Hsu v Hsu [2002] WSSC 8 (19 April 2002)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

IN THE MATTER of the Samoa Land Registration Act 1992-993.

AND

IN THE MATTER of Caveat No. 490X

BETWEEN

MAKARIKA HSU
(also known as Makarika Vitale)
of Fakaofo, Tokelau, Housewife.
Applicant

AND

YU TONG HSU
c/o Richard’s Law Firm, Apia.
Respondent

Counsel: KM Sapolu for plaintiff
AP Petaia for defendant

Hearing: 12 April 2002
Judgment: 19 April 2002

JUDGMENT OF SAPOLU CJ

The plaintiff, a national of the Tokelaus and Samoa, and the defendant, a national of Taiwan and subsequently a citizen of Samoa, were married in Samoa on 22 June 1979. They lived in Samoa up to June 1992 when they migrated to New Zealand. They separated in 1993 and their marriage was dissolved in Auckland on 11 October 1995. On 9 February 1999, the District Court at Waitakere in Auckland, in matrimonial property proceedings, made orders regarding the division of the parties matrimonial properties in New Zealand. The matrimonial properties in Samoa, were not included in those orders. These comprise of a fish processing machine and lands at Letogo.

Counsel were in agreement that the fish processing machine which is in storage at someone’s premises at Lotopa should be sold and the proceeds of sale be used to pay off any storage fees first and the balance to be divided between the parties in equal shares. Subject to any claim by the person who is keeping the fish processing machine in storage, I make the order now that the fish processing machine should be sold and the proceeds from the sale shall be used to pay off any storage fee first, then the balance to be divided between the parties in equal shares.

As for the lands at Letogo, the parties have been unable to reach agreement on how to divide those lands. The lands are registered in the name of the plaintiff even though she did not contribute any money to the purchase price. She testified that the full purchase price of the lands was paid by the defendant, her ex-husband. The defendant on the other hand said that it was he and his brother, Mr Wu, in Taiwan who contributed to the purchase in equal shares. This conflict in the evidence given by the plaintiff and by the defendant is the real issue in this case as the parties were in agreement that the defendant’s share in the lands is to be divided between themselves in equal shares.

Thus if the defendant contributed the full purchase price, then all of the lands will be divided between the parties in equal shares. If on the other hand the defendant and his brother in Taiwan contributed in equal shares to the purchase price, then the lands will be divided in equal shares between the two of them. This will mean the plaintiff’s share in the lands will be less as she will receive only one half of the defendant’s half share of the total lands. This is why the conflict between the plaintiff’s evidence that the defendant provided the full purchase price of the lands and the defendant’s evidence that it was he and his brother who contributed to the purchase price in equal shares is the real issue in this case. In order to decide which version should be accepted, I will have to refer to the evidence.

During their marriage, the plaintiff and the defendant were not able to conceive a child. So in 1998 about October or November, they decided that the plaintiff was to travel to Taiwan to try and conceive a baby by way of intravenous fertilization, commonly referred to as a test tube baby. The defendant remained in Samoa to look after their business which was a trading company registered as Hsin Meng Ltd. The attempt to have the plaintiff conceive a baby failed and it saddened both the plaintiff and the defendant. To cheer up the plaintiff, the defendant said he phoned her in Taiwan from Samoa and told her he had a surprise for her; he had bought land in her name and that it was a present for her.

The plaintiff testified that there had been no talk between herself and the defendant about buying land before she left for Taiwan. The first time there was any such talk was when the defendant phoned her in Taiwan after the unsuccessful attempt for her to have a child. She said the defendant told her he had purchased land in her name as a gift for her. When she returned to Samoa she found out that the money from the proceeds of their company which was kept in a strong safe in their home had diminished. So she assumed that the money which was used in the purchase of the lands, the subject of these proceedings, came from the strong safe. It was only in 1992 that the defendant mentioned to her that part of the purchase price of the lands was provided by his brother, Mr Wu, in Taiwan. It is not clear whether that happened before or after the plaintiff and the defendant migrated in June 1992 to live in New Zealand. Counsel for the defendant during cross-examination asked the plaintiff whether her marriage was still okay in 1992. She was rather hesitant before she replied in an unconvincing manner that it was okay. When the defendant gave evidence on this aspect of the case, the clear effect of his evidence was that in 1992 the marriage was not okay. The parties separated in 1993. I accept that in 1992 the marriage was not okay. Marriages in general do not abruptly come to a separation. There is usually a preceding period of tension and differences between a couple before a separation takes place.

It also appears from the plaintiff’s evidence that she used to meet the defendant’s brother when he visited Samoa and at one time Mr Wu stayed with the plaintiff and the defendant. Mr Wu hardly speaks English; he speaks fluent Chinese though. There was therefore very little oral communication between him and the plaintiff who obviously does not speak Chinese. Some of the communication between Mr Wu and the plaintiff was done by signs and gestures. Even then there was no mention or hint made by Mr Wu about the lands at Letogo. The defendant also did not discuss the lands with both Mr Wu and the plaintiff present, even though he speaks both English and Chinese and therefore could communicate orally with both Mr Wu and the plaintiff.

According to the defendant in his evidence, he and his brother decided to buy the lands while the plaintiff was in Taiwan in an attempt to have a child. He said he and his brother contributed to the purchase price of the lands in equal shares. His brother’s half share supplied goods from Taiwan to his company Hsin Meng Ltd in Samoa. Because of restrictions regarding the remittance of funds out of Samoa, part of the money due to his brother for goods supplied was kept in Samoa. His brother’s share in the purchase price of the lands came out of that money. He also said in his affidavit filed in these proceedings that he told the plaintiff several times about his brother’s contribution to the purchase price of the lands and she did not complain. This was denied by the plaintiff who said the defendant only mentioned to her in 1992 that his brother contributed to the purchase price of the lands.

The defendant in his evidence also admitted that he is an astute businessman. In his affidavit, he also said that he had been doing business with his brother since 1981. Both the defendant and his brother are therefore businessmen of years of experience. There are statutory restrictions on non-citizens buying land in Samoa. The defendant was aware of those restrictions as he admits in his affidavit that the lands could not be registered under his brother’s name. I am of the view that the defendant’s brother was also aware of those restrictions. As a businessman with years of experience, I find it difficult to accept that he would risk investing his money in lands in Samoa, even if that is done under another person’s name. A land transaction entered into by a purchaser like the defendant’s brother who is a non-citizen, would be unlawful and of no effect unless the requirements of the Alienation of Freehold Land Act 1972 have been satisfied.

The defendant also said that the reasons for purchasing the lands under the plaintiff’s name were twofold. The first reason was for convenience. The wife of the vendor of the lands was desperate for money. If the lands were to be registered under the defendant’s name, it would have taken about three months to await the consent of the Head of State to the transaction. The lands could not be registered under his brother’s name. Thus the purchase had to be made under the plaintiff’s name in order to facilitate and expedite the transaction. The plaintiff was certainly not advised about this in Taiwan. The second reason for the land purchase was to cheer up the plaintiff who had just failed an attempt to have a child. Given the circumstances which are now known, the plaintiff was clearly misled when she was told in Taiwan that lands were being purchased in her name as a gift to her, that is, if one were to believe the defendant’s evidence. I also doubt that the real or main reason behind the defendant telling the plaintiff in Taiwan about the lands was to cheer her up. She had just failed to have a child and no doubt was in a vulnerable position and readily accepted what she was told without inquiry. She must also have trusted what she was told because it came from her own husband.

A document headed “Attestation” was annexed to the defendant’s affidavit with the name Hsing-Wang Wu signed on it in Chinese. The contents of the document, apart from the signature in Chinese, are all in English. It says that in January 1989 the defendant and Mr Wu jointly purchased the lands which are the subject of these proceedings and that they are co-owners in equal shares. Objection was made on the plaintiff’s behalf to the admissibility of that document. Apart from the defendant’s evidence, there is no other evidence to confirm that the signature on the document is, in fact, that of Mr Wu. The document is in English, but the evidence has shown that Mr Wu hardly speaks English. Mr Wu has not appeared in this case. The document, therefore, is hearsay evidence and I rule it is inadmissible. I would also have thought that if half the lands (17.5 acres in total) were to belong to Mr Wu, he would have made every effort to appear in this case given the current value of land in Samoa. His non appearance does not inspire confidence in the defendant’s evidence that Mr Wu contributed half of the purchase price of the lands.

I have also considered other parts of the evidence but they do not affect the conclusion I have reached. I accept the plaintiff’s evidence that while she was in Taiwan after an unsuccessful attempt to have a child, the defendant phoned her from Samoa saying he had purchased land in Samoa under he name and it was a gift for her. In his evidence, the defendant said the dual purpose for buying the lands under the plaintiff’s name was for convenience, that is, to facilitate and expedite the purchase as the vendor’s wife was desperate for money, as well as to cheer up the plaintiff. Looking at the evidence, if what the defendant is now saying is true, then in my judgment, the main purpose for buying the lands was not to cheer up the plaintiff but to facilitate and expedite the sale and purchase transaction. The plaintiff in effect had been misled. If it is true as the defendant also said that the purchase price of the lands was provided by himself and his brother and therefore they own the land jointly, then again the defendant misled the plaintiff by telling her that the lands were under her name and was a gift for her. And for the defendant to do that with full knowledge that the plaintiff was in a vulnerable position because she was in a sad state of mind due to the unsuccessful attempt to make her conceive a child, is not a good reflection on the defendant. All this does not inspire confidence in the defendant’s credibility.

The defendant’s evidence about his brother, Mr Wu, contributing half of the purchase price of the lands arouses suspicion. Even though Mr Wu hardly speaks English, he at no time during his visits to Samoa suggested or hinted to the plaintiff that he contributed to the purchase price of the lands. There is no evidence that he even mentioned to the plaintiff the name “Letogo” where the lands are located. There is also no evidence that the defendant who speaks both Chinese and English, discussed the lands with both Mr Wu and the plaintiff present and explained to the plaintiff that half of the purchase price was provided by Mr Wu. If what the defendant said that he told the plaintiff several times that Mr Wu contributed half of the purchase price is true, it shows that the matter was important to him. I would, therefore, have expected him to discuss or raised the matter in the presence of both Mr Wu and the plaintiff during Mr Wu’s visits to Samoa; but there is no evidence he did. I prefer the plaintiff’s evidence that it was only in 1992 that the defendant said to her that his brother contributed half of the purchase price of the lands. The parties, of course, separated in 1993.

Mr Wu would also have had difficulties acquiring land in Samoa because of the statutory restrictions on acquisition of land by a non-citizen. The defendant was well aware of these difficulties. Mr Wu must also have been well aware of these difficulties from the defendant. I find it difficult to accept that Mr Wu a businessman with years of experience would risk investing any money in a land transaction with such awareness on his part. Such a transaction would be unlawful and of no effect unless the relevant statutory restrictions have been met. Even if it is true that one of the reasons the lands were registered under the plaintiff’s name was because the vendor’s wife was desperate for money, that was her problem, not Mr Wu’s problem. I do not believe that Mr Wu as a businessman would part with a significant portion of his money on a risky transaction which could be held unlawful and of no effect just to help the vendor’s wife. The truth of the matter, as I see it, is that he did not part with any money and he did not contribute to the purchase price. The full purchase price was provided by the defendant. I therefore accept the plaintiff’s claim.

Accordingly the lands at Letogo which are registered under the plaintiff’s name are to be divided in equal shares between the parties. When the appropriate deed or deeds of conveyance are finalized and ready for registration, the caveat lodged by the defendant shall then be removed. Until such time, the caveat is to remain on the land register to protect the defendant’s interest in the lands. Leave is reserved for the parties to seek directions from the Court if any problem arises as to the division of the lands. In the meantime matters are left to the parties and their counsel.

I make no order as to costs.

CHIEF JUSTICE

Solicitors

Sapolu & Lussick for plaintiff
Richard’s Law Firm for defendant