Faafulu v Su [2000] WSSC 17 (3 July 2000)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

TULIAUPUPU FAAFULU, PILIMAI SOFENI,
TAUA FAASOI, TAVAI IEFATA and TULIAUPUPU PALA LIMA
of Letogo in their own right and as representatives of the Alii and Faipule of Letogo.
Plaintiffs

AND

FALETUAI PELENATO SU
Workman,
AKE ETUALE
Married Woman both of Letogo.
Defendants

Counsel: R Drake for plaintiffs
T R S Toailoa for defendants

Hearing: 2 December 1999; 28 May and 9, 14 June 2000
Judgment: 3 July 2000

JUDGMENT OF SAPOLU CJ

In these proceedings the Court is concerned with the plaintiffs’ action for a permanent injunction to restrain the defendants and their agents from re-entering the land in dispute from which they had been banned under an interim injunction already granted by the Court. The Court is also concerned in these proceedings with a counterclaim by the defendants founded on the equitable doctrine of proprietary estoppel and a counterclaim for compensation.

In 1986 the Western Samoa Trust Estates Corporation (WSTEC) leased to the Alii and Faipule of the village of Letogo part of its land at Letogo which was then being planted with coconuts and used both as a coconut plantation and a cattle farm. There was no formal deed of lease drawn up but that is immaterial for the purpose of these proceedings. The total area of land that was leased was said to be 34 acres 2 roods 29.2 perches. The lease was to be for a term of 20 years with a right of renewal for a further 20 years. The rent as approved by Cabinet pursuant to CM(88)6 was $5 per acre for every year or $172.50 for the whole lease per year. The lease was to commence on 1 November 1986. The land which forms the subject of the lease was said to have been re-registered under the Samoa Land Corporation and is therefore no longer with WSTEC the original lessor.

The land was surveyed and was then subdivided into lots. The Alii and Faipule of Letogo then distributed these lots of land to the people of Letogo including a few persons who were not villagers of Letogo. One of these persons who was not a villager of Letogo is Fuatimau Matulino (Fuatimau) a matai of Laulii who attends and serves in the Catholic Church in Letogo. His father had also served in the Catholic Church in Letogo and built the temple for that Church. So the Alii and Faipule of Letogo when requested by Fuatimau granted him a piece of land from the land leased from WSTEC. The piece of land given to Fuatimau was one quarter of an acre in area and was described as lot 109. The basis on which the lands were distributed out by the Alii and Faipule of Letogo seems to be licences rather than sub-leases.

Now each family that was given a piece of land was required to pay $150 towards the costs of surveying the land and $20 towards the total rent for the first term of 20 years of the lease. Fuatimau paid his $150 for the survey costs and $20 for the rent.

I do not accept Fuatimau’s evidence that the land given to him by the Alii and Faipule of Letogo was given to him as a “igagato” for the services of his deceased father who built the church for the Catholic Church at Letogo many years ago and for his own services to the same Church. A “igagato” in our Samoan custom means a reward, usually in the form of an outright gift of a matai title or land, given to someone for an extraordinary service he has performed. In the first place I do not accept that the village of Letogo would have waited for many years before deciding to reward the services of Fuatimau’s deceased father with a piece of land that does not actually belong to the Alii and Faipule. There is also no evidence of any extraordinary service rendered by Fuatimau himself, to the Church at Letogo to justify an outright gift or conveyance of the land to him. In his own evidence he admitted that the land was WSTEC land leased to the Alii and Faipule of Letogo. So how could it be possible for the Alii and Faipule of Letogo to gift outright to him by way of a “igagato” land that does not belong to the Alii and Faipule. The fact that Fuatimau also paid $20 rent for the lease of the piece of land allotted to him clearly shows that Fuatimau knew that the land was a lease from WSTEC and therefore could not be given or conveyed outright to him as a “igagato”. His further evidence that he subsequently gave back the land when asked to do so by the Alii and Faipule of Letogo again shows that the land was not given outright to him as a “igagato”.

Much evidence was given on the question whether the Alii and Faipule of Letogo imposed a condition in respect of the lands given to non-villagers that they were not to give those lands to someone else. According to the evidence given for the plaintiffs who are not only members of the Alii and Faipule of Letogo but also the current members of the Letogo land committee, a condition was imposed on the allottment of land to non-villagers which included Fuatimau. That condition was that while the non-villagers could occupy and use the lands given to them, they were not to give those lands to someone else. Fuatimau in his evidence denied such a condition was imposed. However, this part of the evidence is not crucial to the issues which call for decision in this case.

In his evidence, Fuatimau said that after the land was given to him his wife’s parents requested him that they wanted the land for them to build a house to rest and have peace of mind. He agreed to the request by his parents-in-law and told them to build a house on the land. This discussion, according to Fuatimau, took place while the defendant Faletuai Pelenato Su (Faletuai) who is one of his wife’s brothers, was present. Fuatimau further testified that the understanding between himself and his parents-in-law was that they could use the land in the meantime but the land was to return to him.

Faletuai in his evidence said that Fuatimau and his wife approached him and his parents twice about this land. On the second time he and his parents accepted Fuatimau’s offer to hand over the land as the tautua (service) of his children. This evidence by the defendant Faletuai is at variance with the evidence given by Fuatimau. It does not appear plausible and I reject this part of Faletuai’s evidence. Faletuai’s evidence suggests that the land was given to him and his parents by Fuatimau as the tautua (service) by Fuatimau’s children. While there may be occasions where a son-in-law or his children may render such a major tautua as the gift of a piece of land to the parents-in-law, I cannot see why Faletuai who, himself, should also be rendering tautua to his own parents should be included in the land. In any case, Fuatimau knew that the land belonged to WSTEC at the time and was on a lease basis to the Alii and Faipule of Letogo so that he could not gift the land outright to someone else as a tautua. This knowledge on Fuatimau’s part would be consistent with his evidence that he only agreed to the request by his parents-in-law to build a house on the land for them to rest and have peace of mind but the understanding with his parents-in-law was that the land was to return to him later. It further appears from Fuatimau’s evidence that his parents-in-law did not live for long on the land before they left for Australia.

In his evidence Faletuai also said that he built a house with a corrugated iron roof and timber floor on the land for the use of his parents and his family. This must have been towards the end of 1986 and not 1985 as Faletuai said because Cabinet approved the lease of WSTEC land at Letogo to the Alii and Faipule of Letogo in 1986 and the lease was to commence on 1 November 1986. Faletuai also said that he cleared the land for the purpose of building the house for his parents and family and for planting bananas, taros and taamu. He also said he bought a second-hand barbed wire for $30 and used it to fence the land. He then left the land in 1987. So Faletuai did not stay for long on the land if it is true that he did live on the land.

Faletuai is now claiming compensation for clearing the land and for the house he built. He is also claiming compensation for the crops he planted and for the barbed wire fence he said he put up around the land. In my view this claim for compensation cannot succeed. The house Faletuai said he built on the land was subsequently dismantled by his own family and parts of it were used to build an extension to the house built by his brother Savelio while other parts were used by his brother Savelio for building a house for the church he set up on the land. Both those houses have been removed from the land. In fact one of the houses was sold by Savelio to the plaintiff Tuliaupupu Pala Lima for $2,000. As for the bananas, taros and taamu, they are short-termed crops. Bananas generally take about a year to be ready for consumption; taros take about 9 to 12 months and taamu about 2 or 3 years to be ready for consumption. Thus one would not expect to find any of those crops on the land when Faletuai filed his counterclaim for compensation in 1999. In his evidence, Faletuai also said that when he left the land in 1987 his brother Savelio moved on to the land and his crops that were still on the land at that time were left there for the consumption of his parents and his brother Savelio. So why should the plaintiffs be required to pay for those crops.

As for the expenses Faletuai incurred in clearing the land, it is clear that the land was cleared to facilitate the building of the house for Faletuai’s parents and family and for the planting of crops for consumption by Faletuai’s family. So the clearing of the land was for the benefit of Faletuai’s own family and no one else. I see no good reason why the plaintiffs should pay for that. As for the wire fence, it is not clear from the evidence whether the barbed wire fence is still on the land. But the barbed wire cost about $30. From 1986 when the fence was put to 1999 when the counterclaim was filed is a period of 13 years. The barbed wire fence must have so depreciated in value in that period of time that it must now be valueless. However, if the barbed wire fence is still on the land then it should be given back to Faletuai.

Now to complete the history of events relating to this case, the evidence of Faletuai is that his brother Savelio moved on to the land after he left in 1987 and continued to live on the land. Later Savelio set up a new church on the land. According to the evidence for the plaintiffs, they were greatly unhappy and displeased with Savelio as the new church he had set up was not one of the religious denominations that had been approved by the Alii and Faipule of Letogo. So when a delegation from the new church comprising of Savelio, Faletuai and other members made a presentation of money and foodstuffs to the Alii and Faipule of Letogo as the “oo” of their new pastor, the Alii and Faipule of Letogo rejected it. The presentation of the “oo” in this context really means the payment of the entrance fee for the pastor of the new church set up by Savelio into the village of Letogo. It was only, according to the plaintiffs’ evidence, when Faletuai who was acting as spokesman for the delegation said that the presentation was for the Alii and Faipule of Letogo in order for them to afford protection to the new church which would not be set up on the disputed land but on land belonging to the National Provident Fund which was situated further inland, that the Alii and Faipule of Letogo decided to accept the presentation.

After the presentation Savelio and his new church, however, continued to hold and conduct their services on the disputed land. In spite of several messages from the Alii and Faipule of Letogo to Savelio to stop his new church, Savelio just carried on. The Alii and Faipule of Letogo then called a meeting with Fuatimau in 1995 in which the Alii and Faipule informed Fuatimau of Savelio’s actions. During discussions that took place, Fuatimau agreed to give back the land to the Alii and Faipule of Letogo and for them to deal with Savelio. The Alii and Faipule then refunded to Fuatimau the sum of $150 he had paid for the costs of surveying the land as leased from WSTEC.

The Alii and Faipule of Letogo then sought and obtained an injunction from this Court in 1996 to remove Savelio from the land. Savelio did not vacate the land until 1998. When Savelio vacated the land he sold the house he had built on the land to one of the plaintiffs, Tuliaupupu Pala Lima, for $2,000 leaving only a small shelter on the land. After Savelio left the land, Faletuai and his daughter Ake Etuale, the second named defendant, moved onto the land and occupied it. In August 1998, the solicitor for the plaintiffs wrote to Faletuai and advised him of the injunction that had been issued against his brother Savelio and that he should vacate the land. Faletuai and his daughter Ake Etuale refused to leave the land. Then in February 1999 the plaintiffs sought and obtained from this Court an interim injunction to remove Faletuai and his daughter from the land. The present proceedings follow on from that interim injunction.

Issues

Proprietary Estoppel

It was not disputed that the land belonged to WSTEC but was subsequently transferred to and registered under the name of the Samoa Land Corporation. Ownership of the land was therefore with WSTEC but is now with the Samoa Land Corporation. It was also undisputed that the land was leased from WSTEC to the Alii and Faipule of Letogo in 1986. The legal position of the Alii and Faipule of Letogo is thus that of lessee. When the Alii and Faipule of Letogo subdivided the land and distributed it to the people of Letogo and certain non-villagers including Fuatimau, I find that what was given out were mere licences. So in this case the Alii and Faipule of Letogo were the licensor and Fuatimau was the licensee. Fuatimau in turn upon request from Faletuai’s parents gave them permission to live on the land in the presence of Faletuai on the understanding that the land was to come back to Fuatimau.

Faletuai now seems to claim ownership of the land against the Alii and Faipule of Letogo as plaintiffs on the basis of the equitable doctrine of proprietary estoppel on the basis of acquiescence. The insurmountable difficulty in Faletuai’s claim is that he cannot claim ownership of the land against the Alii and Faipule of Letogo for they are not the owners of the land. Ownership of the land was with WSTEC in 1986 and 1987 and is now with the Samoa Land Corporation. If Faletuai wanted to claim ownership of the land as he appears to be doing in this case, then he should have gone against the Samoa Land Corporation.

The second difficulty is that Faletuai is not clear about the nature of the equity he is claiming. If it is not outright ownership, then what is it. If one is to assume that the nature of the equity that Faletuai is claiming is a lease or a license then the evidence falls short of establishing such an equity. There is no evidence of rent being charged or a fixed term of occupation being given by the Alii and Faipule to Faletuai to suggest that an equity in terms of a lease has arisen. There is even no evidence to support a licence.

Fuatimau’s evidence is clear on how Faletuai came onto the land which must have been after 1 November 1986. In 1987 Faletuai left the land. It was only in 1998 when he tried to re-occupy the land after his brother Savelio was evicted from the land. Then Faletuai had an interim injunction issued against him restraining him from reoccupying the land. Such evidence does not give rise to an equity in the nature of a lease or licence in favour of Faletuai.

What is clear is that Faletuai come onto the land because Fuatimau permitted Faletuai’s parents to live on the land while Faletuai was present. The land was to go back to Fuatimau. So Faletuai must have known the basis on which he came onto the land. Then he left in 1987 until 1998 when he tried to re-occupy the land. There is no acceptable evidence that the Alii and Faipule of Letogo acquiesced in his occupation of the land or in respect of anything he did on the land. In fact the evidence for the plaintiffs is that they never knew of Faletuai living on the land or cultivating the land in 1986 or 1987. I disbelieve Faletuai’s evidence that people of Letogo waved to him and he waved to them while he was on the land. But even if I were to accept such evidence, it is not sufficient to support acquiescence against the plaintiffs who were not aware of Faletuai being on the land. Equity in general acts in personam. Here the plaintiffs against whom Faletuai is counterclaiming on the basis of the equitable doctrine of proprietary estoppel were not personally aware of Faletuai’s presence on the land.

The counterclaim based on proprietary estoppel cannot succeed.

Promissory estoppel

The suggestion during the submissions for the defendants that the defendants’ counterclaim could be founded in the equitable doctrine of promissory estoppel cannot also succeed as there was no promise of any kind from the plaintiffs to the defendants.

Compensation

I have already dealt with the counterclaim for compensation which is dismissed.

Conclusion

The defendants’ counterclaim is dismissed. A permanent injunction is issued to restrain the defendants, their relatives, agents and servants from again entering the land in question. Costs are awarded to the plaintiffs o be fixed by the registrar.

CHIEF JUSTICE

Solicitors:
Drake & Co. for plaintiffs
Toailoa Law Office for defendants