Ching v Elisara [2000] WSSC 40 (20 December 2000)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

SAGATO WOO CHING
of Pago Pago, Planter.
Plaintiff

AND

BARBARA ELISARA
of Savalalo, Businesswoman and
ANDREW ROEBECK
of Savalalo, Clerk.
Defendants

AND

ESERA JAMES ROEBECK
of Auckland, New Zealand and Savalalo, Samoa, Retired.
Third Party

Counsel: T. K. Enari for plaintiff
P. A. Fepuleai for defendants and third party

Hearing: 19 and 20 December 2000
Judgment: 20 December 2000

JUDGMENT OF SAPOLU CJ

The plaintiff and the third party are brothers in law, the third party being married to one of the plaintiff’s sisters. The defendants are two of the children of the third party and his wife. So the parties in this case are all members of the same family.

The plaintiff, his mother and step-father, his brothers, his sisters as well as the third party and his wife and their children who had been born at the time all used to live together at Palisi in 1958. In the same year, the plaintiff bought from the Roman Catholic Mission the land at Savalalo, which is the subject of these proceedings for 500 pounds. The land is just over a quarter of an acre in area. About the same time, the plaintiff also bought from the then occupier of the land the three bedroom house which is still located on the land for 400 pounds. The plaintiff and his family, which included his mother, step-father, brothers, sisters as well as the third party and his wife and their children, all moved from Palisi and lived in the three bedroom house on the land at Savalalo. While living together at Savalalo, the third party built a small Samoan fale near the rear boundary of the land.

For the purchase of the three bedroom house, it was the plaintiff who paid the full purchase price. For the purchase of the land, it was the plaintiff who entered into a sale and purchase agreement with the Roman Catholic Mission the then owner of the land. The third party had nothing to do with the initial arrangements for the purchase of the land. The plaintiff paid an initial deposit of 200 pounds in 1958. He then made monthly payments, at irregular intervals, of five pounds and ten pounds towards the balance of the purchase price of the land until June 1960. In that year the plaintiff married a girl from American Samoa. They lived for a short period of time on the land. On 19 July of the same year, the plaintiff and his wife moved to American Samoa where the plaintiff has been living ever since. In his evidence, the plaintiff was quite definite that when he left for American Samoa, he had paid a total sum of 250 pounds including the initial deposit of 200 pounds towards the purchase price of the land.

In his evidence, the third party says that in 1960 he was working as a teller at the then Bank of Western Samoa. He later became the head teller in that bank but it is not clear whether he became head teller in 1960 or after that year. When the plaintiff and his then newly married wife were about to leave for American Samoa, the third party says he had been approved a loan by the bank to buy a section of land at Vaivase and built a home. The third party also says that the plaintiff begged him to stay at Savalalo as he was leaving with his wife to look for their future in American Samoa. He further says that the plaintiff told him that he had advised the priest who was responsible at that time for the lands of the Roman Catholic Mission that the third party would be responsible for paying off the land. The third party also says that the plaintiff said to him to bear in mind the payments for the land, and that if anything happened to the plaintiff in American Samoa, the land would be the third party’s land. In his evidence the plaintiff does not remember any of these things. He also denies having any knowledge of the third party having made any payments towards the balance of the purchase price of the land or having made any loan arrangements with the then Bank of Western Samoa for the purchase of a section of land at Vaivase and for building a home thereon.

After considering this part of the evidence, I have decided to accept the evidence given by the third party as credible. Receipts were produced to confirm the payments made by the third party, in the name of the plaintiff, to the Roman Catholic Mission for part payment of the price of the land, after the plaintiff left for American Samoa. In a letter dated 19 March 1965 from the priest who was responsible for the lands of the Roman Catholic Mission to the plaintiff in American Samoa, the priest says that he thinks the plaintiff had already told him that the third party and his wife are the ones to have the land and they have been paying towards the purchase of the land. The plaintiff in his evidence confirms receiving that letter which he produced as part of his evidence. So he must have known from that letter that the third party had been making payments towards the purchase price of the land. I therefore do not accept the plaintiff’s denial that he had no knowledge of the third party having made any payments towards the balance of the price of the land. What is said in the letter about the plaintiff having told the priest that the third party and his wife were the ones to have the land, tends to confirm the evidence given by the third party that the plaintiff told him that if anything happened to him in American Samoa, the land would be with the third party. That piece of evidence, together with what is said in the letter about the third party approaching the priest to pay off the reduced balance of 95 pounds of the purchase price of the land and to have the land transferred to him and his wife, clearly suggest that the payments made by the third party for the land were not intended to be a gift to the plaintiff. All this generates confidence in what the third party says about having already arranged a loan for the purchase of a section of land at Vaivase and for building a home when the plaintiff begged him in 1960 to remain at Savalalo as he and his wife were leaving to look for their future in American Samoa. The plaintiff’s family, including his mother and step-father, were also all staying at Savalalo and the third party seems to have been the only member of the family with a reasonably paid job.

After the plaintiff had talked to him, the third party says he changed his mind about buying a section of land at Vaivase and building a house there for himself, his wife and children. He thought of the members of his wife’s family who would be left to themselves at Savalalo. He therefore cancelled his loan which had already been approved by the bank and remained with his wife and children at Savalalo and made payments to the Roman Catholic Mission to clear the balance of the purchase price of the land.

From the receipts for payments produced by the third party, it is clear that he made payments in 1962, 1963 and 1964 towards the balance of the purchase price of the land. The last payment he made was on 28 April 1964. These payments total up to 130 pounds. And the third party was quite definite in his evidence that that was the total sum of the payments he made. On the other hand, the plaintiff also produced receipts for payments to confirm that he paid a total of 250 pounds, including the initial deposit of 200 pounds he paid in 1958, towards the price of the land before he left for American Samoa. He made no further payments whilst in American Samoa until he received the letter dated 19 March 1965 from the priest saying that the third party had approached him (the priest) about paying off the reduced balance of 95 pounds and for the land to be transferred to him (the third party) and his wife. The plaintiff replied by letter dated 25 March 1965 conveying his refusal to have the land transferred to the third party and his wife. He enclosed in his letter a cheque for 95 pounds to clear off the outstanding balance for the land and requested the priest to convey the land to him. The plaintiff was quite definite in his evidence that those were the only payments he made towards the purchase of the land.

If the third party and the plaintiff are both correct about the total payments each of them made to the purchase price of the land, then the third party paid a total sum of 130 pounds and the plaintiff paid a total sum of 345 pounds. If these sums are added together, they come to a total of 475 pounds. But the price of the land was 500 pounds. Obviously there is a shortfall of 25 pounds which is unaccounted for. Counsel for the defendants and third party told the Court that there is a consensus between counsel that the sum of 25 pounds which is unaccounted for should be divided equally between the third party and the plaintiff. If that is done, the third party would be taken to have contributed 142 pounds and ten shillings towards the purchase price of the land and the plaintiff 357 pounds and ten shillings. I think the consensus between counsel is a proper one, and I accept it.

It is impossible to find out from the evidence who contributed the sum of 25 pounds of the purchase price of the land which is unaccounted for. But it is clear that only the third party and the plaintiff contributed to the purchase price and no one else. It is also clear that the owner of the land received the full purchase price. In my judgment, this is a case in which the maxim “equality is equity” should apply, and each of the third party and the plaintiff should be taken to have contributed in equal shares to the sum of 25 pounds which cannot be accounted for. Any other conclusion would have no evidential foundation and would be mere unfounded guesswork. In Snell’s Equity (1990) 29^th edition, it is stated at p. 36:

“It has long been a principle of equity that in the absence of sufficient reasons for any other basis of division, those who are entitled to property should have the certainty and fairness of equal division; for ‘equity did delight in equality’. The maxim is ‘equality is equity’, and this has been applied in a variety of ways.”

Then at p. 38 of the same textbook, it is again stated:

“[The] maxim ‘equality is equity’ may be illustrated by a number of more modern instances. In general, the maxim will be applied whenever property is to be distributed between rival claimants and there is no other basis for division. ‘I think that the principle which applies here is Plato’s definition of equality as a ‘sort of justice’; if you cannot find any other, equality is the proper basis: Jones v Maynard [1951] Ch. 572 at 575, per Vaisey J’”.

A deed was prepared and dated 27 April 1963 which conveyed the land to the plaintiff. That deed has been registered so that the plaintiff is the registered owner of the land. The consideration for the land mentioned in the deed is 500 pounds and had been paid in full. So there is no doubt that the third party and the plaintiff did pay off the full purchase price of the land even though there is a sum of 25 pounds which cannot be accounted for. As I have said that sum should be divided equally between the third party and the plaintiff as they were the only persons who contributed to the purchase of the land. It is now many years since this purchase was made in the early 1960’s. Memories must have faded and receipts may have been lost.

Now, after the plaintiff and his wife left for American Samoa in 1960, the third party, their children, the plaintiff’s mother and stepfather, and his brothers and sisters continued to live on the land. The third party made improvements to the land such as reclaiming part of the land that was swampy, building new houses on the land and adding two more bedrooms to the original three bedroom house so that it is now a five bedroom house. There is also a shop now on the land operated by one of the third party’s children. In all there are now about five buildings on the land.

In 1984 the third party and his wife moved to New Zealand where they are still living. They left their children to live on the land. The defendants, two of the third party’s children, are living on the land. The third party says that even though he and his wife are now living in New Zealand, they come to Samoa two or three times a year and live on the land.

In 1994, the plaintiff wanted the defendants and the third party to vacate the land but the defendants refused to leave. The plaintiff has therefore brought the present proceedings for an eviction order. The defendants have joined their father as third party. He has counterclaimed for compensation on the basis of unjust enrichment for the improvements he claims to have made to the land and for his contributions to the purchase price of the land. I indicated to counsel for the defendants and the third party that the proper basis for the third party’s counterclaim for his contributions to the purchase price of the land should be a resulting trust. And if the third party succeeds on the basis of a resulting trust, it would be unnecessary in these proceedings to award any compensation in restitution for unjust enrichment as the defendants would not be ordered off the land. The reason is that they are living on the land as children of the third party, and with permission of the third party, who still visits and lives on the land twice or three times a year. Counsel then conducted the case for the defendants and the third party on that basis.

Article 111(1) of the Constitution of course applies the English common law and equity to Samoa unless excluded by an Act of the Samoan Parliament or a decision of a Samoan Court. There has been no such Act or Court decision in respect of the presumption of a resulting trust as it applies to contributions of purchase money for the acquisition of real or personal property. English law relating to the application of the presumption of a resulting trust to contributions made by two or more persons to the purchase money for land is now well settled.

In Bull v Bull [1955] 1 QB 234, the plaintiff and his mother, the defendant, purchased a dwelling house. They both contributed to the purchase money. The mother did not intend her contribution of the purchase money to be a gift to her son.

As the son provided the greater part of the purchase money, the conveyance of the land was taken in his name. So the son was the registered legal owner of the house. Four years later, the son married. Soon, afterwards, differences arose between the mother and her daughter in law, and the son wanted his mother to move out of the house. The mother refused to leave saying she had contributed quite a lot of money to the purchase of the house. So the son brought legal proceedings to remove his mother from the house. Denning LJ (as he then was) in a judgment with which the other members of the Court concurred, said at pp 236-237:

“The son is, of course, the legal owner of the house; but the mother and son are, I think, equitable tenants in common. Each is entitled in equity to an undivided share in the house, the share of each being in proportion to his or her respective contribution. The rights of equitable tenants in common as between themselves have never, as far as I know, been defined; but there is plenty of authority about the rights of legal owners in common. Each of them is entitled to the possession of the land and to the use and enjoyment of it in a proper manner. Neither can turn out the other; but if one of them should take more than his proper share the injured party can bring an action for an account. If one of them should go so far as to oust the other he is guilty of a trespass: see Jacobs v Seward [1872] UKLawRpHL 10; (1872) L.R. 5 H.L. 464. Such being the rights of legal tenants, I think that the rights of equitable owners in common are the same, save only for such differences as are necessarily consequent on the interest being equitable and not legal.”

Then at p. 238, His Lordship said:

“My conclusion, therefore, is that, when there are two equitable tenants in common, then, until the place is sold, each of them is entitled concurrently with the other to the possession of the land and to the use and enjoyment of it in a proper manner; and that neither of them is entitled to turn out the other.”

Further on at p. 239, His Lordship went on to say:

“My conclusion is therefore, that the son, although he is the legal owner of the house, has no right to turn his mother out. She has an equitable interest which entitles her to remain in the house as tenant in common with him until the house is sold. If they fall out the house should be sold and the proceeds divided between them in the proper proportions; but he cannot at his will turn her out into the street.”

In Calverly v Green [1984] HCA 81; (1984) 155 CLR 242, a husband and wife purchased a house. Part of the purchase price was raised by a mortgage under which both parties were liable to the mortgagee. The parties were registered as joint owners of the house but it was clear the husband provided the greater part of the purchase money. Some years later the couple parted and the wife brought an action seeking an order for the sale of the house and a distribution of the proceeds equally between the parties. In the course of his judgment, Gibbs CJ said at p. 246:

“[If] the purchase money is provided by two or more persons jointly, and the property is put into the name of one only, there is, in the absence of any such relationship [as gives rise to a presumption of advancement], presumed to be a resulting trust in favour of the other or others. For the presumption to apply the money must have been provided by the purchaser in his character as such – not, e.g., as a loan. Consistently with these principles it has been held that if two persons have contributed the purchase money in unequal shares,....., there is again in the absence of a relationship that gives rise to a presumption of advancement, a presumption that the property is held by the purchasers in trust for themselves as tenants in common in the proportions in which they contributed the purchase money....”

His Honour then went on to say at p. 247:

“As I have indicated, the general rule that in the situations mentioned it is presumed that a resulting trust arises in favour of the purchasers in the proportions in which they contributed the purchase money, it is subject to the exception created by the presumption of advancement. ‘It is called a presumption of advancement but it is rather the absence of any reason for assuming that a trust arose or in other words that the equitable right is not at home with the legal title: Martin v Martin [1959] HCA 62; (1959) 110 CLR 297 at 303; in other words, it is ‘no more than a circumstance of evidence which may rebut the presumption of a resulting trust:’ Pettitt v Pettitt [1970] AC 277 at p.814.

His Honour then continued to refer to the kind of relationships in which the presumption of advancement would apply. As none of them applies to this case, I need not refer to them. But any one who wishes to understand the kind of relationships in which the presumption of advancement would apply, as well as the presumption of a resulting trust generally, would benefit from reading the whole of the judgment of Gibbs CJ and that of Deane J in the same case.

At pp 266 – 267 of the case, Deane J said:

“There are three presumptions of equity which are here relevant. The first is that which was applied by Rath J at first instance in this case but was held by the Court of Appeal to be irrelevant upon a proper appreciation of the facts. Worded in terms that are appropriate for present purposes, it is, where a person pays the purchase price of property and causes it to be transferred to another or to another and himself jointly, the property is presumed to be held by the transferee or transferees upon trust for the person who provided the purchase money. The second can properly be seen as complimentary of the first. It is: where two or more persons advance the purchase price of property in different shares, it is presumed that the person or persons to whom the legal title is transferred holds or hold the property upon resulting trust in favour of those who provided the purchase price in the shares in which they provided it.

“The third ‘presumption’, usually called the ‘presumption of advancement,’ is not, if viewed in isolation, strictly a presumption at all. It is simply that there are certain relationships in which equity infers that any benefit which was provided for one party at the cost of the other has been so provided by way of ‘advancement’ with the result that the prima facie position remains that the equitable interest is presumed to follow the legal estate and to be at home with the legal title, or in the words of Dixon CJ, McTiernan, Fullagar and Windeyer JJ in Martin v Martin [1959] HCA 62; (1959) 110 CLR 297 at 303; that there is an ‘absence of any reason for assuming that a trust arose’”.

In the next relevant decision of the High Court of Australia in Bloch v Bloch [1981] HCA 56; (1994) 180 CLR 390, a man and his parents purchased a block of flats. The parents contributed about one third of the purchase price and the son provided the balance. The flats were then registered in the son’s name. It was agreed between the father and son that when the flats were sold, two thirds of the proceeds would be the son’s share and the rest would be the parents. Some years later, the son sold the flats but refused to account to his parents for the proceeds. The parents then sought a declaration that they were entitled to one third of the proceeds of sale. Wilson J who delivered the leading judgment with which Gibbs CJ and Murphy and Aickin JJ concurred, said at p.397:

“The facts present a classic illustration of the creation of a resulting trust. The property was conveyed into the name of the son, with the father having contributed part of the purchase price in circumstances which rebutted the presumption that the contribution was intended to advance or benefit the son. The contribution was not a gift. It was not a loan. The inference then arises that the father intended the son to hold the property in trust for him in a proportion corresponding to the proportion of the purchase price which was contributed by him.”

In the Australian textbook, Principles of the Law of Trusts (1990) by Ford and Lee 2^nd edition, the learned authors when discussing the presumption of a resulting trust, say at p. 973:

“Where two or more persons provide [the purchase money] and their relationship does not raise a presumption of advancement, there can be a resulting trust when they cause the legal title to be transferred to one, or some, or all, of them.

“Whhe legal tgal title is transferred to one of them, that person is presumed to hold on trust for the contributors. They are co-owners in equity. If their contributions were unequal, they are co-owners in equity as tenants in common in proportion to the amounts which each contributed.

“If their contributions were equal, it seems that, in the absence of legislation directly applicable, or which equity should apply when it ‘follows the law’, theyco-owners in equity as joint tenants. At common law where lere land was conveyed to several persons they took as joint tenants unless one of the four unities (of estate, time, possession and interest) was absent, or words of severance were used. But equity preferred to find a tenancy in common where possible. Equity drew a distinction according as to whether the contributions were unequal or not. If they were unequal; the co-owners were joint tenants at law but tenants in common in equity in shares proportional to their contributions. But where the contributions were equal, they were, in general, not only joint tenants at law but also joint tenants in equity. The reason seems to have been that equity thought that in the absence of inequality of contribution there was no sufficient reason for not following the law.

It is not clear whether there is really any satisfactory justification for equity to treat a case where there are equal contributions to the purchase price of property as giving rise to a joint tenancy between co-owners, and to treat a case where there are equal contributions to the purchase price of property as giving rise to a tenancy in common between co-owners. I would leave this point open for consideration in an appropriate case.

In applying the above statements of principles to the facts of this case, I am of the view that this is a clear case for the application of the presumption of a resulting trust. The plaintiff and the third party both contributed to the purchase price of the land at Savalalo in unequal shares. The plaintiff’s contribution was 357.50/500 of the purchase price and the third party 142.50/500. The third party contributed to the purchase price in the character of a purchaser. The money he paid was not a loan to the plaintiff or intended to be a gift to him. The exception provided by the presumption of advancement would not apply as the relationship between the plaintiff and the third party is not one which would give rise to that presumption. The plaintiff as registered legal owner, therefore, holds the land on a resulting trust in favour of the third party to the extent of the contribution made by the third party to the purchase price of the land. As their respective contributions to the purchase price of the land were unequal, they are co-owners of the land in equity as tenants in common in proportion to their respective contributions to the purchase price. Because the plaintiff and the third party are co-owners of the land as tenants in common, each one of them is entitled concurrently with the other to the possession, use and enjoyment of the land in a proper manner. One cannot oust the other from the land for that will be trespass.

In Butterworths Land Law in New Zealand (1997) by Hinde, McMorland & Sim, the learned authors say at para 9031:

“THE RIGHTS OF CO-OWNERS AS BETWEEN THEMSELVES. Because they have unity of possession co-owners are all concurrently entitled to use and enjoy the land....

“Where one co-owner has actually evicted the other and wrongfully prevented him or her from having the use of the land, the ousted co-owner can bring an action of trespass or an action for recovery of possession and for mesne profits.”

It should be clear from these statements of principles, that the action by the plaintiff to remove the third party from the land is not well founded. The plaintiff and the third party, having both contributed to the purchase price of the land as purchasers, the plaintiff, under whose name the land is registered, holds the land on a resulting trust in favour of the third party to the extent of the third party’s contribution to the purchase price of the land. As the respective contributions by the plaintiff and the third party to the purchase money were unequal, they are co-owners in equity as tenants in common in proportion to their respective contributions to the purchase price of the land. As tenants in common, the parties have certain rights as between themselves in relation to the land. Each of them is entitled, concurrently with the other, to the possession, use and enjoyment of the land in a proper manner. If one party ousts the other from the land, that will be trespass, for it will be interference with the right of the other party to possession of the land. The action by the plaintiff to remove the third party from the land must, therefore, be dismissed.

There is one other matter that came out of the plaintiff’s evidence I wish to deal with. The plaintiff expressed concern and dissatisfaction with the third party not having paid any rent up to now for occupation of the land since 1960 when the plaintiff left for American Samoa. Perhaps the plaintiff has expressed this concern so that if any compensation is awarded to the third party on the basis of his restitutionary counterclaim for unjust enrichment, such an award should be reduced by the fact that the third party has been in occupation of the land for 40 years rent free. In Jones v Jones [1977] 2 A11 ER 231, Lord Denning MR said at p. 235:

“First the claim for rent. It is quite plain that these two people were in equity tenants in common having a three-quarter and a one-quarter share respectively. One was in occupation of the house. The other not. Now the common law said clearly that one tenant in common is not entitled to rent from another tenant in common, even though the other occupies the whole. That appears from McMahon v Burchell (1846) 2 Ph 127 at 134 by Lord Cotlenham LC and Henderson v Eason [1851] EngR 939; (1851) 17 QB 701 at 720. Of course if one of the tenants let the premises at a rent to a stranger and received the rent, there would have to be an account, but the mere fact that one tenant was in possession and the other out of possession did not give the one that was out any claim for rent. It did not do so in the old days of legal tenants in common. Nor does it in modern times of equitable tenants in common....As between tenants in common, they are both equally entitled to occupation and one cannot claim rent from the other. Of course, if there was an ouster, that would be another matter; or if there was a letting to a stranger for rent that would be different, but there can be no claim for rent by one tenant in common against the other whether in law or in equity.”

In Butterworths Land Law in New Zealand (1997) by Hinde, McMorland & Sim, the learned authors say at para 9.031:

“Difficulties sometimes arise when one co-owner is in sole occupation of the land. Each co-owner has a right to the possession and enjoyment of the whole of the concurrently owned property, and it has been said that:

‘Considerations of justice and convenience have led to the recognition of the general principle that one co-owner cannot by failing to exercise his right of use and occupation establish a claim for compensation against another co-owner for the lawful exercise of his own legal right’: McCormick v McCormick [1921] NZGazLawRp 42; [1921] NZLR 384 at 388 per Salmond J.

“Therefore no co-owner who has failed to exercise his or her right of possession is entitled to claim rent from another co-owner even though that other occupies the whole of the land.”

From these statements of principles, it should be clear that the plaintiff’s concern and dissatisfaction with the third party not paying any rent while occupying the whole of the land is not legally justified. As one of the two co-owners of the land, the third party has a right to the possession and enjoyment of the whole of the concurrently owned land. And the plaintiff is not entitled in law or in equity to claim rent from another tenant in common for exercising his right to the possession and enjoyment of the whole of the land.

In respect of the plaintiff’s action to remove the defendants, who are two of the third party’s children, from the land, it is clear that they grew up on the land. Their parents, the third party and his wife, who is a sister of the plaintiff, left for New Zealand in 1984, but they come to Samoa twice a year and sometimes three times a year. The third party appears to have built four houses on the land and add two bedrooms to the three bedroom house which was bought by the plaintiff in 1958 and is still on the land. The plaintiff lives in American Samoa.

In my judgment, if the defendants are ordered to leave the land it would seriously affect, if not totally deny, the right of the plaintiff to the possession and to the use and enjoyment of the land. There will be no one to look after the land and the houses on the land to which the third party and his wife return to twice or three times a year from New Zealand. The houses and the land would be insecure without the defendants and the rights of the third party as co-owner and tenant in common to the use and enjoyment of the land would be seriously affected. The plaintiff’s action against the defendants must also be dismissed.

Finally, I pointed out to counsel that there are two ways to determine the tenancy in common in this case should the parties decide to take that course of action. The first is for one tenant in common to transfer his undivided share in the land to the other at an appropriate price. The second is for the parties or one of them to apply to the Court for a partition. Under section 140 of the Property Law Act 1952 (NZ) which still applies to Samoa, the Court has jurisdiction to order a sale in lieu of a partition. The proceeds of sale would then be divided between the parties on an appropriate basis. Counsel should look up the law on a partition of a tenancy in common or a sale in lieu of a partition for the legal principles that are relevant should the parties or one of them decides to seek from the Court an order for partition.

All in all then, the plaintiff’s action is dismissed. As the defendant’s counterclaim for unjust enrichment was also abandoned after a suggestion from the Court and after the plaintiff had called evidence in relation to the counterclaim, there will be no order as to costs.

CHIEF JUSTICE

Solicitors:
Kruse, Enari & Barlow for plaintiff
Fepuleai & Schuster Law Office for defendants and third party