In re application of Helen Wetzell [2002] WSSC 28 (13 February 2002)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

IN THE MATTER: of an application by HELEN WETZELL
of 18920 SW 96 Avenue, Miami, Florida 33157, USA, to remove Caveat No. 503
PLAINTIFF

AND:

IN THE MATTER: of REV. TUPE TIMOTEO
of Siusega, Minister of Religion
DEFENDANT

Counsel: Mr P. Fepuleai for Plaintiff
Ms M.V. Peteru for Defendant

Date of Hearing: 24 January 2002
Date of Decision: 13 February 2002

REASONS FOR DECISION

At the conclusion of the hearing on the 5th February I gave judgment for the plaintiff and made the following orders: -

1. the defendant is to vacate the said land within a period of six months;
2. Caveat 503 is to be removed forthwith
3. Counsels to file submissions as to costs.
   

I reserved my reasons to be delivered in writing. That I now do.

Case for the Plaintiff:

The plaintiff and her sister are the registered owners of lands at Siusega near Apia comprising some twelve and one quarter acres (12 acres 1 rood) where the plaintiff and her mother were residing before moving overseas. In December 1979 the plaintiff, her mother and her foster father were members of the Sinamoga youth group which travelled to New Zealand and the defendant who was at the time a Methodist Minister at Auckland, played host to the youth group. The youth group together with the defendant returned to Samoa on or about the 9th January 1980. Whilst in New Zealand the youth group fundraised to pay for their airfares but they were $25,000 short and the defendant paid the $25,000 outstanding airfares to the Air New Zealand office in Samoa.

In November 1981 the same youth group including the plaintiff and her mother travelled to the United States of America and when the group returned in December the plaintiff’s mother remained in the United States of America. The plaintiff returned to the United States of America in March 1982 and returned to Samoa in September 1985 to visit her sick mother who had returned to Samoa in 1984. Before the mother left the USA for Samoa in 1984 she had lodged an application for residence in the USA and she therefore, before her departure of the USA, sought permission to depart while her residency application was being processed. A copy of the application is tendered as exhibit “P2”.

When the plaintiff visited her sick mother in Samoa in 1985 the mother told the plaintiff that the defendant has been evicted from his leasehold at Taufusi and needed somewhere to stay temporarily and she has allowed the defendant to live rent free in temporary buildings on the plaintiff’s land. Upon inspection of her land then in 1985 the plaintiff saw a temporary open house and a Samoan hut (faleo’o). The plaintiff returned to the USA. The defendant has built a permanent home and a building for worship without the knowledge of the plaintiff. Through her solicitor the plaintiff requested and demanded the plaintiff in writing to remove all buildings and vacate the land.

Case for the Defendant:

The defendant, a minister of the Methodist Church hosted the Sinamoga youth group in Auckland in 1980 and he kept a diary recording the activities and events by the youth group during that visit. On the 15th January 1980 according to the diary entries the plaintiff, her mother and her foster father visited the defendant at his residence at Kumeu Auckland to request (NZ) $25,000 to pay the balance of the airfares for the youth group; the money to be treated as a personal loan to them; to be repaid by the three of them or in default of repayment the three of them will give portion of their land to the defendant. The plaintiff agreed with the arrangement there and then. On the 22nd January the youth group returned to Samoa and in the following week the defendant came with the $25,000 which he, the Sinamoga Methodist Minister and the plaintiff’s foster father paid to the Apia Air New Zealand office. He says that when he returned to Samoa in October 1980 he met with the plaintiff’s mother and foster father who showed him the land. At that time the plaintiff was employed by the President of the Methodist Church at Faleula.

On the 10th August 1982 the defendant dismantled his house from his leasehold and move onto the defendant’s land; and on the 13th August he constructed his house. Both the plaintiff and her mother did visit his house and he was also invited by the plaintiff’s mother and foster father to come and live with them. Since then he has built permanent buildings for living and for worship within the boundaries pointed out to him by the plaintiff’s mother and foster father and the plaintiff was fully aware of the construction of the permanent buildings.

Findings of Facts:

The fact that I was able to reach my conclusions and deliver my orders immediately after the completion of the trial would indicate that I had no difficulty whatsoever in deciding which evidence represents the truth. In the first place I accept that the plaintiff, her mother and foster father did not visit the defendant at his home at Kumeu, Auckland on the 15th January 1980 and requested NZ$25,000 because the youth group arrived back in Samoa on the 9th January 1980 as confirmed by the official stamps on the plaintiff’s passport. The entries therefore in the defendant’s so called diary (a 1976 Collins Diary) which recorded the visit by the plaintiff and her parents on the 15th January 1980 cannot be accurate. Similarly all the entries from the 15th January to be 22nd January as recording the activities of the youth group in Auckland cannot be true. After all the entries in the diary as the defendant admitted were not made by the defendant himself but by his daughter. And a close perusal of the last sentence in the entry of the 15th January creates suspicion and draws an inescapable conclusion that it was a late addition and the handwriting deliberately made smaller (compared to the rest of the entries) to fit into the available space. That last sentence reads (in my translation from Samoan to English):

“Pepe (plaintiff’s mother) questioned Helen (the plaintiff) at that time whether she agreed, and the answer was whatever you parents agree to I will abide accordingly.”

As a result of my finding of facts I accept that the plaintiff did not request from the NZ$25,000 to pay the balance of the airfares for the Sinamoga youth group; and accordingly I accept the version given by the plaintiff that neither she nor her parents requested the $25,000 which money was offered by the defendant himself to the Sinamoga Congregation when he came with the group to Samoa and during the church service which the defendant conducted at Sinamonga. Indeed it is difficult to imagine why the plaintiff and her parents should commit themselves to be responsible for a liability which is not theirs; and although the same premise can also be said of the defendant the issue here is not who was responsible for the payment of the balance of the outstanding airfare but whether the plaintiff did request or agreed to the $25,000 advance and to hold out her land as security.

Secondly I do not accept from the testimony of the defendant and from the entry in the diary that the plaintiff and her mother were on the land in August 1982 when he moved on to the land and constructed his house. It will be noted from my earlier remarks that I have grave doubts about the diary entries. In fact I draw the conclusion that the testimony of the defendant, a 79 year old Methodist Minister cannot be believed. According to the plaintiff she travelled with her mother to the United States of America in November 1981 and the mother remained in the United States until 1984. Confirmation of the evidence of the plaintiff is provided by a copy of an application by the plaintiff’s mother to leave the United States while her residency application was considered by the US authorities. I also accept the plaintiff left Samoa for the United States in March 1982. As a consequence I reject the evidence by the defendant that he moved onto the land in August 1982, but I accept that the plaintiff’s mother visited Samoa in 1984 and gave permission for the defendant to occupy the land temporarily, so that when the plaintiff came to Samoa in 1985 the defendant had constructed a temporary shelter on the land. And when the plaintiff again left Samoa for the United States of America the defendant was living on the land in a temporary shelter, so that when the defendant built his permanent buildings the plaintiff was in the USA.

In totality then I reject the evidence of the defendant and accept the testimony of the plaintiff. The defendant has no caveatable interest in the land. On the question of costs, the defendant has filed no memorandum.

The plaintiff had to travel from the United States of American for the purpose of this hearing and I agree with her counsel that she should be reimbursed for her airfares for her round trip from Miami USA amounting to US$1,432.60.

The defendant is accordingly ordered to pay US$1,432.60 and solicitor’s fees on the summons of $88.60.

JUSTICE VAAI