Meredith v Manoo [2002] WSSC 51 (11 October 2002)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

IN THE MATTER of the Land Registration Act 1992/1993.

BETWEEN

RUDY MEREDITH and MEILAN MEREDITH
of Siusega, Businessman and Businesswoman, respectively.
Plaintiffs

AND

SAULEALIA AFATO IOANE MANOO, Domestic Duties,
SEMI AFATO IOANE, Mechanic,
SOFIA ATOA, Domestic Duties,
JOE AFATO, Mechanic;
all of Togafuafua and
LEA ALE (nee IOANE MANOO) Retired, and
IUSITINA GOSCHE a.k.a. FOLOI GOSCHE (nee IOANE MANOO) Widow;
both of Auckland, New Zealand.
Defendants

AND

JACK CHADWICK
of Luatuanuu, Retired.
Third Party

Counsel: HJ Schuster for plaintiffs
TV Eti for defendants
A Roma for third party

Hearing: 11, 12, 13, 19 September 2002
Judgment: 11 October 2002

JUDGMENT OF SAPOLU CJ

For convenience and ease of understanding, I will in this judgment deal with this case under two Parts. Under Part A I will deal with the plaintiff’s claim against the defendants and the defendants counterclaim against the plaintiffs. Under Part B I will deal with the defendants claim against the third party. This will involve some repetition in the evidence but to do otherwise would lead to difficulties in following the issues which are involved.

PART A

Plaintiffs claim against defendants and defendants counterclaim against plaintiffs

The land which is the subject of the present proceedings used to be owned by the Roman Catholic Bishop of Samoa. It is just less than a quarter of an acre and is situated at Togafuafua in the Apia town area. It is described in the land register in the Office of the Director of Lands as:

ALL that piece or parcel of land containing an area of thirty perches (0a.0r.30p) more or less situated at Togafuafua in the District of Tuamasaga, described as parcel 651 Flur I, Upolu being part of the land registered in VOLUME 8 FOLIO 24 of the Land Register of Samoa as the same is more particularly delineated on Plan 3531 deposited in the Office of the Director of Lands in Apia.

In 1998 the third party, Mr Jack Chadwick, purchased the land from the Roman Catholic Bishop of Samoa for $80,000. The third party then wanted to sell the land and on 3 August 1999 he entered into a sale and purchase agreement with the plaintiffs, Mr and Mrs Meredith, as purchasers. On that same day the plaintiffs paid to the third party the sum of $100,000 which was made up of $10,000 for the deposit and part payment of the purchase price and $90,000 just for part payment of the purchase price. The purchase price of the land was $450,000. Five or six weeks later, which would be the second week of September, the plaintiffs paid off the balance of the purchase price of the land. There was a delay in having the deed of conveyance from the third party to the plaintiffs registered as at that time the deed of conveyance from the Roman Catholic Bishop to the third party had still not being registered. During that delay the defendants Sofia Atoa and Lea Ale learnt of the sale of the land by the third party to the plaintiffs and they lodged caveats against the title to the land prohibiting any further dealings with the land. In June 2001 this Court heard and dismissed an application by the plaintiffs to remove those caveats on the ground that in the circumstances existing at that time they had no locus standi to bring the application as they had no interest shown on the land register in the land.

Subsequent to that decision of the Court, the deed of conveyance from the Roman Catholic Bishop to the third party and the deed of conveyance from the third party to the plaintiffs became registered. In the present proceedings when the Court asked counsel for the plaintiffs how the said deeds become registered he said it was done under s.25 of the Land Registration Act 1992/1993 when the defendants Sofia Atoa and Lea Ale failed to reply to a notice served upon them by the registrar of lands under that provision. Section 25 insofar as relevant provides:

“...........every caveat shall upon the expiration of 14 days after notice given to the caveator that application has been made for the registration of any instrument affecting the land, estate or interest protected thereby, be deemed to have lapsed as to such land, estate, or interest, or so much thereof as is referred to in such notice, unless notice is within the said 14 days given to the Registrar that application for an order to the contrary has been made to the Supreme Court or a Judge thereof, and such order is made and served on the Registrar within a further period of 28 days.”

I assume from what counsel for the plaintiffs told the Court that the necessary application was made to the registrar of lands which caused him to serve notice in terms of s.25. The defendants Sofia Atoa and Lea Ale must also have failed to respond to that notice as required by s.25 and as a consequence their caveats lapsed. Counsel for the defendants did not make an issue of this matter. I will therefore proceed on the basis that the deed of conveyance from the third party to the plaintiffs has been duly registered as the caveats that were lodged have lapsed under s.25. The plaintiffs are therefore the current registered owners of the land.

The defendants Lea Ale and Iusitina Gosche are half sisters of the third party Mr Chadwick being of the same mother but different fathers. They all grew up on the disputed land but Lea Ale and Iusitina Gosche have now been living in Otara in Auckland, New Zealand, for a number of years. The defendant Saulealia Afato Ioane is the wife of Afato Ioane who was a full brother of the defendants Lea and Iusitina and a half brother of the third party. The defendants Semi Afato Ioane and Sanele Afato Ioane are sons of the defendant Saulealia Afato Ioane and her late husband. The defendant Sofia Atoa is a daughter of the defendant Saulealia Afato Ioane and her late husband. As for the defendant Joe Atoa it is not clear where he comes into this case or whether he has any locus standi to be cited as a defendant. When the defendant Saulealia married her late husband Afato Ioane they lived on the land. Their children which include the defendants Semi, Sanele and Sofia all grew up on the land. When Afato Ioane passed away in 1993 Saulealia remained on the land with her children. She is still living on the land. The third party had also lived on the land before he sold it to the plaintiffs.

As already mentioned, the land was owned by the Roman Catholic Bishop. Ioane Manoo the step father of the third party and the natural father of the defendants Lea, Iusitina and their deceased brother Afato first lived on the land in about 1930. The defendants testified that they occupied the land as lessees at a monthly rent as they were Roman Catholics. The land was swampy and the defendants said Ioane Manoo and his relatives expended much labour to reclaim the land for them to live on. The third party and his half brother the late Afato Ioane also helped out with the reclamation of the land. When Ioane Mano’o passed away, the lease was transferred to the name of his widow Pina Manoo the mother of the third party and the defendants Lea and Iusitina. From 1982 the third party became solely responsible for paying the rent for the lease. As the evidence subsequently showed, what is said to be a lease was really a monthly tenancy as there was no formal lease.

The counterclaim by the defendants against the plaintiffs is founded on an allegation of fraud. They say that the transaction between the third party and the plaintiffs was carried out fraudulently and they were not notified about it. The difficulty with the counterclaim is that there is no evidence to show that the plaintiffs acted fraudulently. The plaintiffs like the third party and the defendants are Roman Catholics. They learnt from some source that the third party had purchased the land from “the Church”. Thus when they purchased the land from the third party it was their understanding that the third party was then the owner of the land. They knew nothing about any reclamation which is now said to have been done by the family of the defendants to the land or the history of the occupation of the land by the family of the defendants. All they knew was that “the Church” had sold the land to the third party. When they purchased the land they dealt with the third party on the belief that he was the owner of the land. They also paid the full purchase price of the land without any knowledge of any interest of the defendants in the land. It was only after the purchase price of the land had been paid in full that the caveats by the defendants Lea Ale and Sofia Atoa were registered. The plaintiffs subsequently became aware of the caveats.

It is thus clear that the plaintiffs were bona fide purchasers for value without notice of any fraud if in fact there was one. Counsel for the plaintiffs therefore submitted that the plaintiffs have acquired a good title to the land which cannot be impeached by the defendants. I agree. The plaintiffs are bona fide purchasers for value without notice of any relevant defect in the third party’s title to the land. The deed of conveyance from the third party to the plaintiffs has also been registered. Section 16 of the Land Registration Act 1992/1993 provides:

“No instrument of title shall in any manner affect the legal title to land until and unless such instrument is registered in the Land Register in accordance with the Act.”

Registration of the deed of conveyance has, in terms of s.16, certainly affected the legal title to the land by vesting the legal title thereto in the plaintiffs.

Counsel referred to the case of Toailoa Vaosa v Attorney (2000) (unreported judgment delivered on 4 August 2000) where a contrary view of the effect of s.16 seems to have been taken. With due respect, I am of the view that s.16 is quite clear that no instrument of title, which includes a deed of conveyance, will affect the title to any land until and unless such instrument is registered. It is immaterial whether the system of land registration we have is labelled a deeds or a Torrens system of registration or a hybrid of those two systems as counsel for the plaintiffs at one stage of his submissions seems to suggest. What really matters are the clear words of s.16. The clear meaning conveyed by those words is that a deed of conveyance, being an instrument of title, will not affect the title to land unless and until it is registered. Section 16 cannot be any clearer. In that way the public and the legal profession can rely on the register as a public record of legal titles created by registration. I will, however, leave open the point whether an unregistered instrument of title, for instance, a deed of conveyance may in some circumstances give rise to an equitable interest or title as it does not arise in this case.

To say that the system of land registration that we have is only a deeds system of registration of title to land, but not a system of title to land by registration, is to import into our land registration system the difficulties and disadvantages of the deeds system that were experienced in other jurisdictions like New Zealand and Australia. With due respect, that will be a serious step back in the development of land law in this country. It will result in an unwelcome change to conveyancing practice in this country. From my experience in legal practice, the legal profession has been relying on the land register for many years as the public record of legal titles to land in dealings involving the sale and purchase of land. For that reason a search is made of the land register in every land transaction to find out whether the title of the vendor to the land to be sold is encumbered or unencumbered. Reliance has thus been placed on the register as the correct record of title to land. No solicitor to my knowledge has had to check back through the previous deeds of conveyance which can be quite numerous to find out whether there is a defect in the chain of title to a particular land as it was done under the deeds system. This must be due to the fact that all the Samoan lawyers who did their legal training in New Zealand and Australia were taught land law under the Torrens system of title to land by registration. No Samoan lawyer trained in New Zealand or Australia was taught land law under the old deeds system. So Samoan lawyers are not familiar with the mechanics of land registration under the deeds system. As a consequence, conveyancing practice has been conducted on the basis that title to land depends on registration and not on the mere existence of a deed of conveyance. Members of the legal profession, when dealing with land transactions, have never had to search through previous deeds of conveyance relating to a particular land to find out whether there is a past defect in the chain of title. To hold now, contrary to what in my view are the clear words of s.16 of the Land Registration Act 1992/1993, that the system of land registration that we have is a system of registration of title as it was under the deeds system which countries like New Zealand and Australia have departed from for over 50 years and 100 years respectively will be a setback to the development of our land law. It will also compel the legal profession to change their conveyancing practice and adopt a system of conveyancing practice in respect of which they have had no training, knowledge or experience. No longer would the land register have the confidence that the legal profession and the public have reposed in it up to now when dealing with land transactions.

It is also to be noted that in litigations which involve issues of land law, counsel have usually referred to legal textbooks on the Torrens system, for instance, Land Law by Hinde, McMorland and Sim. Never to my knowledge has reference been made to a textbook on the deeds system as such. It reflects the understanding held by the bar regarding our land registration system which is consistent with the interpretation that I hold of s.16 of the Act. Both counsel for the plaintiffs and the defendants in this case also took a position which is consistent with the view I have taken and counsel for the third party did not object.

I do not think that because a system of registration of titles to land is not a Torrens system of registration it then follows that it must therefore be a deeds system of registration of titles. As counsel for the plaintiff said at one stage of his submissions under questions from the Court, our system of land registration could be a hybrid of the other two systems of registration given the provisions of the Land Registration Act 1992/1993 and in particular s.16. I agree. Labels should not be regarded as decisive. It is the words of the Act that really matters.

In saying all this, I am not suggesting that the decision the Court reached in Toailoa Vaosa was wrong. In fact I am of the respectful view that it was correct. But the decision could have been reached by a different route of legal reasoning based on the definitions of what is “customary land” and what is “public land” given under Article 101 of the Constitution. Once the Court was satisfied in that case that the land was customary land as was contended for by the plaintiffs, and not public land or “government land” as was contended for by the defendants, certain legal consequences should necessarily follow which would have included the cancellation of the lease of the land as government land and its registration as such. The reason being that under Article 2 of the Constitution, the Constitution is the supreme law of the land and any law which is inconsistent with the Constitution is void to the extent of the inconsistency. The expression “law” is then defined in Article 111 of the Constitution.

Thus once the Court in that case was satisfied that the disputed land was customary land in terms of the definition of customary land given under Article 101 of the Constitution, then it was contrary to the Constitution for the defendants to treat such land as government land and to lease and register it as such because the Constitution sys that it is customary land. On that basis the lease in that case and its registration were correctly annulled because they were contrary to the Constitution which is the supreme law of the land.

Counsel for the plaintiffs in this case, out of caution, further submitted that even if this Court were to take the same view as the Court in Toailoa Vaosa and hold that the system of land registration that we have is a deeds system of registration of title to land and not a system of title by registration, the conveyance from the third party to the plaintiffs who were bona fide purchasers for value without notice would still be effective to pass a good title in the disputed land to the plaintiffs as the plaintiffs paid the full purchase price before the defendants caveats were registered and became known to the plaintiffs. Counsel relied on the old English case of Pilcher v Rawlins [1872] UKLawRpCh 13; (1872) LR 7 Ch App 259. That was a case which was concerned with a deed of conveyance under the English deeds system. In that case Lord Hatherley LC said at p.265:

‘“In itself it is immaterial whether the purchaser knows or not that another has an equitable interest prior to his own, provided he did not know that fact on paying his purchase money. It may perhaps be sufficient in all possible cases for the purchaser to say, ‘I am not to be sued in equity at all. I hold what was conveyed to me by one in possession, who was, or pretended to be, seised, and who conveyed to me without my having notice of another equitable title’”.

Sir W. M. James LJ in the same case said at pp.268-269:

“I propose simply to apply myself to the case of a purchaser for valuable “consideration, without notice, obtaining, upon the occasion of his purchase, and by “means of his purchase deed, some legal estate, some legal right, some legal “advantage; and, according to my view of the established law of this Court, such a “purchaser’s plea of a purchase for valuable consideration without notice is an “absolute, unqualified, unanswerable defence, and an unanswerable plea to the “jurisdiction of this Court. Such a purchaser, when he has once put in that plea, may “be interrogated and tested to any extent as to the valuable consideration which he has “given in order to show the bona fides or mala fides of his purchase and also the “presence or the absence of notice; but when once he has gone through that ordeal, “and has satisfied the terms of the plea of purchase for valuable consideration without “notice, then, according to my judgment, this Court has no jurisdiction whatever to do “anything more than to let him depart in possession of that legal estate, that legal right, “that legal advantage which he has obtained, whatever it may be. In such a case a “purchaser is entitled to hold that which he has had conveyed to him”.

Sir G. Mellish LJ at p.273 said:

“The general rule seems to be laid down in the clearest terms by all the great authorities in equity, and has been acted on for a great number of years, namely, that this Court will not take an estate from a purchaser who has bought for valuable consideration without notice.”

Thus even if I had held, contrary to s.16, that the registration of a deed of conveyance does not affect title to land by vesting the legal title in a bona fide purchaser for value without notice, the deed of conveyance in this case would still be effective to pass title to the plaintiffs by reason of Pilcher v Rawlins as the plaintiffs are bona fide purchasers for value without notice.

PART B

Defendants counterclaim against third party

The defendants counterclaim against the third party is founded in unjust enrichment. In Public Trustee v Foketi Brown and Others (1995) (unreported judgment delivered on 24 January 1995) this Court referred to the formulation of a cause of action for unjust enrichment laid down in the Supreme Court of Canada by Dickson CJ in Rathwell v Rathwell [1978] 2 SCR 436; Pettkus v Becker [1980] 2 SCR 834 and Sorochan v Sorochan [1986] 2 SCR 38. Under that formulation the three requirements for a cause of action for unjust enrichment are: (a) an enrichment, (b) a corresponding deprivation, and (c) the absence of any juristic reason for the enrichment. When applied to the present case that would mean: (a) there was an enrichment to the third party, (b) that enrichment was at the expense of the defendants, and (c) there is no juristic reason for the enrichment. The English formulation of the requirements of the same cause of action as stated by Robert Golf J (as he then was) in BP Exploration Co (Libya) Ltd v Hunt (No. 2) [1979] 1 WLR 783 at 839 are: (a) receipt by the defendant of a benefit, (b) at the plaintiff’s expense, (c) in such circumstances that it would be unjust to allow the defendant to retain the benefit. I had also referred to this formulation of the cause of action for unjust enrichment in my judgment in Foketi Brown. I am not required to decide between the two formulations as both will lead to the same result in this case.

As already mentioned in Part A of this judgment, the defendants Lea Ale and Iusitina Gosche are half sisters of the third party being of the same mother but different fathers. The defendant Saulealia Afato Ioane is the wife of Afato Ioane deceased who was a full brother of Lea Ale and Iusitina Gosche and a half brother of the third party. The defendants Semi Afato Ioane and Sanele Afato Ioane are the sons of the defendant Saulealia Afato Ioane and her late husband. The defendant Sofia Atoa is a daughter of Saulealia Afato Ioane and her late husband. As for the defendant Joe Atoa, it is not clear where he comes into this case.

As the evidence shows, the third party was born in 1930. He together with an older brother and sister were the children of Filipina, also known as Pina, from her first marriage. When the father of the third party died, his mother Pina married Ioane Manoo who thus became the stepfather of the third party. From the marriage of Ioane Manoo and Pina were born Vitale, now deceased, in 1932, the defendant Iusitina Gosche in 1934, the defendant Lea Ale in 1936 and Afato, the husband of the defendant Saulealia Afato Ioane, in 1939. It appears from the evidence that when Pina married Ioane Manoo the latter was already living on the land which is the subject of these proceedings. Pina and the third party then moved onto the land and lived on it.

According to the evidence that was given by the third party and the defendants Lea Ale and Iusitina Gosche, the land was swampy and during heavy rains it was covered in water and after the rains when the water receded the land was muddy. No doubt it became dry land after a while as the land was again exposed to the sun. As the third party grew up he assisted his stepfather in reclaiming the land. Likewise Afato as he grew up. Relatives of their parents who came and lived with them also assisted in reclaiming the land. After some years the family of the defendants and the third party were able to build a European style house on the land.

I would not, for the purpose of the defendant’s claim for unjust enrichment, place much value on the assistance that was given by the third party and Afato to their father in reclaiming this land as they grew up. They were young at the time and there is no evidence that they expended much labour or any money in helping their father reclaiming the land. What they did at that time must have been the usual assistance that children normally give their parents with domestic chores but the real burden is on the parents. It also appears that the reclamation of this land was not continuous but sporadic and piecemeal. From 1931 when the third party first lived on this land up to 1965 when his stepfather died, the land was still swampy and covered in water during heavy rains. Thus for more than 30 years, Ioane Manoo was still not able to reclaim this land, which is a quarter of an acre, to the point where it became dry land even during heavy rains. It casts some reflection on the volume of the reclamation done by Ioane Manoo.

The evidence also shows that the third party paid for truckloads of soil, rocks sawdust and coral fill to reclaim the land. This must have been when he became an adult and a paid employee. Afato also brought some truckloads of rocks to reclaim the land. The evidence on the extent of the respective reclamations that were done by the third party and Afato was somewhat vague, but it is clear, however, that the third party contributed more to the reclamation of the land than Afato. There is also evidence that a drainage system was built at the Togafuafua area which carried the water. No doubt this drainage system which was built by the government has helped to make the land in question dry and to keep it dry during heavy rains. The land is now dry land. There is, however, no evidence that any of the defendants contributed to the reclamation.

The defendants and the third party also adduced evidence of the rent that was paid to the Catholic Church for the occupation of the land. The defendants rely on that evidence in support of their claim for unjust enrichment. But there is no evidence that any of them, except perhaps for the defendant Saulealia Afato, paid any of the rent for the use and occupation of the land. There is also no evidence whether Ioane Manoo paid any rent for this land in the 1930’s, 1940’s end 1950’s. At least there is no record to show that rent was paid at those times. But even if rent was paid, it must have been very minimal indeed given the condition of the land. Ioane Manoo and his wife Pina were also Catholics and that was the reason they were permitted to live on this land. I would not have expected the Catholic Church to charge rent in the 1930s, 1940s, or in the early 1950s on members of its parish who were living on this land given the swampy condition this land was in at the time. But even if rent was charged at those times, it must have been very minimal.

The evidence given by the witness Mareta Lafaele who was called by the defendants is that she used to work for the Catholic Church in its office at Mulivai from 1958 to 1978. She said that at that time the land was leased to Ioane Manoo and when he died the lease was transferred to the name of his widow Pino Ioane Manoo. This witness also said that from 1960 to 1978, the defendant Saulealia Afato and her husband Afato were responsible for paying the rent. I do not accept this part of this witness’s evidence.

The witness Tovia Faasavalu, a brother of the defendant Saulealia Afato, who was also called by the defendants, testified that he was appointed by the Catholic Church to be its land administrator in 1982. He served in that position until 1992. This witness said when he first became land administrator for the Catholic Church, he found that the lease under the name of Pina Ioane Manoo was ten to twenty years in arrears. The rent was certainly unpaid since 1970 but the witness appeared uncertain about the years prior to 1970 as there were no records available for that period. The third party then paid all the arrears from 1970 up to 1982 and the lease was transferred from the name of Pina Ioane Manoo who had died in 1981 to the name of the third party. Since 1982 the third party has been solely responsible for paying the rent. The rent in 1982 was 40 sene a month, later it went up to $5 a month, and it was again increased before Tovia Faasavalu ceased to be the land administrator for the Church. If the rent for this land was 40 sene a month in 1982, I very much doubt whether any rent was charged in the 1930s, 1940s and possibly in the early 1950s given the condition the land was in. Certainly the Catholic Church does not have any records to show that any rent was charged or paid by anyone for the use of this land during those times. This is clear from the evidence of Tovia Faasavalu. But if rent was charged, it must have been very minimal indeed. I also do not accept the evidence given by the witness Mareta Lafaele that the defendant Saulealia Afato and her husband Afato paid the rent from 1960 to 1978 because Afato was born in 1939 and must have been only 21 years in 1960. The defendant Saulealia Afato also testified that it was the old man Ioane Manoo who paid the rent until he died in 1965. So if Afato had paid any rent for this land, it must have been between 1965 and 1970 but there is nothing in the records of the Catholic Church to show that any such payment was made. Be that as it may, it is clear that the third party had paid the rent for the land from 1970 to 1998 when the land was sold to him. If any rent was paid for the land prior to 1965, that rent was paid by Ioane Manoo. There is no acceptable evidence that any rent was paid between 1965 and 1975. I must say the evidence is rather vague and unsatisfactory as to what happened during that period, that I am not able to conclude whether rent was paid during that period, and, if so, how much. There is also no acceptable evidence that any of the defendants ever paid any rent for the land.

Evidence was also given by the defendants that in 1992 the third party leased their family’s European style house on the land to Joe and Lina Chang. I am satisfied on the evidence given by the third party that is not correct. The third party had been occupying the European style house since 1975. His brother Afato and his wife lived in another house at the back. The third party is a specialist motor mechanic and was the chief motor mechanic for the Samoan police for a number of years. He retired about 1990. The Changs then employed the third party in their car spare parts business which was set up in the European style house whilst the third party was given a house of the Changs at Alafua to live in. The third party also operated a car sales business of his own in the same European style house. The defendants could not provide any evidence of a lease between the third party and the Changs. The third party denied that the arrangement he had with the Changs was a lease.

Evidence was also given which shows that prior to 1989, the Catholic Church made an announcement to sell its lands in the area where the disputed land is situated. First option to purchase was given to the people who were occupying these lands. Many of those people have purchased the lands they are occupying. The defendants have done nothing to purchase the land they are occupying. When the third party completed the purchase of the land by himself in 1998, the defendants have still not made a move to purchase the land for themselves. I am satisfied they could not afford to buy the land. But that could not prevent the Catholic Church from selling its own lands if it wants to. It follows that if the third party had not purchased the land, the Catholic Church would have sold it to someone else. The defendants feel that the third party should split in half the price for which he sold the land to the plaintiffs and give them one half and the third party to keep the other half for himself. As a matter of law, and not just as a matter of family relationship, the defendants would have to show a valid legal basis for the Court to intervene and grant them their wish.

Now each of the defendants is claiming in her or his own individual capacity for compensation from the third party on the ground of unjust enrichment. None of the defendants is claiming as the administrator of the estate of Ioane Mano’o, or Pina Manoo, or Afato Ioane Mano’o. In fact there is no hint or suggestion from the evidence that any application has been made to the Court for letters of administration of the estate of any of those deceased persons. There is no other claim apart from the one for unjust enrichment. I will deal with the claim of each defendant for unjust enrichment in her or his individual capacity.

The requirements for the defendant’s cause of action in unjust enrichment must of course be kept in mind. Applying those requirements to this case, there is no evidence that the third party has been enriched at the expense of the defendant Joe Atoa who has not been shown to have made any contribution to the reclamation of the land or the payment of the rent which forms the basis of the defendants claim. The claim by the defendant Joe Atoa is therefore dismissed. As for the claim by the defendants Saulealia Afato, Semi Afato Ioane, Sanele Afato Ioane and Sofia Atoa there is no evidence that any of them contributed to the reclamation of the land or the payment of rent. They are really claiming through Afato Ioane Manoo but none of them is the administrator of the estate of Afato Ioane Manoo and therefore they have no locus standi. Be that as it may, the third party wanted to buy a section of land for these defendants to move to but they will not accept the sections of land that the wife of the third party had shown to the defendant Sofia Atoa. The third party had also given these defendants $22,000 to purchase a land for themselves. The claim by the defendants Saulealia and her children is also dismissed.

The third party is not seeking to recover the sum of $22,000. I think that is wise. Afato, as the evidence shows, made some contribution to the reclamation of the land and the money has been given to his children. There has, however, been no valuation evidence on the value of Afato’s contribution but in my view based on the whole of the evidence, $22,000 is not an unreasonable estimation.

As for the defendants Lea Ale and Iusitina Gosche who are now residing permanently in New Zealand, there is no evidence that any of them contributed to the reclamation of the land or the payment of the rent. They have been living in New Zealand for a number of years. Each of them is claiming in her individual capacity and not as administrator of their deceased father’s estate. I cannot see how it can be said that the third party has been enriched at their expense. I think the attitude of these two defendants as well as the other defendants is correctly represented by what the defendant Lea Ale said in her evidence that if the third party had given half of the price for which “their land” was sold to the plaintiffs, there would have been no case. The fallacy in that attitude is that the land did not belong to the defendants or their father Ioane Manoo. The land belonged to the Catholic Church and was sold to the third party who in turn sold it to the plaintiffs. The defendants, the third party and their family lived on the land which was “leased” to Ioane Manoo. After Ioane Manoo and Pina his wife died, the lease which had been seriously in arrears for more than ten years was transferred to the name of the third party who paid the arrears and became solely responsible for paying the rent from 1982 onwards. The land was leased land and it never belonged to the defendants or any of their family.

The defendants, for the purpose of their counterclaim, would have to show that the third party has gained an enrichment at their expense as individuals as they are claiming as individuals. They have not done so. Thus there is no need to consider the third requirement for the cause of action in unjust enrichment. Accordingly, the defendants counterclaim is dismissed.

Judgment

Judgment is given for the plaintiffs against the defendants. The defendants are ordered to vacate the land within four weeks. General damages of $5,000 are also awarded to the plaintiffs against the defendants plus costs of $2,000 and reasonable disbursements to be fixed by the registrar.

The defendants counterclaim against the third party is dismissed. The defendants are also ordered to pay costs of $2,000 to the third party plus reasonable disbursements to be fixed by the registrar.

CHIEF JUSTICE

Solicitors:
Fepuleai & Schuster Law Firm for plaintiffs
TV Eti for defendants
A Roma for third party