Siaosi v Ainuu [2023] WSCA 3 (18 July 2023)

IN THE COURT OF APPEAL OF SAMOA
Siaosi & Ors v Ainuu & Anor [2023] WSCA 3 (18 July 2023)

Case name:	Siaosi & Ors v Ainuu & Anor
Citation:	[2023] WSCA 3
Decision date:	18 July 2023
Parties:	AFUVAI NORRIS SIAOSI, MERESAINI SIAOSI-LAULUA, LISI SIAOSI & PA’ILAGI POULAVA (Appellants) v FA’AOLESA KATOPAU T. AINUU & TE’O FAITELE AFAMASAGA (Respondents).
Hearing date(s):	11 July 2023
File number(s):	CA 01/21
Jurisdiction:	CIVIL
Place of delivery:	Court of Appeal of Samoa, Mulinuu
Judge(s):	Honourable Justice Asher Honourable Justice Young Honourable Justice Roma
On appeal from:	Supreme Court of Samoa, Mulinuu
Order:	The appeal is allowed. The proceedings are remitted back to the Supreme Court for a rehearing, with that rehearing to take place if and when letters of administration are granted for the estates of Toga and Tatapau. The penultimate section at paragraph [60] of the judgment under appeal, and any related aspects of that judgment that can be construed as stating that the Respondents should or will succeed at any subsequent hearing, are set aside. The decision at paragraph [63] of the judgment in relation to the Respondents’ counterclaim is set aside, as is paragraph [66] of the judgment denying the counterclaim. The counterclaim remains to be determined at any rehearing. We direct that the proceedings be placed in a callover list in the Supreme Court for approximately a year’s time, in 2024. We would expect that at that hearing, progress in obtaining the letters of administration would be reviewed, and if appropriate, directions made for amending the pleadings and/or setting down a hearing. As to costs, the Appellants have been successful and costs follow the event. Costs are to be paid by the Respondents to the Appellants in the sum of WST$5000.
Representation:	A. Su’a for the Appellants S. Ainuu for the Respondents
Catchwords:	Land dispute – estate – land ownership – order for eviction – order of possession – igagato – letters of administration – right to land.
Words and phrases:
Legislation cited:
Cases cited:	Ainuu & Anor v Norris & Ors [2020] WSSC 104 (09 December 2020).
Summary of decision:

CA 01/21

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

BETWEEN:

AFUVAI NORRIS SIAOSI of Tufuiopa, Public Servant, MERESAINI SIAOSI-LAULUA of Tufuiopa, Public Servant, LISI SIAOSI, of Tufuiopa, Public Servant, PA’ILAGI POULAVA of Tufuiopa, Domestic Duties

Appellants

A N D:

FA’AOLESA KATOPAU T AINUU, of Leufisa, Solicitor and TE’O FAITELE AFAMASAGA of Leufisa, Public Servant, for and on behalf of the Estates of Fa’aolesa Katopau Ainuu, Deceased and Toga Dutchie (nee Ainuu), Deceased, Late of Apia

Respondents

Coram: Honourable Justice Asher
Honourable Justice Young
Honourable Justice Roma

Counsel: A. Su’a for the Appellants
S. Ainuu for the Respondents

Hearing: 11 July 2023

Judgment: 18 July 2023

JUDGMENT OF THE COURT

Introduction

1. This appeal concerns an estate in fee simple registered in the names of persons recorded as “Toga and Tatapau, Samoans”. The land in question is Lot 862 Plan 4346 (“the land”) called Punapuna located in Tufuiopa. The Appellant Meresaini Siaosi-Laulua in her detailed affidavit setting out the background, says that Toga and Tatapau were recorded first as owners in 1824 in Land Register Volume 2 Folio 274. It is common ground that their ownership was confirmed in 1889 by Court Grant 105, which shows the land being in their names. This is the present state of the title. There has been no change since 1889 as the generations have gone by.
2. The Respondents claim to be representatives of the estates of Toga and Tatapau. They claim to have authority to bring proceedings on behalf of the beneficiaries of the relevant estate. The Appellants, with others, occupy the land
3. One of the Respondents, Te’o Faitele Afamasaga, asserts that Tatapau’s actual name was Katopau, being Faaolesa Katopau Ainuu, whom he deposes is his great grandfather. He deposes also that Toga was Toga Dutchie (nee Ainuu) who was his great grandfather’s sister. His great grandfather’s son was his grandfather Ainuu Tasi I. He was married to Taase. Ainuu Tasi I and Taase’s children include Talele and Ainuu Tasi II. Talele is his mother. He is first cousin with the other Respondent, Faaolesa Katopau T. Ainuu.
4. He and the other Respondent have sought an order for eviction against the Appellants, their families and or agents currently living on the land, and an order of possession in their favour.
5. The Appellants, while admitting that Toga and Tatapau are shown as the registered owners of the land, put the Respondents to proof as to their connection to and relationship with those original registered owners. The Appellants deny the right of the Respondents to evict them or claim ownership in the land.
6. The Appellants have deposed in a number of affidavits that the land was in the 1950s given as igagato to their late grandmother Va’asa by Mr Afamasaga’s grandfather Ainuu Tasi I, for Va’asa and her family to occupy. This was a reward for tautua rendered by Va’asa to Ainuu Katopau. Va’asa is the grandmother of the Appellants.
7. The Appellants have also counterclaimed. They assert that when they first moved to the land in 1950 more than 90% of it was swampy and unsafe to reside in and build on. They say that in the years that followed they carried out extensive reclamation work, some of it through their own efforts, and some of it with professional help. Ultimately they created building sites. In addition to other structures, there is a sound habitable house on the land and various family graves.
8. There was a serious falling out between the Respondents and Appellants in about 2017. The close association between the two families the parties represent had ended. The estrangement has resulted in these proceedings. A similar issue between another branch of the Appellants’ family who were on the land and the Respondents has been settled.

The judgment

9. In the Supreme Court, the learned Judge stated that an application for letters of administration should have preceded the hearing.^[1] In the event of such an application the Public Trustee would gather the relevant information and determine the application. She observed that in addition to the Public Trustee considering the Respondents’ connection to Toga and Tatapau, “...a similar but much more thorough process, involving others with an interest in the land” would be undertaken.^[2]
10. She stated that if the Respondents had letters of administration, the removal of the Appellants from the land would have been unproblematic.^[3] She noted that the Appellants conceded that their authority to occupy the land was given by the Respondent Mr. Ainuu’s grandfather. Given that he was not the registered owner of the land, she observed that the Appellants’ basis of occupation of the land was “extremely tenuous”.^[4]
11. She held that she would allow a formal application for letters of administration to be filed by the Respondents, stating that:
    • “...on the evidence presented, it is more likely than not that they will be granted letters of administration, depending on others who may come forward claiming an interest in the estate of Toga and Tatapau when considering a grant of administration (section 6 Administration Act 1975). If granted, their claim to remove the defendants from the land will also be granted. However, the Plaintiffs have to follow the process of applying for administration.”^[5]
    • (emphasis added).
12. The learned Judge went on to state that it would be prudent for the Appellants to consider moving off the land. She said:
    • “[The Appellants] never had a legal right to occupy the land, and in moving forward, their authority to continue to occupy the land will rest with the administrators of the estate. From the evidence, if the [Respondents] become administrators, their position is for the [Appellants] to move off the land and remove their structures on the land. The [Appellants] could on the other hand, wait it out until administration is granted, in which case, the time granted to move off the land may be short and insufficient. It is important that are aware of the possible and likely outcome.”^[6]
13. She then went on to record that although survey issues had been raised in relation to Survey Plan 4346, they were not the subject to the proceedings and that matters should be left to the administrators of the estate once appointed. Then in relation to the counterclaim she said this:
    • “In relation to the defendants’ counterclaim, because they had no legal basis for occupying the land, they cannot then claim any improvements from the estate because the permission to occupy was not given by the registered owners. Ainuu Tasi II is not the registered owner.”^[7]
14. The orders that she made were as follows:
    • “[64] Before any orders are made by this Court in relation to the plaintiffs’ claim, the plaintiffs are invited to apply for a grant of letters of administration to administer the estate of Toga and Tatapau.
    • [65] If those letters of administration are granted by the Court, it follows that the Court will grant the application by the Plaintiffs for the Defendants to move off the land. This is unfortunate given the length of time they have occupied the land and the relationship they have had with the Plaintiffs.
    • [66] The counterclaim by the defendants is denied for the foregoing reasons.”^[8]

Our analysis

15. The normal consequence of plaintiffs not being able to prove that they are the legal owners of land in a claim for eviction or possession is that their claim will be dismissed. Often this would arise in a strike-out application. There is simply no eviction or possession cause of action available to plaintiffs who cannot prove a right to the land that they seek to possess.
16. While recognising the problem of the Respondents’ title, this is not what the Judge did here. She has not dismissed the claim, but rather kept the proceedings alive and given the Respondents a chance to get title determined in their favour, and then pick up the claim against the Appellants. While this could have been done by an adjournment, she has gone further again. She has indicated that it is more likely than not that the Respondents will obtain letters of administration and that if they do, their claim to remove the Appellants from the land “will” also be granted.
17. We can understand why the Judge, to save costs and time later-on, might have chosen to adjourn the proceedings rather than dismiss them. More questionable, however, is her additional step of indicating or perhaps directing what the outcome of a resumed hearing will be if the Respondents obtain letters of administration. In our respectful view, this was a pre-judgment that the learned Judge was not entitled to make. Her statements to this effect, which could well be regarded as directive in relation to a subsequent hearing, went too far.
18. In fact, as the learned Judge acknowledged earlier in her judgment, the process of obtaining letters of administration will be entirely different. Such a process could involve others who are not parties to this litigation but became interested in the land, making a claim that they should have letters of administration. In the present proceedings with such limited parties, it is not possible to forecast a decision in relation to the letters of administration and what that might mean for this case.
19. It was wrong for the Judge to have effectively directed that, should the Respondents get letters of administration, their claim to remove the defendants from the land would also be granted. That should be a matter left entirely open for any subsequent hearing and the evidence to be adduced at that hearing. It is perfectly possible that further facts could arise during the course of seeking letters of administration that may be relevant to the present eviction claim. Just as it should be left open for the Respondents to amend their claim, the Appellants too may wish to amend their defence of a right to occupy the land, once all the facts come out.
20. We respectfully disagree with the Judge’s observation that the Respondents’ grandfather himself not being shown to be the registered owner of the land made the Appellants claim to occupation “extremely tenuous.” The Respondents’ claim is based on the Respondents’ grandfather Ainuu Tasi I having had a right of ownership in the land, the same person whom the Appellants say gave their grandmother the right to occupy. If the Respondents succeed and obtain title to the land, so too might the Appellants succeed in proving their right to occupation, given that it comes from the same source as the Respondents’ title. The permission would have come directly from a party who was at the time entitled to control the land. If the Respondents are proven to be right and ultimately get letters of administration, the basis of the Appellants occupation is not tenuous at all.
21. We therefore propose allowing the appeal, and set aside the statement in the decision that if the Respondents ultimately are granted letters of administration, their claim to remove the defendants from the land will also be granted.
22. We make it clear that if the Respondents get letters of administration and seek to bring the case to a hearing in the future, that there should be no presumption that the claim to remove the Respondents from the land will also be granted. We would however expect that in the event of such a hearing, the written evidence already filed could be treated as read, although there will have to be a full rehearing with rights of cross-examination.
23. As to the rejection of the Appellants’ counterclaim, such an order should not have been made. The Judge’s reason was that the Appellants had no legal basis for occupying the land and could not therefore claim the value for any improvements. However, should the Appellants succeed in getting letters of administration, then the Respondents would appear to have had an arguable legal basis for occupying the land. Mr. Afamasaga’s grandfather Ainuu Tasi I may have been shown to have had the right to deal with the land and grant a license. In that case, the Appellants could pursue their claim for unjust enrichment against the successors in title who, on their case, had been enriched. Whether the claim should succeed will have to be determined when all the relevant facts are known.
24. We conclude that the counterclaim did not and may not fail because of the Respondents’ failure to prove their ownership. We note that there is undenied evidence of improvements being done to the land, and evidence as to what the value of those improvements were. These matters were not dealt with by the Court. They would be a matter that would need to be considered afresh should the Respondents prove their title.

Conclusion

25. There would have been a proper basis for allowing the appeal entirely and dismissing the claim, given the Respondents’ failure to prove ownership. This would have meant that the Appellants’ counterclaim would have also failed, as they could not prove that they have a present claim against the Respondents.
26. However, we have decided that it is fair that the claim, rather than being dismissed, be allowed to continue by the proceedings being adjourned for a rehearing. That rehearing is to follow the granting of letters of administration, if and when that happens. The counterclaim should also be adjourned to any rehearing.

Result

27. The appeal is allowed.
28. The proceedings are remitted back to the Supreme Court for a rehearing, with that rehearing to take place if and when letters of administration are granted for the estates of Toga and Tatapau.
29. The penultimate section at paragraph [60] of the judgment under appeal, and any related aspects of that judgment that can be construed as stating that the Respondents should or will succeed at any subsequent hearing, are set aside.
30. The decision at paragraph [63] of the judgment in relation to the Respondents’ counterclaim is set aside, as is paragraph [66] of the judgment denying the counterclaim. The counterclaim remains to be determined at any rehearing.
31. We direct that the proceedings be placed in a callover list in the Supreme Court for approximately a year’s time, in 2024. We would expect that at that hearing, progress in obtaining the letters of administration would be reviewed, and if appropriate, directions made for amending the pleadings and/or setting down a hearing.

Costs

32. As to costs, the Appellants have been successful and costs follow the event.
33. Costs are to be paid by the Respondents to the Appellants in the sum of WST$5000.

HONOURABLE JUSTICE ASHER
HONOURABLE JUSTICE YOUNG
HONOURABLE JUSTICE ROMA

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^[1] Ainuu & Anor v Norris & Ors [2020] WSSC 104 (09 December 2020).
^[2] ibid., at paragraph [59].
^[3] ibid., at paragraph [56].
^[4] ibid., at paragraph [57].
^[5] ibid., at paragraph [60].
^[6] ibid., at paragraph [61].
^[7] ibid., at paragraph [63].
^[8] ibid., at paragraphs [64]-[66].