to the Court was a prudent step to take in the circumstances. Furthermore, the Land Registrar’s invalid notice could never in law justify removal of the caveat from the title to the land. So the action taken by the Registrar on 24 February 2014 in removing it, and thus allowing registration of the transfer to Samoa Stationery, was unlawful. The caveat should have remained and prevented that registration.
  4. We need not therefore traverse the intervening events but it is certainly arguable, as Mr Goodall urged, that because the section 55 notice was defective the Court did have an inherent jurisdiction to take steps, in response to the urgent informal application by Mrs Pune, to protect the caveat by ordering an extension of time, and thus, it might have thought, ensuring the maintenance of the caveat on the title. Unfortunately, the Registrar unwisely took the view, despite a warning from the Court, that the law required him to disobey the Court’s order. Faced with a Court Order, the Land Registrar should have sought a direction from the Court.

Orders

  1. For these reasons, we allow the appeals and set aside the orders made by Nelson J. The Land Registrar must re-register the caveat against the title. The appellants are entitled to their costs in the Supreme Court to be taxed if not agreed upon and to costs in this Court of $5,000 each, all such costs to be payable by the respondent Ministry.

HONOURABLE CHIEF JUSTICE PERESE
HONOURABLE JUSTICE BLANCHARD
HONOURABLE JUSTICE HARRISON

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