IN THE COURT OF APPEAL OF SAMOA
Ieremia v Ieremia & Ors [2025] WSCA 6 (19 June 2025)

Case name: 	Ieremia v Ieremia & Ors 	
		
Citation: 	[2025] WSCA 6	
		
Decision date: 	19 June 2025	
		
Parties: 	MEKELI IEREMIA (Appellant) v LUAIVA IEREMIA & LUPE IEREMIA (First Respondents); BOARD OF BANK OF SOUTH PACIFIC (Second Respondent)	
		
Hearing date(s): 	10 June 2025	
		
File number(s): 	2025-00229	
		
Jurisdiction: 	Court of Appeal – CIVIL	
		
Place of delivery: 	Court of Appeal of Samoa, Mulinuu	
		
Judge(s): 	Hon. Justice Harrison 
Hon. Justice Asher 
Hon. Justice Young
Hon. Justice Clarke	
		
On appeal from:	Supreme Court of Samoa, Mulinuu	
		
Order:	Mekeli’s appeal is dismissed.

He is ordered to pay separate sets of costs of ST$ 5000 plus disbursements to each of Lupe and the BSP.	
		
Representation: 	S. Wulf for the Appellant
A. Faasau for the Second Named First Respondent 
G. Latu for the Second Respondent	
		
Catchwords: 	Power of attorney – ownership of property	
		
Words and phrases:		
		
Legislation cited:		
		
Cases cited:	Ieremia v Ieremia [2024] WSSC 126 (20 December 2024);
Moors v Mortenson [2009] WSSC 103;
Powell v Thompson [1990] 1 NZLR 597.	
		
Summary of decision:		

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

BETWEEN:

MEKELI IEREMIA

Appellant

A N D:

LUAIVA IEREMIA and LUPE IEREMIA

First Respondents

A N D:

BOARD OF BANK OF SOUTH PACIFIC

Second Respondent

Hearing:	10 June 2025

Coram:		Hon. Justice Harrison 
		Hon. Justice Asher 
		Hon. Justice Young
 		Hon. Justice Clarke 

Appearances:	S. Wulf for the Appellant
		A. Faasau for the Second Named First Respondent 
G. Latu for the Second Respondent 

Judgment:	19 June 2025

JUDGMENT OF THE COURT
Introduction
1. 	The appellant, Mekeli Ieremia, owned jointly with his late parents a property at Alafua. The property was then subject to a mortgage to the ANZ Bank. In 2005 Mekeli signed a Power of Attorney (a POA) in favour of his brother, the first named first respondent. Luaiva Ieremia. Luaiva subsequently signed three transfers of title to the property: first, to Mekeli alone by virtue of survivorship (the first transfer); second to himself and his former wife, Lupe Ieremia, the second named first respondent (the second transfer); and third to Lupe alone (the third transfer). 
2. 	While title to the property was in their joint names, Luaiva and Lupe executed a mortgage to Westpac Bank to refinance the ANZ mortgage. The Bank of South Pacific Ltd, (the BSP), the second respondent, is the current mortgagee. Lupe remains the registered proprietor.
3. 	Mekeli claims that by signing the second and third transfers Luaiva acted (1) outside his lawful authority; (2) fraudulently; or (3) in breach of a fiduciary duty owed to Mekeli. As well, and more relevantly for present purposes as Luaiva did not participate in the proceedings, Mekeli claims that Lupe was a party to Luaiva’s dishonesty and obtained title fraudulently. He filed proceedings in the Supreme Court for orders setting aside the transfers of title and the BSP mortgage together with an award of damages.
4. 	Following trial the Chief Justice dismissed Mekeli’s claim. He rejected all of Mekeli’s grounds, directed that a caveat lodged by Mekeli against the title to the property be discharged, and ordered Mekeli to pay solicitor client costs to both Lupe and the BSP. Mekeli now appeals against that judgment.
Background
5. 	These core chronological events are drawn from public records and are not in dispute:
(a) 	In 1985 Mekeli bought the land for ST$14,000 in the names of himself and his parents, Ieremia and Lola Ieremia, who were retired missionaries. They died in 2001 and 2003 respectively, leaving Mekeli as the sole surviving registered proprietor. Both his parents are buried on the land.
(b) 	In 2000 Mekeli was convicted of dishonesty offences in Texas, United States of America, and sentenced to a term of 10 years’ imprisonment.
(c) 	On or about 3 January 2005, while still imprisoned, Mekeli executed the POA in Luaiva’s favour, for the reason, he later claimed, that he wanted Luiava to “look after” his land for a term of two years;
(d) 	On or about 4 May 2005 Luaiva arranged for transmission of title to the land to Mekeli by way of survivorship.
(e) 	 On or about 30 May 2005 Luaiva transferred title to the property to himself and Lupe as joint tenants by way of gift. At this point the ANZ mortgage was discharged and replaced by a mortgage from Westpac.
(f) 	On or about 6 October 2015 Luaiva signed the third transfer, divesting his interest in the title to Lupe as sole owner under a property settlement following their divorce. The transfer was not registered until 7 April 2017. In the meantime, on 24 February 2017 Lupe as mortgagor executed a memorandum of mortgage to Bank South Pacific Ltd to refinance the Westpac mortgage.
Supreme Court
6. 	Certain financial transactions which occurred in the earlier stages of this timeframe were disputed in the Supreme Court. Based on contemporaneous documents and evidence given at trial the Chief Justice found that: 
(a) 	in 1994, at Mekeli’s request, the ANZ Bank had opened an account for Lola and her granddaughter Temukisa, Mekeli’s niece. The original facility of ST$100,000 was granted in 1998. On or about 23 March 1999 Mekeli and his parents had signed a mortgage over the property in the ANZ’s favour. By January 2000 the bank indebtedness had increased to ST$ 202,612.
(b) 	Mekeli had funded the interest obligations of around ST$3000 monthly under the mortgage. But after his imprisonment in 2000 the loan fell into default
(c) 	At around this time Luaiva and Lupe approached the ANZ Bank to offer to assist with loan repayments as they wished to avoid a mortgagee sale.
(d) 	At around this time also Mekeli had executed a second mortgage over the property in favour of a Samoan lawyer to secure a debt of ST$200,000
(e) 	From 2000 to 2004 Luaiva and Lupe met some of the mortgage payments from rental income from the property, but repayments were irregular. From 2003 Lupe funded the debt from automatic payments drawn from her wages. Repayments attributable to Lupe in 2003 and 2004 amounted to ST$56,000 additional to other payments made between 2000 and 2002. We add that the evidence shows that she had paid in excess of ST$127,000 by the refinancing date in 2005.
(f) 	As noted, mortgage repayments were irregular. Twice, in 2002 and 2005, the ANZ threatened mortgagee sales. The second threat was averted after Luaiva and Lupe were able to refinance the ANZ mortgage through a loan from Westpac. They were only able to arrange this new financing by acquiring title to the property by Luaiva activating the POA. The Westpac mortgage was registered on 28 June 2005. There was some evidence that the property then had a value of about ST$400,000
(g) 	Sometime in February 2008 Lupe at Mikele’s request sent him details of the Westpac bank account so that he could assume responsibility for the loan repayments. He never paid any funds into the account. Other than two modest payments from other family members totaling US$800, no contributions were made for or on behalf of Mekeli throughout the term of the Westpac mortgage. Lupe was forced to resume responsibility for paying the debt and avert another threatened mortgagee sale.
7. 	It appears that the primary focus of Mekeli’s claim in the Supreme Court was on proving that Lupe had acquired title fraudulently with knowledge that Luiava had acted without legal authority and dishonestly in exercising the POA to effect the second and third transfers. Mr Wulf for Mekeli argued that the transfers, to Lupe’s knowledge, were designed to cheat Mekeli out of his legal entitlement to the land. Lupe’s title was defeasible as a result.
8. 	Lupe’s position was that the land could only be retained in family ownership if she continued to fund the liabilities secured against the title.  She was only prepared to do this if she had what she saw as appropriate security which required her to be on the title to the land.  But although she took title (initially jointly with Luaiva) this was on the basis that she would return the land to Mekeli if reimbursed for the costs to her of clearing debts on, and generally maintaining the condition of the property.  She says that the contemporary email correspondence between the parties (and particularly between her and Mekeli) is consistent with her explanation as to why she acted as she did and that this was accepted by Mekeli at the time.
9. 	The Chief Justice dismissed Mekeli’s claim that Luaiva acted dishonestly in executing these transfers . We shall consider his reasoning by reference to Mekeli’s appeal against his findings on each.
Appeal
(1)	Second Transfer
10. 	The Chief Justice found that the second transfer was necessary to save the property from sale by the ANZ Bank which had threatened to exercise its powers following the borrowers’ frequent defaults in from 2002 onwards. The transaction allowed Luaiva and Lupe to grant a mortgage to Westpac to secure the refinancing necessary to repay the ANZ debt. Without this refinancing, Mekeli would have lost the property and any right to a share in its equity. The Chief Justice also gave weight to the fact by this refinancing transaction Luaiva and Lupe were (a) assuming liability to repay the debt originally incurred by Mekeli with the ANZ and (b) securing the release of his personal guarantee in favour of that bank. 
11. 	In support of Mekeli’s appeal, Mr Wulf submits that Perese CJ erred by failing to find that the POA did not authorize Luaiva to transfer the land to himself and Lupe. This argument hinges upon establishing that Luaiva used the POA to his own financial advantage and Mekeli’s detriment in effecting the second transfer to himself and Lupe. Mr Wulf cites the leading authorities of Moors v Mortenson and Powell v Thompson to support the settled propositions that a POA creates a relationship of agency where the agent or donee’s authority is limited to acting only in the best interests of the donor or principal. Perese CJ acknowledged these principles.
12. 	In support Mr Wulf submits that the loan application submitted by Luaiva and Lupe to Westpac provides evidence that they were seeking to use the security of the property to raise funds for their own improper purpose. He observes that of the Westpac advance of ST$250,000, Luaiva and Lupe required ST$165,725 to discharge the ANZ loan and the balance ofST$84,275 was for their own use.
13. 	Before addressing these specific submissions, we note that the evidential transcript shows that Mekeli was a persistently evasive and untruthful witness.  Mekeli’s whole case was predicated on denying two fundamental parts of the evidence. He denied knowledge of the ANZ loan or signing the mortgage. He also denied authorship and receipt of emails sent from and received at his wife’s email address Both were inherently implausible and were contradicted by the contemporaneous documents and Mekeli’s subsequent conduct. It is significant that on appeal Mr Wulf does not attempt to revive those denials. That Mikeli was prepared to give false evidence on two fundamental issues in the case undermined his other evidence.  
14. 	Mr Wulf’s submission fails for several reasons:
(a) 	The Chief Justice’s finding that the transfer was effected to save the property and thus Mekeli’s interest from foreclosure by the ANZ Bank was soundly based on the evidence. By 2005 Mekeli had been imprisoned for five years. He was unable to meet his substantial mortgage obligations to the bank. Mekeli’s email exchanges with Lupe at this time provide overwhelming evidence of his knowledge that she was meeting his obligations. His emails went further and recorded his appreciation for Lupe’s efforts. In one he said “All the credit goes to you. You have made possible to keep the house so far”. 
(b) 	We agree with Mr Latu for the BSP that the circumstances surrounding Mekeli’s signing of the POA give rise to the clear inference that it was for the purpose of enabling Luaiva and Lupe to refinance the ANZ mortgage; and that Luiava acted with Mekeli’s express authority in effecting the first and second transfers. As Ms Faasau pointed out to Mekeli in cross examination, there was a close juxtaposition between the ANZ issuing a notice of default and Mekeli’s execution of the POA.  In the Chief Justice’s own words “I am certain that the arrangements were made to benefit Mekeli”. Mekeli’s explanation at trial that he signed the POA because jail was a dangerous place where he feared for his safety and well-being and he wanted his brother to look after his land was as implausible as other parts of his evidence. The rejoinders are obvious. If that was so, why had Mekeli not signed the POA in the preceding five years, instead of within two years of his parole eligibility? How would a POA protect Mekeli from the danger posed by other inmates? And a POA is executed for the purpose and in contemplation of the donee being able to take some affirmative action on the donor’s behalf.
(c) 	As Ms Faasau pointed out, Mekeli could not dispute his core indebtedness under the refinanced ANZ mortgage for ST$165,725. The balance of ST$ 84,275 was raised to repay money which Luaiva and Lupe had borrowed from family and friends to meet repayments between 2000 and 2005. Ms Faasau drew our attention to Lupe’s 26 December 2006 email to Mekeli explicitly advising of this division and asking for him to reimburse her. An extensive email exchange followed in early 2007, replete with Mikele’s empty promises of reimbursement and assurances that he would make future payments. Mr Latu referred to Mekeli’s begrudging concession under Ms Faasau’s cross examination that the Westpac refinancing was “a good thing”.  With this state of knowledge, Mekeli’s failure to raise any complaint for the next 10 years amounted to his ratification of Luaiva’s actions taken on his behalf, as Ms Faasau submitted.
(d) 	During argument Mr Wulf submitted that Luaiva and Lupe could have met the outgoings under the ANZ mortgage from rental earned from leasing the property. However, Ms Faasau produced a schedule showing that rents were negligible and intermittent for many years. 
15. 	A claim of civil fraud requires proof to a high standard of probability. The Chief Justice enjoyed the benefit of presiding at trial and evaluating the reliability and credibility of the parties as they gave evidence. His rejection of Mekeli’s allegations that the second transaction was fraudulent was soundly based and supported by all the documentary evidence and surrounding circumstances. Mr Wulf has failed to satisfy us that we should interfere.
(2)	Third Transfer
16. 	The Chief Justice found that Luaiva acted honestly in effecting the third transfer to divest his joint interest to Lupe in 2015 after they separated in 2007 when he shifted to the United States. She had assumed sole responsibility for meeting the Westpac mortgage obligations for the intervening eight years. Luaiva wanted to regularize the legal and factual position by securing a release of his liability as joint mortgagor. In consideration, as part of a property settlement, Lupe agreed to become the sole mortgagor. Westpac agreed to this arrangement with the result that Lupe took sole title to the property. Lupe subsequently refinanced the Westpac loan through the BSP, the current registered mortgagee.  We observe that again if Lupe had not taken action the property would have gone to a mortgagee sale.
17. 	Mr Wulf did not advance a discrete challenge to this decisive finding. He apparently relies upon his earlier grounds of challenge to the second transfer based on Luaiva’s alleged misuse of the POA. was dishonest.
18. 	Mr Wulf’s argument meets a conceptual obstacle. As Ms Faasau emphasizes, the two-year term of the POA had long expired in 2015. Luaiva transferred his joint interest in the title to Lupe in his capacity as registered proprietor. Mr Wulf’s argument could only succeed by establishing that the third transfer was tainted by Lupe’s knowledge that the second transfer was fraudulent. Our dismissal of that argument is decisive, and as noted Mr Wulf did not advance a discrete challenge to the Chief Justice’s findings that the third transfer was not fraudulent.
19. 	It follows that we dismiss Mekeli’s appeal against the dismissal of his claims that the second and third transfers were fraudulent and should be set aside.
(3)	Constructive Trust
20. 	Mr Wulf did not press on appeal an argument for the existence of a constructive trust which had failed in the Supreme Court. He did make a submission akin to a claim of unjust enrichment which also failed at first instance. It was to the effect that Lupe has unfairly benefitted from acquiring title at the expense of Mekeli’s original ownership interest. 
21. 	This submission is directly contrary to the facts. For at least 15 years Lupe carried the entire burden of caring for the proper and financing the indebtedness incurred by Mekeli and his family. Her evidence establishes that she also assumed a great deal of the pastoral responsibility the wellbeing of her elderly in laws while Mikele was imprisoned without their knowledge. The Chief Justice accepted evidence that these burdens  took a heavy toll on her marriage, family relations and her health. Lupe produced a schedule of her expenditure over the relevant period. It is apparent that she kept meticulous records. She paid over ST$500,000 to both the ANZ and Westpac banks. She spent more than $400,000 in maintaining and renovating the property so that it was in a fit state for rental by 2017.  She paid out far more than was received in rent.
22. 	Up to the date of trial Lupe was prepared to convey title back to Mekeli if he reimbursed her for her mortgage and improvements payments. However, Mekeli’s case was that she was not entitled to any credit for this expenditure; and that he is entitled to a reconveyance free of any encumbrances. The Chief Justice was unimpressed by this stance. We are similarly unimpressed. None of the underlying equities favour Mekeli’s position. 
(4)	BSP
23. 	Mr Wulf submits that the Chief Justice erred in failing to grant any relief against the BSP. However, Mekeli has no possible right of relief against the bank given the failure of his underlying claim against Lupe. And Ms Faasau and Mr Latu confirmed that Lupe has now repaid the BSP mortgage which is awaiting registration of a discharge.
Conclusion
24. 	The relief sought by Mekeli in the statement of claim is predicated on the basis that Lupe acted dishonestly and fraudulently.  As the Chief Justice indicated in his judgment, such claims show an astonishing failure of moral compass on Mekeli’s part.  He abandoned all the responsibility for the property to Lupe. While it was retained only by Lupe’s financial and personal efforts, she has remained willing to recognise Mekeli’s potential residual interest in it.
25. 	Mekeli’s failure to recognise Lupe’s contributions and lack of any fraudulent intent has led to him pleading this case on the basis that he should get the property back with no financial recognition of Lupe’s interests.  Orders are sought placing the property in Mekeli’s name and for Lupe and Luaiva to pay him damages.  These claims must fail.  This is why the Chief Justice dismissed the claim. 
26. 	There might have been some return for Mekeli in the case if he had recognised and pleaded the correct legal and factual position. He may have been able to show a residual equitable interest in the property on the basis that after repayment to Lupe of all her net contributions together with fair interest some equity might be left in the property for him. But this is speculation, and such an accounting exercise might result in a conclusion in Lupe’s favour.  In any event, that is not how Mekeli has pleaded his case, and it is too late to fix it now.  Indeed no attempt has been made to do so.  His causes of action must all fail.  
Result
27. 	Mekeli’s appeal is dismissed.
28. 	He is ordered to pay separate sets of costs of ST$ 5000 plus disbursements to each of Lupe and the BSP.
HON. JUSTICE HARRISON
HON. JUSTICE ASHER
HON. JUSTICE YOUNG
HON. JUSTICE CLARKE