Parker v Lo [2000] WSSC 6 (24 May 2000)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

MAUPENEI PARKER
Plaintiff

AND:

FOLASAITU MEKI LEE LO
Defendant

Counsel: Mr P. Fepuleai for the Plaintiff
Mrs R. Drake for the Defendant

Hearing: 17 February 1999
Judgment: 24 May 2000

REASONS FOR JUDGMENT OF WILSON, J

The subject-matter of the dispute between the plaintiff and the defendant is a piece of land upon which the defendant and/or members of his family erected a two-storey building. The piece of land in question (hereinafter referred to as “the land”) is all that piece or parcel of land containing an area of one rood and thirty six perches (0a.1r.36p) more or less situated at Fugalei near Apia in the District of Tuamasaga described as Parcel 355, being part of Parcel 260 and the whole of Parcel 268, Flur IV, Upolu and part of the land registered in Volume 32 Folio 198 of the Land Register of Samoa as the same is more particularly delineated on Plan 5774 deposited in the office of the Director of Lands, Apia.

The land was originally part of the estate of the late Toamalama Leoso deceased who died on or about 3^rd October 1975. In the will of the deceased dated 9^th August 1975 he gave devised and bequeathed his “freehold property situated at Fugalei near Apia” which he had acquired from the estate of the late Louisa Trood deceased unto his Trustee, the Samoan Public Trustee (Western Samoa), “upon trust (1) to partition and convey an area of two acres thereout to (his) cousin Pagia Wilson of Fugalei aforesaid for his life and after his death in remainder to all of his children born of his marriage with his wife Mesepa in equal shares as tenants in common....”

On 29^th October 1993 by a Deed (Exhibit P2) the Samoan Public Trustee conveyed unto Elizabeth Leiataua of Fugalei; William Wilson also known as Bill Wilson of Fugalei; the plaintiff (Maupenei Parker of Fugalei); Amerika Wilson of Auckland, New Zealand; and Ofa Samuelu of Auckland, New Zealand (called “the devisees”), the only children of the marriage of the late Pagia Wilson deceased with his wife Mesepa, “all that the lands described in the Schedule (to that Deed) to hold the same unto the devisees in equal shares as tenants in common.” The land described in the Schedule to that Deed included “all that piece or parcel of land containing an area of one acre one rood and twenty perches (1a. 1r. 20p) more or less situated at Fugalei near Apia in the District of Tuamasaga described as Parcel 260 ....” and “all that piece or parcel of land containing an area of one rood (0a. 1r. 00p) more or less situated at Fugalei near Apia in the District of Tuamasaga described as Parcel 268 ....” That conveyance was registered on 23 November 1993.

The plaintiff purchased parcel 355 from her brother, William Wilson also known as Bill Wilson.

On 28^th June 1994 by a Deed (Exhibit P3) the devisees, having agreed to partition equally between them the land more particularly described in the First Schedule thereto and having agreed to convey to the plaintiff by way of partition the land more particularly described in the Second Schedule thereto, conveyed and partitioned unto the plaintiff “all that the land more particularly described in the Second Schedule thereto to hold the same unto (the plaintiff) her executors administrators and assigns forever.” The land described in the Second Schedule was “all that piece or parcel of land containing an area of two roods and naught point six perches (0a. 2r. 00.6p) (2039 M²) more or less situated at Fugalei near Apia in the District of Tuamasaga described as Parcel 354 being parts of Parcels 260, 270 & 271 ....” and “all that piece or parcel of land containing an area of one rood and thirty six perches (0a. 1r. 36p) (1922 M²) more or less situated at Fugalei near Apia in the District of Tuamasaga described as Parcel 355 being part of Parcel 260 and the whole of Parcel 268 ....” Thereafter the two parcels (Parcels 354 and 355) were registered on 17^th August 1994.

It was alleged in the statement of claim that the defendant continues in unlawful occupation of the land and refuses to remove his buildings therefrom. The plaintiff seeks inter alia an order that the defendant and members of his family vacate the plaintiff’s land, an order that the defendant and members of his family remove all buildings and belongings on the land, and other ancillary orders.

In the statement of defence the defendant inter alia denied that he is and has continued to be in unlawful occupation of the land. In his counterclaim the defendant claimed that the land “was given to the defendant by the late Toamalama Leoso himself in 1975” and “that, during subsequent meetings of the beneficiaries of the estate the late Toamalama Leoso, they all agreed that the defendant should have the said land.” Further, the defendant claimed, in his counterclaim, that more than $100,000.00 had been expended “to reclaim the land as it was mainly mangrove in its original form.”

The documentary evidence that was placed before the Court was an affidavit in support sworn by the plaintiff on 14^th July 1998 (Exhibit P1), the deed dated 29^th October 1993 (Exhibit P2), the deed dated 28^th June 1994 (Exhibit P3), the copy of the deceased’s will executed on 9^th August 1975 (Exhibit D1), a marked and coloured copy of plan Number 3104 (Exhibit D2), the caveat dated 5^th December 1995 relating to “all that piece or parcel of land containing an area of one rood and thirty six perches (0a. 1r. 36p) (1922M²) more or less situated at Fugalei near
Apia in the District of Tuamasaga described as Parcel 355 being part of Parcel 260 and the whole of Parcel 268 ....” (Exhibit D3), and an un-marked and un-coloured copy of plan number 3104 (Exhibit D4).

The oral evidence was given by the plaintiff, the defendant, Masoe Filisi Kruse, Moira Lee Lo and Teresa McCarthy.

Some issues of credibility arise in this case and I shall deal with those issues shortly.

But first I indicate my finding that the evidence of Masoe Filisi Kruse and the other defence witnesses simply failed to prove that the deceased ever made a gift to the defendant of the land or that, during any meeting (or meetings) of the beneficiaries of the deceased’s estate, it was agreed that "the defendant should have the land."

I assess the plaintiff to be an honest and reliable witness. Her affidavit (Exhibit P1) sets out the history of the land and contains a number of other factual matters. I accept the implication arising from her evidence to the effect that the two-storey house was not built until in or after 1980 and certainly some years after the date of the death of the deceased Toamalama Leoso. She confirmed the defendant’s evidence to the effect that the defendant had been allowed to stay on the land so that he could be close to his work. She confirmed the defendant’s evidence to the effect that the defendant had “lived there for many years” and that “this family lived there when they needed land to stay, because Lee Lo had to work”. She disputed that, with the exception of where the house was built, “a great deal of reclamation” had been done by the defendant. She was adamant that neither the defendant nor others on his behalf spoke to her “on three separate occasions” to remind her that “a quarter acre” had been gifted.

I was not impressed by the defendant as a witness. I simply did not believe him when he said that he started the reclamation of the subject land as early as 1972 and 1973 and when he said that the late Toamalama Leoso “instructed” the defendant and his family “to build a house” on the subject land. In explaining the reason for building the house he gave an incredible explanation; he said that it was their “understanding that (the deceased) had given (the subject land)” to them. When asked to indicate who was present at the time the deceased “told (instructed)” the defendant and his family “to build a house on the land”, he said “Masoe Kruse”; unfortunately, from the defendant’s point of view, Masoe Filisi Kruse, when he gave evidence, did not corroborate the defendant on that issue.

Another issue important to the assessment of the defendant’s credibility was the question of whether the deceased had said to the defendant, after the visit to the office of Mr Jackson, the solicitor, that he “had already given a present to the children of Pagia (i.e. the two acres) but that, where (his) house is located, (he’ll) have to wait until everything is divided up, (that is when) it will be transferred to (him).” Once, again, Masoe Filisi Kruse did not corroborate the defendant.

I should not (and do not) place any reliance upon (and put out of my mind) some evidence, which, in my judgment, was inadmissible, as to what was allegedly said at a meeting held in 1988 “when Elisapeta (is said to have) related that, where (the defendant’s) son has located, (that land) had already been given to them by Tavae”. This was either hearsay evidence or evidence lacking the necessary ingredients of an admission.

I simply did not believe the defendant when he suggested that the two-storey house was built in 1972 “for (his) son Raymond” when Raymond was only aged 11 or 12.

Some evidence of the defendant which I do accept was directed to the value of any improvements made to the subject land and, therefore, to the potential issue of unjust enrichment, but, because his evidence was not supported by written evidence in the form of a building contract or invoices, statements or receipts or the like, which must have been in existence at the time of and after the house was built, his oral evidence on this topic would need to be substantially discounted.

Had the deceased, to the defendant’s knowledge, truly “given (the subject land) to the defendant” and had the beneficiaries of the deceased’s estate truly “agreed at a meeting of the beneficiaries subsequent to the date of death (in 1975)” that the defendant “should have the subject land”, one would have expected him to have gone to see the Public Trustee quickly and to have lodged a caveat well before he did. The caveat here (dated 1995) and the counter-claim in these proceedings (instituted in 1998) have all the hall-marks of recent invention on the part of the defendant.

The defendant’s wife, Moira Lee Lo, was also a witness who did not impress me. She made a series of assertions, but she seemed to have difficulty in giving evidence of facts or conversations. Her evidence-in-chief to the effect that the deceased sometime before his death in 1975, when her son, Miki, was less than 8 years old, said “This (the subject land) is the land which should be for this boy because he likes to fish for crabs” was a statement of intent, at its highest, and far from convincing evidence to prove a gift.

Moira Lee Lo’s evidence had probative value when she testified to the deceased having gone to Mr Jackson’s office in 1975, but her evidence then was that the deceased “told (her) to wait inside the car while (he went) inside”. When the deceased came out of the office “30 minutes (to an) hour” later, the deceased, according to her, said to her “that he had made a gift to the children of Afoa Pagia - 2 acres” and that “that gift was done together with the ¼ acre (he had) given to (her) son”. This too was some evidence which was not confirmed by the credible witness of high standing viz. Masoe Filisi Kruse. But, even in so far as she had testified to a gift having been made, that evidence was undermined, to an extent, by her own further evidence to the effect that, when she had asked the deceased why the “gifted” land was not “under (her) name”, he told her “to wait till other matters were done and he told her “not to worry and to wait till after it (was) subdivided” and he told her “not to worry about it, because (her) house was already on this land and (she) should wait for it was for (herself) and (her) children”.

It has not been proven on the balance of probabilities by the defendant that the land “was given to the defendant (and his wife) by the late Toamalama Leoso deceased himself in 1975” or at anytime. Had the defendant’s sworn evidence been supported or confirmed, then I might have found the defendant’s allegation proven, but no corroborative evidence was placed before me and, in any event, I did not accept the defendant as a witness of truth. The evidence left me with the distinct impression that the deceased not only was a generous person but also was one who was inclined to speaking frequently of his thoughts regarding his land, but these were mostly no more than statements of intent. I am unable to find that the house was built “in 1958” or, for that matter, at any time during the deceased’s lifetime.

I find that the reclamation of the subject land did not commence in 1972 or 1973, as contended for by the defendant, but did commence in about 1980. I find that the deceased did not give “instructions to (the defendant) to build a house for (his) children”.

I am satisfied on the balance of probabilities that the deceased did not say, after he had been to the office of Mr Jackson’s legal office, either to the defendant or to Mr Kruse, or to both of them, that he “had already given a present to (the defendant or his family)” of the subject land. It would have been otherwise if the will had borne out what the defendant had said. I am further so satisfied that the defendant and his family did not reclaim the whole of the subject land, but rather reclaimed only the area in the near vicinity of where the two-storey house was built.

The evidence in support of a claim for unjust enrichment was largely given by the defendant himself. He said that the reclamation work for the area where the two-storey house was built took about 5 to 6 years. The rest of the area of the subject land (shaded in blue on portion of Parcel 268 in Exhibit D2) “is still swampy”. Where the house is: “that is what I built up”. The depth of the reclamation is approximately 2½ metres. The total cost of the reclamation (at $30 per load and $12 per truck was “$80,000.00 (tala) or more”. But, when cross-examined on this, he acknowledged that the “$80,000.00” was his “estimate of the price of things at that time”. According to the defendant, the two-storey house “cost $64,000.00 or more” to build.

The claim for an order that the plaintiff convey the disputed land to the defendant on the basis of proprietary estoppel fails. Applying the law in Rosita Meredith & Others v Pualagi Pa’u unreported decision of Sapolu CJ - dated 26 April 1995 - to the facts of this case, there was neither estoppel by encouragement nor estoppel by acquiescence here. It was not proven by the defendant that the plaintiff, against whom the equitable relief known as proprietary estoppel was made, “encouraged” the defendant to believe that he would acquire an interest in the subject land or “acquiesced” in the defendant’s expenditure of money and labour. It was not proven by the defendant that the plaintiff created or “encouraged” or “acquiesced” in an expectation or belief or understanding by the defendant that the fee simple in the disputed land would be conveyed to him. I have emphasised the words: “the plaintiff”.

I now turn to the claim for unjust enrichment. It is clear that the defendant and his family were granted something in the nature of a revocable license to live on the land. During the early years of the defendant’s stay on the land money and hard labour were expended and applied in reclamation work on the land and the erection of a house. In my judgment such circumstances are capable of prima facie raising an equity in favour of the defendant as licensee for this reclamation and construction work he carried out. As Sapolu CJ put it in Rosita Meredith & Others v Pualagi Pa’u supra (at p.43):

“... the equity is in the nature of a license which will be unconscionable for (the person granting the license) to revoke without payment of appropriate compensation.”

The claim for unjust enrichment was expressed in the Statement of Defence as a claim for “payment of $150,000.00 to the defendant for reclaiming the land” arising out of an earlier pleading (in paragraph 12) to the effect that “the plaintiff (sic)” had “expended more than $100,000.00 to reclaim the land as it was mainly mangrove in its original form.”

This claim, even if amended so as to substitute “the defendant” for “the plaintiff” in paragraph 12, is misconceived. The law of unjust enrichment, as it applies in Samoa, was laid down in Elisara v Elisara [1994] WSSC 14, an unreported judgment of this Court delivered on 22 November 1994, and then in Public Trustee v Foketi Brown and Others, an unreported judgment of this Court delivered on 24 January 1995. In his judgment in this last-mentioned case, which was described in Misileti Tufuga Fatu v Siaosi Leavasa [1998] WSSC 8, an unreported judgment of this Court dated 14 May 1998 (at p.3), by Bisson J as “a scholarly judgment”, Sapolu CJ said (at p.21):

“The three requirements for unjust enrichment as stated by Dickson CJ [in the Canadian case of Pettkus v Becker (1980) 2 SCR 834] may be listed as (1) enrichment to the defendant; (2) a corresponding deprivation to the plaintiff; and (3) the absence of any juristic reason for the enrichment.”

Transposing the names of the parties so as to have them apply to the circumstances of the present case where the so-called claim for unjust enrichment arises on the counter-claim, I ask myself the following questions:

(a) Has the plaintiff been enriched?

(b) Has the defendant experienced a corresponding deprivation?

(c) Is there an absence of any juristic reason for the enrichment?

The answer (in the negative) to question (a) exposes the fallacy in the defence argument. Assuming arguendo that the defendant experienced a deprivation in that he incurred the expense of (or expenditure associated with) reclaiming the land, the person who was thereby enriched was the deceased or his estate. Any claim in restitution for unjust enrichment made by the defendant ought therefore to have been made against the deceased during his lifetime or against the Public Trustee after the death of the deceased, provided that such a claim was not statute-barred.

That the land in question has been transferred illustrates the parlous position the defendant finds himself in through not apparently pursuing a claim for unjust enrichment against the Public Trustee. What is clear is that the plaintiff is not liable for such a claim.

The learned Chief Justice, in Public Trustee v Foketi Brown & Others supra, stated (at p.22):

“The function and purpose of the law of restitution is thus restoration; it is to disgorge from a defendant unjust benefits and ill-gotten gains and restore them to the plaintiff who has suffered a countervailing deprivation.”

(The emphasis is mine).

Here the plaintiff (who is the defendant on the counterclaim) has not received either “unjust benefits” or “ill-gotten gains”. The plaintiff received what she was entitled to when she purchased part of parcel 355 from her brother and when the Deed (Exhibit P3) was executed in 1994.

For these reasons the claim for unjust enrichment does not succeed.

There will be orders:

(1) that the defendant and members of his family vacate the plaintiff’s land within 60 days from the date of this order.

(2) that the defendant and members of his family do within the said period remove all buildings and belongings on the plaintiff’s land.

(3) that the question of costs be reserved for further consideration, each counsel to file submissions in writing within 14 days if the question of costs has not in the meantime been resolved and agreed.

(4) that further consideration of the plaintiff’s prayers for relief be adjourned.

(5) with liberty to either party to apply upon 48 hours notice to the other party.

Each of the claims set out in the defendant’s prayer for relief fails.

JUSTICE WILSON