Harrington v Board of Trustees of the Congregational Christian Church in Samoa [2003] WSSC 44 (25 July 2003)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

VI HARRINGTON
of Aleisa Samoa, Domestic.
Plaintiff

AND

BOARD OF TRUSTEES OF THE
CONGREGATIONAL CHRISTIAN CHURCH IN SAMOA
an incorporated religious society having its office at
the Ioane Viliamu Building, Tamaligi, Apia.
First Defendant

AND

THE ATTORNEY GENERAL
for and on behalf of the Department of Lands Survey and Environment, Apia.
Second Defendant

Counsel: RT Faaiuaso for plaintiff
TV Eti for first defendant
L Vaa-Tamati for second defendant

Hearing: 5 May 2003
Judgment: 25 July 2003

JUDGMENT OF SAPOLU CJ

In order to have a better understanding of this case, I will first set out the essential circumstances upon which the claim by the plaintiff is based and then the claim itself before dealing with other matters. In 1964, the plaintiff desired to gift a part of her freehold land at Aleisa to the first defendant, the Board of Trustees of the Congregational Christian Church in Samoa (hereinafter referred to as “the CCC”). The purpose of the gift was to provide a convenient location for building a new church and pastor’s house for the congregation of the CCC at Aleisa West of which the plaintiff was and is still a member. A scheme plan was then prepared and drawn up in 1964 for part of the plaintiff’s freehold land to be gifted to the CCC. Approval of the scheme plan was recommended by the then Director of Lands to the then Minister of Lands and the plan was duly approved by the Minister. Subsequently the land was surveyed in the same year and a subdivisional survey plan was prepared and drawn up. The survey plan was duly approved by the then Director of Lands. A deed of gift which conveyed the land to the CCC was prepared by the then solicitor for the plaintiff and the legal description of the land shown in the copy of the deed that was prepared was based on the survey plan. For some unexplained reason, the deed was not finalised and registered until 1973. The plaintiff is shown in the deed as donor and the CCC as donee. It was alleged on behalf of the plaintiff that she did not execute the deed but she eventually said in the course of her evidence that she did sign the deed. Unfortunately only a copy of the deed could be found but not its original.

It is also alleged for the plaintiff that when she returned from the United States in May 2000, she went to church one Sunday morning with her son Peter Harrington. After the church service she told her son that the area currently occupied by the CCC is bigger than the land she had gifted. Thus she instructed her son to look into the matter and find out who did it. From her son’s enquiries it was discovered that the area of land shown in the subdivisional survey plan is greater than the area shown in the scheme plan. It is this difference in areas between the two plans that is at the core of the plaintiff’s claim. In consequence, the present claim has been brought on behalf of the plaintiff against the CCC as first defendant and the Attorney-General sued on behalf of the Department of Lands, Survey and Environment as second defendant.

The plaintiff has pleaded three causes of action. Under her first cause of action, it is essentially alleged that the first defendant knew or ought to have known through its agents and workmen that it had obtained by mistake a greater area of land than was actually gifted by the plaintiff. This part of the plaintiff’s first cause of action smacks of fraud against the first defendant. It is then further alleged that the second defendant had mistakenly approved the survey plan which shows an area of land greater than the area shown in the scheme plan. This part of the plaintiff’s first cause of action is clearly directed at the approval of the survey plan by the then Minister of Lands. Two orders are then sought. These are: (a) an order to rectify the survey plan so that it shows the same area as shown in the scheme plan; and (b) an order to rectify the deed which purported to convey part of the plaintiff’s land that was gifted to the CCC, so that the area shown in the deed becomes the same as the area shown in the scheme plan and not in the survey plan.

Under the plaintiff’s second cause of action, it is alleged that the first defendant, the CCC, obtained the plaintiff’s land by fraud because it knew or ought to have known through its surveyor who surveyed the plaintiff’s land that it was receiving an area of land greater than the land intended by the plaintiff to be gifted to the first defendant. In this connexion, the first defendant has claimed that the surveyor who carried out the subdivisional survey of part of the plaintiff’s land that was gifted to the first defendant was hired and employed by the plaintiff herself.

As against the second defendant, it is alleged under the plaintiff’s second cause of action that the second defendant knew or ought to have known when approving the survey plan that it was fraudulent. It is further alleged that the second defendant had acted dishonestly when approving the survey plan because the second defendant knew or ought to have known from the scheme plan previously approved by the then Minister of Lands that the area shown in the survey plan was greater than the area shown in the scheme plan. The survey plan should therefore have been rejected. An order is thus sought to have the deed of gift conveying the land in question to the first defendant declared void on the ground of fraud.

Under the plaintiff’s third cause of action, it is alleged that the plaintiff has no recollection of having signed the deed of gift which was prepared by her then solicitor. It is also alleged that the plaintiff did not authorise her then solicitor to write her name on the deed. It is even alleged that the deed was obtained by fraudulent means. In effect, fraud is being alleged on behalf of the plaintiff against her past solicitor. An order is then sought to have the deed declared void and that it be struck off from the land register. This last part of the prayer for relief under the plaintiff’s third cause of action is in effect seeking rectification of the land register.

I must point out here that I am aware that it has been conveyancing practice in Samoa for many years that the vendor or donor of land would sign the original of the deed conveying the land to the purchaser or donee as the case may be. Such signature would be witnessed by the solicitor who had prepared the deed and acting for the vendor or donor. A certified copy of the deed would also be prepared. The vendor or donor would not be required to sign the certified copy. What happened was that the solicitor would write on the certified copy the name of the vendor or donee. Conveyancing practice in Samoa may have now changed.

I must say that I have had difficulties with the plaintiff’s claim. In the written submissions filed by counsel for the plaintiff ten days after the trial had concluded, it is there pointed out that the plaintiff no longer pursues her action in fraud but on the basis of mistake. But it is clear that the alleged fraud permeates to the heart of all three causes of action. The allegations of fraud are so closely intertwined with the allegation of mistake that it is difficult to disassociate one from the other without seriously affecting the substance of the claim.

Furthermore, the plaintiff said under cross-examination that she wants matters to be left as they are. The claim is her claim and if she wants to leave matters as they are then weight should have been given to her wish. The other real difficulty with this case is that, except for the plaintiff who is now 97 years of age, all the key players who were involved with this matter in 1964 have passed away or left Samoa. The Minister of Lands who approved the scheme plan and the surveyor who drew up that plan and then surveyed the land and prepared the survey plan have both passed away many years ago. The Director of Lands who recommended ministerial approval of the scheme plan and who approved the survey plan was a New Zealander and he returned to New Zealand many years ago. The plaintiff’s solicitor who prepared the deed also passed away many years ago. Members of the CCC like Reverend Ioelu Tapeni who had some minor involvement in this matter had also passed away many years ago. The only person involved in this gift when it was made in 1964 who is still alive is the plaintiff who was very forgetful, vague and inconclusive during her evidence undoubtedly due to her very old age and the fact that the events relating to her gift of land to the CCC occurred thirty nine (39) years ago.

Be that as it may, I have decided to continue on to consider the claim for the plaintiff on the basis of mistake as put forward by her counsel in his written submissions. It appears from the evidence that the congregation of the CCC at Aleisa used to have a church which was situated some distance inland from the main road at Aleisa West. The location of that church proved inconvenient to the congregation. They then requested the plaintiff who owns freehold land fronting onto the main road for part of her land to be used for building a new church. As a member of the congregation of the CCC at Aleisa, herself, the plaintiff willingly agreed to gift part of her land to the CCC to build a new church and house for the parish pastor. She was 58 years of age at the time. The part of the plaintiff’s land that was gifted is a corner site which fronts on its northern side onto the main road and on its eastern side onto another road which goes inland.

The evidence which was given by the plaintiff as to what ensued after she agreed to gift part of her land to the CCC was, at best, generally very vague and inconclusive. At her present age of 97 years, she was understandably very forgetful and could not recall or understand a number of things she was asked about by counsel or the Court. Inevitably a number of leading questions, some of which were excessive, were put to her to try and get some answers from her. The weight of her answers to such questions were necessarily affected by the form of the questions. There were also some relatively lengthy pauses before the plaintiff could give some of her answers. Overall, the plaintiff was an unsatisfactory witness. The written submissions by all counsel do not reflect or sufficiently reflect what I have just said concerning the plaintiff’s evidence.

Be that as it may, the plaintiff said that when she gifted part of her land in 1964, she pointed out the land to be gifted and its boundaries which included large trees and hedges. She did not explain who was the person she pointed out those boundaries to or where on the land were those large trees and hedges. She also had no idea of land measurements as she did not know what was a quarter acre, half an acre or an acre. A scheme plan was then drawn up and approved by the plaintiff. A notation written at the bottom of that plan states “Distances & Areas by scaling only & are subject to survey”. The plan was then recommended for ministerial approval by the then Director of Lands on 20 April 1964 and it was duly approved by the then Minister of Lands. A subdivisional survey of the land to be gifted was then carried out on 4 May 1964 by a private licensed surveyor. A plan of that survey was then prepared and drawn up and it was approved by the Director of Lands on 21 May 1964. The area of land shown in the survey plan is 17.12 perches greater than the area of land shown in the scheme plan. This difference in areas shown in the two plans is at the core of the plaintiff’s case. I will come back to it.

Sometime, most probably soon after the land was surveyed, the congregation of the CCC at Aleisa built a new church and house for their parish pastor on the land. The plaintiff, like other members of the congregation, contributed financially to those works. The plaintiff’s residence on her adjoining land was close to the site of the new church and pastor’s house. She is still living on her adjoining land except when she visits her son who lives in the United States. After the new church was built, the plaintiff must have regularly attended the Sunday services held therein. As the evidence shows, she was still attending Sunday service in that church up to May 2000. It is not clear whether she is still doing so now.

In the 1990’s another new house for the pastor was built on the land but it is not entirely clear when exactly this new house was built. This new house was not built on the same foundation as the previous pastor’s house. The evidence given by Peter Harrington, the son of the plaintiff, suggests that the plaintiff was in the United States at the time this new house was built. The implication seems to be that this house was built without the knowledge of the plaintiff.

The witness Peter Harrington also gave evidence that when he and his wife returned with his mother to Samoa in May 2000, his mother asked him after attending Sunday service one day, what was this other house on the land. He told his mother it was the pastor’s house. His mother then pointed to the foundation of the previous house for the pastor and said that the land taken by the Church was greater than the land she had gifted and she asked him to find out who did it. From that point on it appears that it was the plaintiff’s son who was primarily involved in this matter until it ended up in Court. He made a search and found the scheme plan and survey plan prepared and drawn up for this land in 1964. The greater area of land shown in the survey plan compared to the area of land shown in the scheme plan became the real focal point in the case for the plaintiff. My clear impression of the evidence is that it was this discovery of the difference in areas between those two plans that provided the real impetus for this case to be brought to Court. So I will have to deal with those plans. But before I do so, I wish to comment on other relevant parts of the evidence.

There is no dispute that the new church and pastor’s house which were built in 1964 were built within the boundaries of the gifted land. The CCC has been in continuous occupation of the land ever since without any complaints from the plaintiff or her family who were living on adjoining land. It was only in 2000 after another new house was built and completed for the pastor that the plaintiff who was then about 94 years of age, upon her return from a visit to the United States, said to her son that the land occupied by the Church was greater than the land she had gifted. However, the plaintiff was not able to say how big was the land she had gifted to the CCC in 1964. She has no idea of land measurements. She only said that in 1964 she pointed out the boundaries of the land which included large trees and hedges. But she did not say where those large trees and hedges were on the land or on the land as shown in the scheme plan or survey plan. She also did not say where on the land were the boundaries she had pointed out. She did not even say who was the person to whom she pointed out the boundaries of the land. The plaintiff’s evidence in this regard is quite unsatisfactory and unconvincing. Without convincing evidence as to the area of land that the plaintiff intended to gift and its boundaries, it would be difficult to conclude with any degree of confidence that the area of land that was actually conveyed was different from the area of land she intended to convey.

I also find it difficult to accept that after all these years since 1964 the plaintiff, who has been residing on her adjoining land, was not aware of the correct boundaries of the land she had gifted. As a member of the congregation of the CCC at Aleisa, she must have regularly attended the Sunday services held in the new church that was built on the land. Thus she had ample opportunity to observe the extent of the occupation by the CCC of the gifted land. There is also no evidence that the CCC or its congregation at Aleisa tried to deceive the plaintiff or conceal the extent of their occupation of the land or its true boundaries. To the contrary, the evidence suggests that the occupation of the land by the CCC and its Aleisa congregation has always been open and manifest.

With regard to the scheme plan upon which counsel for the plaintiff placed much reliance, it shows an area of 2 roods and 23 perches (0a.2r.23p). The owner is shown as the plaintiff. A notation on the plan together with the signature of the plaintiff shows that the plan was approved by the plaintiff. The plan is shown to have been prepared by Tauvela P Hunter who was a private licensed surveyor. He wrote at the bottom of the plan that “Distances & Areas by scaling only & are subject to survey”. It is not clear from the evidence of the plaintiff which of the parties, herself as donor or the CCC as donee, hired the surveyor. Whoever did so, it is clear that the distances and areas shown in the scheme plan approved by the plaintiff were subject to survey. That condition of “subject to survey” is written on the scheme plan and therefore is part of the plan. The approval by the plaintiff of the scheme plan must therefore also, at least technically, extend to the “subject to survey” notation.

A subdivisional survey of the gifted land was then carried out on 4 May 1964 by the same surveyor and a subdivisional survey plan was prepared and drawn up. On 13 May 1964 the surveyor certified the survey plan as correct. That plan was received by the then Department of Lands and Survey on 15 May 1964 and was approved by the Director of Lands the same day. The area of land shown on the survey plan is 3 roods and .12 perches (0a.3r.oo.12p). This is 17.12 perches greater than the area of 2 roods and 23 perches (0a.2r.23p shown in the scheme plan.

The witness Reverend Ioane Onesemo a senior survey technician and current land commissioner for the CCC was called by the first defendant to give evidence. His evidence was that a survey plan is more reliable than a scheme plan because a survey plan is based on an actual survey of the land and its boundaries. A scheme plan, on the other hand, is based on estimate measurements. It can be drawn up in the office using the plan of the whole land to be subdivided without the surveyor actually visiting the land to be surveyed. In other words a scheme plan is based on “rough” estimates before an actual survey is carried out. That is why the scheme plan in this case contains the notation: “Distances & Areas by scaling only & are subject to survey”. The evidence which was given for the second defendant by the witnesses Sagalala Salanoa a government licensed surveyor and Foutanu Eti Lino the government principal draughtsman was also to the same effect. As I understand the evidence given by Colin Forbes who is a qualified private surveyor that was called for the plaintiff, he did not disagree that a survey plan is more reliable than a scheme plan.

When the plaintiff was also asked by the Court as to which of the two plans represents the correct area of land she had gifted to the CCC, she gave no answer. Thus despite the submission by the plaintiff’s counsel that the scheme plan represents the correct area of land that was gifted, it was not possible for the plaintiff to say whether the area of land shown in the scheme plan is the correct area of land she intended to gift to the CCC. She also did not confirm whether the boundaries shown in the scheme plan correctly represent the boundaries she had pointed out. This is consistent with her other evidence that she has no idea of land measurements.

Emphasis was also placed by counsel for the plaintiff on the fact that the scheme plan had been approved by the plaintiff and therefore the area of land shown in that plan was the area of land approved by the plaintiff to be given to the CCC. Logically, this would mean that since the plaintiff did not approve the survey plan, the increased area of land shown in that plan was not the area of land that the plaintiff had intended to give the CCC. I cannot accept this. In the first place the plaintiff, when asked by the Court, was not able to say whether the scheme plan shows the correct area of land she had gifted. The expert witnesses called for both defendants were also unanimous that a scheme plan contains only estimate measurements subject to survey. They said that a scheme plan is normally prepared in the office from the plan of the whole area, part of which is to be subdivided; the surveyor does not have to go to the site of the land to be subdivided and draw up the scheme plan there. They also said that a survey plan is more reliable than a scheme plan. I think it is also to be borne in mind that the scheme plan contains the notation that it is subject to survey. So if approval of the scheme plan by the plaintiff is accepted, that must mean she was also accepting the notation on the scheme plan that the distances and areas shown on that plan are subject to survey because that notation is part of the scheme plan itself. I cannot accept that the approval by the plaintiff of the scheme plan means that the area it shows is the correct area of land she intended to gift the CCC when the scheme plan, itself, says that the distances and areas it shows are subject to survey.

There is also uncertainty in the evidence whether the plaintiff was present when the survey of the land was carried out. If anyone should know whether the plaintiff was present, it is the plaintiff herself. The surveyor had died many years ago so that no evidence can be obtained from him. However, there was no evidence from the plaintiff whether she was present at the time of the survey. Perhaps because of her very old age she cannot recall. Counsel for the first defendant submitted that the plaintiff must have been present to watch the survey and point out the boundaries of her land to be given to the CCC. As I see it, the point that counsel for the first defendant is trying to establish here is that the boundaries shown on the survey plan must be the boundaries that were pointed out by the plaintiff to the surveyor for the surveyor would not have known what to survey unless the plaintiff, as owner of the land, had pointed the land out to him. However, in the absence of any evidence from the plaintiff or the surveyor on this matter, I cannot conclude with confidence whether the plaintiff was present at the survey or not, even though I can see the sense of the submission by counsel for the first defendant.

Counsel for the plaintiff also placed some emphasis on the fact that part of the gifted land was taken up for road widening purposes and this had led the survey astray. I have not found this part of the evidence persuasive one way or the other. I therefore say no more about it.

After the land was surveyed and a survey plan was prepared and approved in 1964, a deed of gift was prepared by the then solicitor for the plaintiff. The deed shows the plaintiff as donor and the first defendant as donee. The legal description of the land in the deed was based on the survey plan and not the scheme plan. Only a copy of the deed can be found but not the original. The plaintiff denied that she signed the copy of the deed or authorised her solicitor to write her name on it. Eventually she said that she signed the deed. As already pointed out, conveyancing practice in Samoa for many years in the past was that the vendor or donor of land would sign only the original of the deed which was sent to the Department of Lands and Survey for registration. A certified copy of the deed was also prepared but the vendor or donor would not sign the copy. The solicitor concerned would write the name of the vendor or donor on the copy and certified it as a true copy of the deed. No evidence was given whether that practice still continues. It is also unfortunate that the original deed of gift cannot be found and the past solicitor for the plaintiff had died many years ago. In the circumstances, I am not prepared to conclude that the plaintiff’s past solicitor simply made up a deed of gift which conveyed part of the plaintiff’s land at Aleisa with a legal description that corresponds with the survey plan that was prepared in this case. Counsel for the plaintiff in his written submissions also pointed out that he was not pursuing the plaintiff’s claim based on fraud.

For the plaintiff’s claim based on mistake, the real question to be decided is whether the land which the plaintiff intended to gift the CCC is the same in area as the land shown in the scheme plan. To put the matter in another way, was the land which the plaintiff intended to gift the CCC different in area from the land shown in the survey plan and conveyed under the deed of gift. The onus of proof must be on the plaintiff. The required standard of proof is on the balance of probabilities. But as what is alleged is that the intention held by the plaintiff contradicts a document, which is the survey plan, and an instrument, which is the deed of gift, proof of the alleged mistake must be convincing.

If there was indeed a mistake in this case, the source of that mistake would lie in the survey of the land that was carried out by the surveyor. The mistake would then have been carried through to the survey plan that was prepared and approved and then onto the legal description contained in the deed of gift that was subsequently prepared, executed and registered. However, I am of the clear view that the evidence given by and for the plaintiff is unsatisfactory and thus not convincing. It falls well short of establishing on the balance of probabilities any mistake in the survey that was carried out to the land of the plaintiff. The plaintiff’s claim should therefore be dismissed.

I would have stopped there if it was not for the fact that the written submissions for the plaintiff raise an important issue I need to refer to. This is whether the Court has power to correct or rectify the land register. Counsel for the plaintiff has submitted, inter alia, that if the area of land contained in the deed that was registered is found to have been a mistake, then rectification of the land register be ordered. There is no provision in the Land Registration Act 1992/1993 which expressly provides for such a power in the Court. The only power to correct the land register which is expressly provided in the Act is the power given under s30 to the Registrar of Land to correct errors and supply omissions in the land register. Section 31 then gives to the Registrar power to apply to the Supreme Court for directions in respect of any of the matters provided under that section. If I had held that the deed that was registered contains a mistaken area of land, the question would have arisen whether the Court has power to order rectification of the land register as sought for the plaintiff. In view of the decision that I have reached to dismiss the claim, it is not necessary to come to a conclusive view on that question.

The English cases of Re Sea View Gardens v Tingey [1966] 3 All ER 935; Epps v Esso Petroleum Co Ltd [1973] 2 All ER 465; and Blacklocks v JB Developments (Godalming) Ltd [1981] 3 All ER 392 which were cited to the Court were concerned with claims for rectification of the land register on the ground of mistake. Under the Land Registration Act 1925 (UK) there is express provision giving the Court power to order rectification of the land register in certain circumstances. However, there is no similar provision under our Land Registration Act 1992/1993. The important New Zealand case of Housing Corporation of New Zealand v Maori Trustee [1988] 2 NZLR 662 that was also cited to the Court was concerned with the powers of the Registrar (not the Court) under the Land Transfer Act 1952 (NZ) to correct the land register. The question whether this Court has power to rectify the land register on direct application by a plaintiff must remain for decision to another day.

All in all then, the plaintiff’s claim is dismissed. Costs of $1,000 are awarded to each of the first defendant and second defendant plus any reasonable disbursements to be fixed by the Registrar.

CHIEF JUSTICE

Solicitors:
Richard’s Law Firm for plaintiff
TV Eti for first defendant
Attorney General’s Office for second defendant