Tiavolo v Board of Trustees of the Congregational Christian Church of Samoa [2001] WSSC 7 (14 March 2001)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

IN THE MATTER: of the Declaratory Judgment Act 1988

BETWEEN:

SEUMANUTAFA TIAVOLO
of Apia, Samoan Matai
APPLICANT

AND

THE BOARD OF TRUSTEES OF THE CONGREGATIONAL
CHRISTIAN CHURCH OF SAMOA,
a duly incorporated body registered pursuant to the Charitable Trusts Act 1965.
RESPONDENT

Counsel: Mr P. Fepuleai for the Applicant
Dr D.M. McMarland & Mr T.V. Eti for the Respondent

Date of Hearing:18 & 19 April 2000
Date of Decision: 14 March 2001

DECISION OF JUSTICE VAAI

In these proceedings the plaintiff' is seeking several declamatory orders namely:

(i) a declaration that the condition of Court Grant 35 has failed by virtue of the current use of the land.

(ii) a declaration that, as a consequence of the failure of the condition of the Court Grant, title to the land, or part thereof, has reverted back to the plaintiff.

(iii) A declaration that the plaintiff is the lawful owner of the land or part thereof, the subject of Court Grant 35.

The plaintiff also seeks an order that the defendant takes all steps and does all things to convey to the plaintiff legal title to the land or part thereof.

Court Grant 35

In 1856 Seumanutafa, a chief of the village of Apia, sold to Archibald Wright Murray, a missionary of the London Missionary Society, customary land in the township of Apia. To formalise the sale a Court Grant was necessary as this would convert the land from customary status to a freehold title, and in 1893 on the application of the London Missionary Society and with the apparent consent of Seumanutafa the Supreme Court of Samoa granted the following Court Grant.

"SUPREME COURT OF SAMOA

TO ALL AND SINGULAR TO WHOM

These presence shall come greeting:

BE IT KNOWN by these presence that under Article IV of the Final Act Of the Conference of Berlin on Samoa Affairs of June 14, 1889:the London Missionary Society has been duly declared a proprietor of all that parcel or lot of land situated in the municipal district of Apia Island of Upolu containing by add measurement one acre 2 roods and 18 perches more or less:

Bounded towards the North by the lands of Seumanutafa and the L.M. Society towards the East South and West by Seumanutafa's land: as all the aforesaid boundaries are more particularly shown and delineated on the plan herewith; the ownership being subject to the conditions that the lands shall not be resold to any person or persons unconnected with the London Missionary Society but that when the land shall no longer be required for the use of the agents of the said Society, it shall without the buildings thereupon revert to the vendor Seumanutafa, his heirs or assigns:

IN TESTIMONY WHEREOF I have caused these Letters to be made Patent and the Seal of the Court be affixed.

WITNESS my signature this Twenty-Fifth day of August in the year of Our Lord One Thousand Eight Hundred and Ninety-Three:

(Signed C. Cedercrants)
Chief Justice"

The grant of the fee simple is subject to two conditions namely:

(a) that the land shall not be resold to any person unconnected with the LMS; and

(b) when the land is no longer required for the use of the agents of London Missionary Society, the land shall without the buildings revert to the vendor, his heirs or assigns.

Plaintiff's Claim

The proceedings were commenced by the plaintiff on the 3^rd July 1998 by filing a statement of claim. A summons dated 13^th July was issued. A notice of motion dated the 3rd July and supported by affidavit was also filed. The affidavit virtually repeats facts stated in the Statement of Claim. Both the motion and the Statement of Claim allege that the condition of Court Grant 35 has failed by virtue of the current use of the land. In particular it is alleged:

(i) that the defendant has undertaken certain developments upon the land the subject of the Court Grant; including a six storey building and an adjoining car park and these developments are of a commercial nature and are unconnected with the use of the land as contemplated by the Court Grant.

(ii) that built on part of the land is a house occupied by the Apia Protestant Church which has no Constitutional Connection with either the defendant, the Council for World Mission or the London Missionary Society.

Neither the Notice of Motion nor the Statement of Claim is alleging that the defendant is unconnected to the London Missionary Society. In fact it is alleged in paragraph 6 of the supporting affidavit and paragraph 6 of the Statement of the Claim that the Congregational Christian Church is the Samoan Church of the London Missionary Society and in 1968 the London Missionary Society changed its name to Congregational Christian Church of Samoa. For convenience the London Missionary Society will be referred to as the LMS and the Congregational Christian Church of Samoa will be referred to as the CCCS.

In fact the plaintiff did not challenge or adduced evidence or even suggested during the examination of his witnesses that the C.C.C.S. has no connection to the LMS. Although the defendant has produced considerable evidence of the link between the London Missionary Society and the C.C.C.S. the issue is really not in contention between the parties. In fact it is almost too obvious to need stating that the LMS which was set up in the 1830s with the arrival of John Williams (a London Missionary) changed its name to the CCCS and the CCCS carried on and continued the same work initiated by the LMS.

It has also been explained in evidence by the plaintiff that the move to change name from LMS, to CCCS was part and parcel of the process to depart from the Colonialism mentality and to hand over the management of the originally European Organised Church to the Samoan people. And it was in 1962 (the same year Samoa became an independent nation) that the Annual General Meeting resolved to change the name to CCCS and a constitution was put in place. Clause 1 of the constitution states:

"Since the arrival in Samoa of John Williams, the first Missionary to bring to us the Gospel, the church has been known by the name of the LMS. Such has been the position since the year 1830. But by mutual agreement with the Society in May 1961, the General Assembly decided to change the name to that which is given above."

The Society referred to in the last sentence is the LMS.

In his submissions, Counsel for the plaintiff contends that the relationship between the CCCS and the LMS had diminished. I understand from the submission that although a relationship between the LMS and the CCCS still exists, such a relationship has fizzled down and he attempts to emphasise the breakdown by comparing article 6 of the 1962 Constitution of the CCCS (Exhibit D9) with part IV of the 1995 Constitution (Exhibit D10). With respect to counsel, I am obliged to differ; I am at a total loss to comprehend the submission and accordingly I am not persuaded by the plaintiff’s contention. In summary the CCCS came into existence because of the LMS; it succeeded the LMS in 1962 when subsequent to the change of name it took over the Management of the Church and inherited all the real and personal properties of the LMS.

The First Condition of Court Grant

The first condition of the Court Grant is that the land shall not be resold to any persons unconnected to the LMS. Counsel for the plaintiff in his written submissions argues firstly that the CCCS is only historically but not sufficiently linked to the LMS and secondly that the land was sold by deeds of conveyance to the CCCS in contravention of the Court Grant. I have already dealt with the evidence surrounding the relationship and connection of the LMS to the CCCS and I have reached the clear and unreserved conclusion that the LMS and the CCCS are (contrary to the mistaken views of the plaintiff) closely linked. I accept in full the evidence of Oka Fauolo (the current deputy chairman of the CCCS and chairman in 1978 when the land was conveyed to the CCCS) that the CCCS and LMS differ only in names but they have the same theology and principles. Accordingly the first submission must fail and as a consequence the deeds of conveyances to the CCCS did not contravene the first condition. Concerning the second submission that the land was sold to the CCCS by the LMS the short answer to the submission is that all the land acquired by the LMS prior to 1962 were all transferred over to the CCCS when the name changed from LMS to CCCS. The land in dispute was transferred by deed dated the 2nd March 1978 from the Council for World Mission as the legal successor of the LMS Corporation to the defendant as the legal arm of the CCCS and expresses no valuable monetary consideration at all so that the transfer cannot be regarded as a sale. The allegation by the plaintiff fails.

The Second Condition

It is argued by the plaintiff that the land is no longer required for the use of the agents of the Society and the plaintiff relies on the several uses which he says is not for church purposes.

Firstly there is the home of the Minister of the Apia Protestant Church built on the land and the plaintiff argues that the Apia Protestant Church has no constitutional connection with either the CCCS, the Council for World Mission or the LMS, as it is a theologically and administratively a separate entity. But the Protestant Church according to the defendant was the worship centre for the expatriate missionaries of the LMS. And the manse was used by the Missionaries from overseas for living quarters. It was the place where Church Services were conducted in English. It also provided a school for the children of the expatriate Missionaries from the 1880's to 1959. Ministers and teachers for the Protestant Church and School were provided by the LMS. With the change of name and management in 1962 the CCCS continued to provide ministers for the Protestant Church. It is still the English speaking version of the CCCS and still contribute financially every year like every other congregation of the CCCS. Its current Minister was a lecturer and the Ordained Minister of the CCCS theological college at Malua. There has therefore for long period of time an acquiescence by the vendor himself and his family to the existence of the Protestant Manse on part of the land due to the integral close link of the Protestant and the CCCS.

In any event the Manse as the defendant in my view correctly submits is the home of one of the ordained minister of the CCCS while he serves as the Minister of the Protestant Church. The allegation by the plaintiff must accordingly fail.

Secondly the plaintiff alleges that the defendant has undertaken several commercial developments in the nature of a six-storey building and an adjoining car park on the land; and these uses he says are those not contemplated by the Court Grant. He submits that the grant be considered in the charitable context at the time it was made; it consequently is to be interpreted in the context of overseas missionaries needing a base for religious teachings. In other words the plaintiff is of the belief that the use of the land should be restricted to personal occupation by the church or for church purposes only such as church offices or a place of worship. The submission in my view tantamounts to saying that the church should not be concerned with generating income through the use of its land. But the church needs income to function and to limit the meaning of use as submitted by the plaintiff will be contrary to sound concepts and common sense. Monetary income beyond that provided by the congregations is required to fund church activities and projects. The LMS did set up several schools in Samoa including the Protestant School, Malua Theological College, Leulumoega and Papauta Colleges. It therefore makes sense for the church to use the land to derive income to advance the purposes of the church In any event the six storey is built primarily on adjoining lands owned by church and only a comparatively small portion of the building encroaches onto the disputed land. The allegation must also fail.

Thirdly the plaintiff alleges that three of the buildings erected on neighbouring sites owned by the church encroach onto the disputed land. One of these buildings is the home of the minister of the CCCS and the other building used to house the printing press of the CCCS. As these two buildings are used by the CCCS they are therefore not a breach of the condition of the grant. The third building is leased to the Electric Power Corporation and following my reasoning already given in relation to the six-storey building and the adjoining Car Park this allegation must also fail.

Having reached the conclusion that the defendant has not breached the two conditions of the court grant, it is therefore unnecessary for me to consider whether at the time the Court Grant was made the rule against perpetuities applied in Samoa since any views I express will be obiter dicta. Suffice however to state that the grant was made by the Supreme Court pursuant to the powers granted to it by the Final Act of the Conference of Berlin on Samoan Affairs 1889. The English Common law did not apply in Samoa then.

I give judgment for the defendant. The motion for declaratory orders is dismissed and the statement of claim is also dismissed.

The defendant is entitled to costs. Each party is at liberty to lodge no later than 4.00 p.m. on 23/03/2001 submission as to the quantum of costs.

JUSTICE VAAI