Reed v Matailiga [2005] WSSC 1 (19 January 2005)

IN THE SUPREME COURT OF SAMOA

HELD AT APIA

BETWEEN

PATOSINA REED of Papauta, Retired,
AFAMASAGA DAN BETHAM of Potoga, Retired,
BURTON KIUPI BETHAM of Wellington, New Zealand, Retired
MARK EVERETT BETHAM of Lotopa, Managing Director,
CHERITH SULA RENNER of Auckland, New Zealand, Housewife and
ELON PILIOPO BETHAM of Tulaele, Valuer.
Plaintiffs

AND

VITOLIA MATAILIGA
of Matautu-uta, Domestic Duties
First Defendant

AND

MAKERITA LOIA
of Matautu-uta, Office Worker
Second Defendant

Counsel: S Leung Wai for plaintiffs
TRS Toailoa for defendants

Hearing: 29 November 2004
Judgment: 19 January 2005

JUDGMENT OF SAPOLU CJ

Introduction

The Court is here concerned with a motion dated 16 June 2004 by the plaintiffs to strike out the defendants statement of defence and counterclaim (intituled second amended statement of defence and counterclaim dated 26 May 2004) on various grounds including: (a) res judicata and issue estoppel, and (b) abuse of process. This judgment is confined to those grounds as I will be calling upon counsel for further submissions on one specific issue relating to abuse of process. The other grounds in support of the strike out motion will be dealt with in a separate judgment.

As it is worded, the plaintiffs strike out motion is directed at the defendants first amended statement of defence and counterclaim dated 22 July 2003. But as the defendants had filed a second amended statement of defence and counterclaim before the hearing of the strike out motion and I had decided to grant leave to the defendants to file their second amended statement of defence and counterclaim, the strike out motion has been treated as being directed at the second amended statement of defence and counterclaim. In my respectful view, there is no significant prejudice in this and will save time and expense in having to deal with a separate and subsequent strike out motion directed at the second amended statement of defence and counterclaim.

The original defendants sued by the plaintiffs were Vitolia Matailiga, first defendant, and Makerita Loia, second defendant. These defendants then filed a motion dated 25 June 2003 to join eleven additional defendants. I had decided to grant the motion for joinder so there are now thirteen defendants.

Relevant background

The late Situpe Leiataua, as it appears from the defendants pleadings, was the mother of the defendant Elena Leilua and the grandmother of the plaintiffs and eleven of the other defendants. The defendant Vitolia Matailiga is the widow of one of the sons of the said Situpe Leiataua. In all, Situpe Leiataua had seven children, two sons and five daughters. Only her daughter, the said Elena Leilua, is still alive.

As it also appears from the defendants pleadings, Situpe Leiataua died on or about 8 February 1964. At the time of her death she had executed a will in which she devised her land at Matautu-uta (“the disputed land”) to only one of her children, namely, her daughter Ota Betham the mother of the plaintiffs. The other children of Situpe Leiataua were not named as beneficiaries in her will. The said Ota Betham died intestate on 10 September 1967. On 1 September 1998, thirty four years after her death, probate of the will of Situpe Leiataua, was granted to the Public Trustee as executor of her will and the transmission was registered on 20 July 1999. The Public Trustee subsequently conveyed the disputed land to the administrator of the estate of the late Ota Betham. The said administrator was a son of Ota Betham and a brother of the plaintiffs. He had executed a deed of conveyance dated 20 October 2000 wherein the disputed land was conveyed to himself, the plaintiffs and their sister who had since died, as tenants in common in equal shares. The deed of conveyance was not registered until 18 November 2000.

Matalena Sioa, the mother of four of the defendants and one of the daughters of the said Situpe Leiataua, then lodged a caveat with the land registry against any dealings with the disputed land claiming an equitable interest in the disputed land as a beneficiary of her late mother’s estate. That caveat was registered on 30 November 2000. In October 2001 the plaintiffs filed a motion for removal of the caveat on the ground that the said Matalena Sioa had no caveatable interest in the disputed land and therefore no reasonable arguable case for maintaining her caveat. In reply, the then solicitors for the said Matalena Sioa filed an application to strike out the plaintiffs motion on the ground that the deed by which the disputed land was conveyed by the administrator of the estate of the said Ota Betham to the plaintiffs, was fraudulent and void for two specified reasons. I need not set out those reasons.

The motion by the plaintiffs for removal of the caveat and the strike out application by the said Matalena Sioa came up for hearing before this Court on 19 June 2002 and constituted “the first proceeding” in this matter. After the hearing, judgment was delivered on 4 July 2002 ordering removal of the caveat by Matalena Sioa from the land register on the ground that she had no caveatable interest to support her caveat. The strike out application by Matalena Sioa was dismissed as the Court did not accept the two reasons advanced in support of the ground of her application that the said deed of conveyance was fraudulent and therefore void. That was the end of the first proceeding. Matalena Sioa has since died.

After the first proceeding, as it appears from the plaintiffs pleadings, the solicitor for the plaintiffs wrote to Vitolia Matailiga and Makerita Loia, the two defendants originally cited in the statement of claim, that the areas of the disputed land they were occupying would be surveyed and then leased to them for a term of 20 plus 20 years at a nominal rent of one tālā ($1.00) per annum. The solicitor for the said two defendants advised in reply that the proposed leases were not acceptable to the defendants. Consequently, the plaintiffs served notice on the said two defendants to vacate the disputed land by a specified date. The said defendants failed to do so. The plaintiffs therefore brought a proceeding for eviction and for permanent injunction which I will call “the second proceeding” for present purposes.

In their statement of claim, the plaintiffs are effectively seeking an order to evict the defendants Vitolia Matailiga and Makerita Loia from parts of the disputed land they are presently occupying and an injunction to restrain them from continuing to remain on the disputed land. In view of the decision I had made granting the said defendants motion for joinder of eleven additional defendants, the plaintiffs may have to reconsider their remedies in view of the additional defendants and seek the necessary amendment to their statement of claim in due course.

In response to the statement of claim, the defendants have filed a statement of defence and counterclaim, a first amended statement of defence and counterclaim and a second amended statement of defence and counterclaim. As earlier indicated, it is the last statement of defence and counterclaim (intituled second amended statement of defence and counterclaim) that is relevant for present purposes. This statement of defence and counterclaim pleads several defences and counterclaims together rather than separately. For the purpose of pleading, the defences should be pleaded separately from the causes of action in the counterclaim. This would inform the other party with sufficient clarity as to which are the defences and which are the causes of action for the counterclaim and so avoid any possible confusion or misunderstanding.

Be that as it may, the primary defences pleaded by the defendants are: (a) the disputed land is customary land and not freehold land, and (b) the will by the said Situpe Leiataua in which she devised the disputed land to her daughter Ota Betham, the mother of the plaintiffs, contravened s.80 of the Samoa Land and Titles Protection Ordinance 1934 and therefore invalid. In consequence of the second defence mentioned, the defendants allege that the granting of probate of the said will to the Public Trustee, the registration of the transmission in favour of the Public Trustee, the deed conveying the disputed land from the Public Trustee to the administrator of the estate of the said Ota Betham, and the deed conveying the disputed land from the estate of Ota Betham to the plaintiffs must all be set aside as being void. It follows that the said Situpe Leiataua died intestate and the defendants (including the additional defendants who have been joined) have an interest in the disputed land by reason of the statutory rules of succession in an intestacy as one of the defendants is a surviving daughter of Situpe Leiataua, another defendant is a widow of one of the sons of Situpe Leiataua, and the rest of the defendants are grandchildren of Situpe Leiataua. Thus while the first defence mentioned is framed on the basis that the disputed land is customary land, the second defence is framed in the alternative on the basis that the disputed land is freehold land.

The causes of action pleaded by the defendants in support of their various counterclaims appear to be based on trust, proprietary estoppel and/or unconscionability, unjust enrichment, and adverse possession. The defendants cause of action in unjust enrichment should be pleaded separately from their cause of action in proprietary estoppel to reflect the elements of such cause of action.

Res judicata and issue estoppel

In England res judicata is used as a generic term to encompass both cause of action estoppel and issue estoppel: Thoday v Thoday (1964) 1 A11 ER 341 per Diplock LJ 352; Carl Zeiss Stifteing v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 per Lord Guest at 934, per Lord Upjohn at 946 – 947; Hines v Birbeck College (No 2) [1992] Ch 33 per Nourse LJ at 41; C (a minor) v Hackney London BC [1996] 1 A11 ER973 per Simon Brown LJ at 976. In Canada, the position appears to be the same as it is in England: Apotex Inc v Merck & Co [2002] FCA 210 per Malone J. A. In Australia the position is different. Res judicata refers only to cause of action estoppel but does not embrace issue estoppel: Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 per Dixon J at 531; Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446 per Fullagar J at 466; Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd [1993] FCA 342; (1993) 43 FCR 510 at 511 – 516, 532 – 533. It is important to bear in mind this difference in meaning of the term res judicata when reading relevant English, Canadian and Australian cases in order to avoid any possible confusion. Aside from this difference in meaning of the term res judicata, English, Canadian and Australian case law are essentially in agreement as to what constitutes cause of action estoppel and what constitutes issue estoppel and what are their objectives. I will deal separately with the rule that has come to be known as the rule in Henderson v Henderson [1843] EngR 917; (1843) 3 Hare 100 when I come to abuse of process.

In explaining what is meant by cause of action estoppel in Thoday v Thoday (supra), Diplock LJ said at p352:

“The first species, which I will call ‘cause of action estoppel,’ is that which prevents a “party to an action from asserting or denying, as against the other party, the existence of “a particular cause of action, the non-existence or existence of which has been “determined by a Court of competent jurisdiction in previous litigation between the same “parties. If the cause of action was determined to exist, i.e., judgment was given on it, it “is said to be merged in the judgment, or, for those who prefer Latin, transit in rem “judicatum. If it was determined not to exist, the unsuccessful plaintiff can no longer “assert that it does; he is estopped per rem judicatum.”

In Fidelitas Shipping Co v V/O Exportchleb [1965] 2 A11 ER 4, Lord Denning MR explained cause of action estoppel in these terms at p8:

“If one party brings an action against another for a particular cause and judgment is given on it, there is a strict rule of law that he cannot bring another action against the same party for the same cause.”

Thus, whether a cause of action is successful or not, once it is determined by a Court of competent jurisdiction, a party cannot, in a subsequent action, bring the same cause of action against the other party to the same cause of action. Furthermore, not only is a party prevented but so are his privies.

Issue estoppel is different from cause of action estoppel and applies to an issue of fact or law which has been determined in a judicial proceeding by a Court of competent jurisdiction, to prevent either party to such proceeding from raising the same issue again in subsequent proceeding between the same parties. The same applies not only to the parties, but also to their privies. In explaining issue estoppel in Blair v Curran [1939] HCA 23; (1939) 62 CLR 464, Dixon J said at 531:

“A judicial determination directly involving an issue of fact or law disposes once and for all of the issue, so that it cannot afterwards be raised between the same parties or their privies.”

That passage was adopted in Jackson v Goldsmith (1950) 11 CLR 446 by Fullagar J who then illustrated the distinction between cause of action estoppel (res judiciata) and issue estoppel by saying at 467:

“In the first place if A sues B to judgment and in subsequent proceedings between them a plea of res judicata is raised, the primary question will be whether the cause of action in the later proceedings is the same as that which was litigated in the former proceedings. This was the question which arose in the well-known case of Brunsden v Humphrey [1884] UKLawRpKQB 158; (1884) 14 QBD 141. It was held there that the causes of action were not the same. The injuria was the same but the damnum was different, and since damages was ‘of the gist’ of the particular action, the causes of action were not the same. The plea therefore failed. On the other hand, if A sues B to judgment and in subsequent proceedings between them a plea of issue estoppel is raised, the plea may succeed although the causes of action in the two cases are entirely different. The question will be whether an issue of fact or law which is raised in the later proceedings was an issue of fact or law which was also raised in the earlier proceedings and therein determined.”

In Ramsay v Pigram [1968] HCA 34; (1968) 118 CLR 271, Barwick CJ when discussing the doctrine of issue estoppel said at 276:

“Long standing authorities, in my opinion, warrant the statement that, as a mechanism in the process of accumulating material for the determination of issues in a proceeding between parties, an estoppel is available to prevent the assertion in those proceedings of a matter of fact or law in a sense contrary to that in which that precise matter has already been necessarily and directly decided by a competent tribunal in resolving rights or obligations between the same parties in the same respective interests or capacities, or between a privy of each, or between one of them and a privy of the other in each instance in the same interest or capacity. The issue thus determined, as distinct from the cause of action in relation to which it arose, must have been identical in each case.”

The requirements for issue estoppel in a particular proceeding were succinctly stated in Carl Zeiss Stifting v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 by Lord Guest at 935:

“The requirements of issue estoppel still remain (1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.”

The position in Canada as regards cause of action estoppel and issue estoppel is basically the same as it is in England and Australia. In Apotex Inc v Marck & Co [2002] FCA 210, cited by counsel for the plaintiffs, Malone J. A. said:

“Cause of action estoppel precludes a person from bringing an action against another where the cause of action was the subject of a final decision of a Court of competent jurisdiction. Issue estoppel is wider, and applies to separate causes of action. It is said to arise where the same question has been decided, the judicial decision which is said to create the estoppel is final, and the parties to the judicial decision or their privies are the same persons as the parties to the proceedings in which the estoppel is raised.......

Issue estoppel applies to preclude re-litigation of an issue which has been conclusively and finally decided in previous litigation between the same parties or their privies..... Issue estoppel applies where an issue has been decided in one action between the parties, and renders that decision conclusive in a later action between the same parties, notwithstanding that the cause of action may be different.... The second cause of action, however, must involve issues of fact or law which were decided as a fundamental step in the logic of the prior decision. Issue estoppel does not arise if the question arose collaterally or incidentally in the earlier proceedings.”

As to the issues of fact and law which attract the operation of issue estoppel, Dixon J explained in Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 at 532:

“In the phraseology of Lord Shaw, ‘a fact fundamental to the decision arrived at’ in former proceedings ‘and the legal quality of the fact’ must be taken as finally and conclusively established (Hoystead v Commissioner of Taxation [1926] AC 155). But matters of law or fact which are subsidiary or collateral are not covered by the estoppel. Findings, however, deliberate and formal, which concern only evidentiary facts and not ultimate facts forming the very title to rights give rise to no preclusion. Decisions upon matters of law which amount to no more than steps in a process of reasoning tending to establish or support the proposition upon which the rights depend do not estop the parties if the same matters of law arise in subsequent litigation.”

The policy considerations underlying res judicata, cause of action estoppel, issue estoppel, and the related doctrine of abuse of process have been stated in various phraseology in a number of authorities. Essentially the underlying policy considerations have been the public interest that there should be an end of or finality in litigation and that a party should not be vexed or harassed twice in the same matter: see, for example, Carl Zeiss Stiftung v Rayner & Keeler Ltd (No. 2) [1967] 1 AC 853 per Lord Reid at 909, per Lord Guest at 933, per Lord Upjohn at 946; Johnson v Gore Wood & Co [2001] 1 A11 ER 481 per Lord Bingham of Cornhill at 498 – 499; The Doctrine of Res Judicata (1996) 3^rd edition by Spencer Bower, Turner and Handley at 10.

With these statements of principles in mind, I turn now to consider the application of cause of action estoppel (synonymous with res judicata in Australia) and issue estoppel to the circumstances of this case. As it has been mentioned earlier, in the first proceeding the parties were the same plaintiffs as in the present proceeding and Matalena Sioa the mother of four of the present defendants. None of the present defendants was a party to the first proceeding. What that proceeding was concerned with was a motion by the plaintiffs to remove the caveat lodged by Matalena Sioa against the plaintiffs' title to the disputed land and an application by Matalena Sioa to strike out the plaintiffs' motion. The Court decided that Matalena Sioa had no caveatable interest in the disputed land to support her caveat and therefore ordered its removal. There was no cause of action involved in that proceeding. In the second proceeding, the plaintiffs have filed a statement of claim for an action to evict the defendants who are occupying the disputed land and for a permanent injunction. A cause of action is pleaded in the statement of claim. The defendants on the other hand have filed a statement of defence and counterclaim pleading various defences and counterclaims. Various causes of action are pleaded in support of the counterclaims. Thus in the first proceeding there was no cause of action. In the second proceeding, various causes of action have been pleaded by the plaintiffs in their statement of claim and by the defendants in their statement of defence and counterclaim. But cause of action estoppel applies to prevent one party from re-litigating against another party in a subsequent judicial proceeding, a cause of action to which they were the same parties and had been determined in a previous judicial proceeding between them. So cause of action estoppel does not apply to the circumstances of this case. In reaching this conclusion, it is pointed out that the plaintiffs did not rely on cause of action estoppel but on issue estoppel.

With issue estoppel, there are two difficulties as to its applicability to the circumstances of this case. The first requirement of issue estoppel is that the issue which was decided in the previous proceeding which creates the estoppel must be the same as the issue that is raised in the subsequent proceeding: Carl Zeiss Stiftung v Rayner & Keeler Ltd (supra) per Lord Guest at 935. In the first proceeding, as mentioned earlier, two issues were raised and determined by the Court. The first was that Matalena Sioa did not have a caveatable interest in the disputed land to support her caveat which was therefore ordered to be removed. The second issue that was raised and determined was that the deed conveying the disputed land to the plaintiffs was not, for the reasons specified by Matalena Sioa, fraudulent and void. In the second proceeding, the issues raised by the defendants are quite different. The primary defences raised by the defendants are: (a) the disputed land is customary land and not freehold land, and (b) the will of Situpe Leiataua in which the disputed land was devised to the late Ota Betham, the mother of the plaintiffs, was invalid and therefore of no effect because it was contrary to the provisions of s.80 of the Samoa Land and Titles Protection Ordinance 1934. These issues were not raised or determined in the first proceeding. A number of consequences (not material for present purposes) which should follow if the defence that the will of Situpe Leiataua is successful are then pleaded by the defendants. The causes of action which have been pleaded by the defendants in their counterclaim raise issues of trust, proprietary estoppel, unjust enrichment and adverse possession. These issues were also not raised or determined in the first proceeding. So the issues raised and determined in the first (previous) proceeding are not the same as the issues raised in the second (subsequent) proceeding. There is therefore no identity of issues. This should be sufficient to dispose of the plaintiffs plea of issue estoppel. But as this is really the first Samoan case that the doctrine of issue estoppel has been raised in a substantial way, I will refer briefly to the applicability of the other requirements of the doctrine to this case.

The second requirement of issue estoppel stated in Carl Zeiss Stiftung v Rayner & Keeler Ltd (supra) by Lord Guest at 935 is that the judicial decision which is said to create the estoppel must be final. There is no difficulty with this requirement in this case. Counsel for the plaintiffs in his submissions argued that the decision of the Court in the first proceeding was final. Counsel for the defendants expressed no disagreement.

The third requirement of issue estoppel again raises difficulties. This requirement as stated in Carl Zeiss Stiftung v Rayner & Keeler Ltd (supra) by Lord Guest at 935 is that the parties to the judicial decision in previous proceedings or their privies were the same persons as the parties to the subsequent proceeding in which the estoppel is raised or their privies. In this case the parties to the first proceeding were not the same as the parties in the second proceeding. In the first proceeding, the parties were the plaintiffs and Matalena Sioa. In the second proceeding, the parties are the plaintiffs and the defendants. So there is no identity of parties. On that basis, the plea of issue estoppel would fail entirely unless the plaintiffs are able to show that the defendants, or some of them, were privies of Matalena Sioa in the first proceeding. Thus the question comes down to whether as a matter of fact and law, the defendants or some of them, were privies of Matalena Sioa in the first proceeding. This is not an easy question given the current state of the law. There are three classes of privies: privies of blood, title, or interest: Carl Zeiss Stiftung v Rayner & Keeler Ltd [1967] 1 AC 853 per Lord Reid at 910; Ramsay v Pigram [1968] HCA 34; (1968) 118 CLR 271 per Barwick CJ at 279. Halsbury’s Laws of England 4^th ed, para 1543, p 1641 gives ancestor and heir as examples of privies in blood and then cites some old English authorities. It may be thought that since four of the defendants are children of Matalena Sioa there was privity of blood between those defendants and Matalena Sioa in the first proceeding. I doubt whether the issue is as straightforward as that. I have decided to leave this question about privity of blood for further consideration to another day. After all, the first requirement of issue estoppel has not been satisfied and that is sufficient to dispose of issue estoppel for the purposes of this case.

As for privy in interest, the basic requirement is that the privy must claim under, through, or on behalf of, the person he is said to be a privy: Ramsay v Pigram [1968] HCA 34; (1968) 118 CLR 271 per Barwick CJ at 279; followed and applied in Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd [1993] FCA 342; (1993) 43 FCR 510, 521, 539; cited with approval in The Doctrine of Res Judicata (1996) 3^rd edition by Spencer Bower, Turner and Handley at 199. Applying that basic requirement of privy in interest to the circumstances of this matter, I am of the clear view that the defendants who are not children of Matalena Sioa are not, in the second (subsequent) proceeding, claiming under, through, or on behalf of, Matalena Sioa. Their various counterclaims in trust, proprietary estoppel, unjust enrichment and adverse possession are not made under, through, or on behalf of Matalena Sioa. These are personal claims made by those defendants on their own behalf directly against the plaintiffs. Likewise, the defence of invalidity raised against the will of Situpe Leiataua, has not been raised by those defendants, not the children of Matalena Sioa, under, through, or on behalf of, Matalena Sioa. So as far as those defendants are concerned, they were not privies of Matalena Sioa in the first (previous) proceeding. They are, therefore, not bound by any privity of interest. On that basis, the plea of issue estoppel will also fail against them in terms of the third requirement of the doctrine.

In respect of the defendants who are children of Matalena Sioa, the position is less clear. I say this because on the pleadings by the defendants, it is arguable that these defendants are not counterclaiming under, through, or on behalf of, their mother Matalena Sioa, notwithstanding a letter dated 19 May 2004 by counsel for the defendants, referred to by counsel for the plaintiffs, in which it is in effect said that the subsequent proceeding involves the “same parties” as in the previous proceeding. The Court, of course, is not bound by what was said by counsel for the defendants in his letter of 19 May 2004. The real question is whether the relevant defendants are, in the second (subsequent) proceeding, counterclaiming under, through, or on behalf of, their mother Matalena Sioa so as to make them privies of their mother in the first (previous) proceeding. The answer to this question depends in this case mainly on the defendants pleadings. What makes this matter somewhat difficult in relation to the defendants who are the children of Matalena Sioa is that, some of the defendants' pleadings say “the defendants and/or their parents.” But as this very issue was not covered in the submissions of either counsel, I have decided not to express an opinion on it.

All in all in then, as the issues which were decided in the first (previous) proceeding which is said to create the estoppel were not the same as the issues raised in the second (subsequent) proceeding, the plea of issue estoppel cannot succeed. It is therefore dismissed.

Abuse of process

The modern law on abuse of process in the context of res judicata, cause of action estoppel and issue estoppel was referred to in Atiifale Fiso v Peter Eugene Reid (2002) (Misc 70/02; unreported judgment delivered on 2 December 2002) where in delivering the judgment of the Samoa Court of Appeal, Lord Cooke of Thorndon cited certain passages from the judgments of Lord Bingham of Cornhill and Lord Millet in the House of Lords decision in Johnson v Gore Wood & Co [2001] 1 A11 ER 481. Lord Cooke of Thorndon said:

“An expression of the principle which has come to be cited very often in the last eighty years or so is contained in the judgment of Wigram V-C in Henderson v Henderson [1843] EngR 917; (1843) 3 Hare 100, 115 –

’.....when a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward.....The plea of res judicata applies, except in special cases..... to every point which belonged to the subject matter of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.’”

Lord Cooke of Thorndon continued:

“Henderson v Henderson and many subsequent cases have been reviewed in the House of Lords in Johnson v Gore Wood & Co [2001] 1 A11 ER 481. Delivering the leading speech, Lord Bingham of Cornhill concluded at pp498 to 499-

’It may very well be, as has been convincingly argued (Watt ‘The Danger and Deceit of the Rule in Henderson v Henderson: A new approach to successive civil actions arising from the same factual matter’ (2000) 19 CJQ 287), that what is now taken to be the rule in Henderson v Henderson has diverged from the ruling which Wigram V-C made, which was addressed to res judicata. But Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole.’

“Lord Bingham continued-

’The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the Court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abuse, and there will rarely be a finding of abuse unless the later proceeding involves what the Court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in early proceedings it should have been, so as to render the raising of it in later proceedings necessarily abuse. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the Court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether on given facts, abuse is to be found or not. Thus while I would accept that lack of funds would not ordinarily excuse a failure to raise in earlier proceedings an issue which could and should have been raised then, I would not regard it as necessarily irrelevant, particularly if it appears that the lack of funds has been caused by the party against whom it is sought to claim. While the result may often be the same, it is in my view preferable to ask whether in all the circumstances a party’s conduct is an abuse than to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances. Properly applied, and whatever the legitimacy of its descent, the rule has in my mind a valuable part to play in protecting the interests of justice’

“Similarly Lord Millet concluded at p525-

’While the exact relationship between the principle expounded by Sir James Wigram and the defence of res judicata and cause of action and issue estoppel may be obscure, I am inclined to regard it as primarily an ancilliary and salutary principle necessary to protect the integrity of those defences and prevent them from being deliberately or inadvertently circumvented.’”

Essentially, the plaintiffs' contention under this part of the case is that the matters now raised by the defendants in their statement of defence and counterclaim could and therefore should have been raised by Matalena Sioa in the first proceeding which was concerned with the plaintiffs motion for removal of her caveat. In my respectful view, the defendants counterclaims based on trust, proprietary estoppel, unjust enrichment and adverse possession are personal to the defendants and could not have been brought by Matalena Sioa in the first proceeding which was for the removal of her caveat. For proprietary estoppel and the alternative counterclaim for unjust enrichment (which should be repleaded separately from the cause of action in proprietary and should disclose the elements for a cause of action in unjust enrichment), the defendants are alleging that Situpe Leiataua encouraged them to develop and expend monies on the disputed land or had acquiesced with their use of the disputed land. They had therefore acquired an equity in the disputed land which is protectable under the doctrine of proprietary estoppel. Alternatively, if they are to vacate the disputed land or prohibited from re-entering, the disputed land, then they are entitled to compensation for the improvements they had made to the disputed land on the basis of the restitutionary cause of action for unjust enrichment. For their counterclaim based on adverse possession, the defendants are saying that they have been in occupation of the disputed land as trespassers in excess of the 12 years limitation period under s.9 of the Limitation Act 1975 and have therefore acquired possessory title to the disputed land under s.10 of the Act. It will be noticed that there is no mention of Matalena Sioa in these counterclaims. These counterclaims are personal to the defendants themselves. So Matalena Sioa could not have brought those counterclaims in the first proceeding. If she had, she would probably have been met by a successful strike out motion from the plaintiffs on the ground that she had no standing to sue as the counterclaims belong to the defendants, not to her. Furthermore, a proceeding for removal of a caveat is, as a matter of practice, dealt with by way of summary procedure on the basis of affidavits and submissions by counsel. The trial of a claim or counterclaim usually involves the calling of evidence, examination, cross-examination and re-examination of witnesses. It will therefore be inappropriate for a proceeding for removal of a caveat to be tried concurrently with a proceeding for a claim. If this had happened in the removal of caveat proceeding, the claim by Matalena Sioa for causes of action which belong to the defendants, would probably have also been met by a successful application from the plaintiffs for separate trials. It is for these reasons that I have said, that Matalena Sioa could not have brought the defendants counterclaims based on trust, proprietary estoppel, unjust enrichment and adverse possession in the first proceeding for removal of her caveat. There is therefore no abuse of process on the basis that the defendants are now, in the second proceeding, raising matters (trust, proprietary estoppel, unjust enrichment and adverse possession) which could and therefore should have been raised by Matalena Sioa in the first proceeding. I must, however, make it clear that I have not expressed any views on the merits of the causes of action pleaded by the defendants in their counterclaim.

As for the defences that the disputed land is customary land and that the will of Situpe Leiataua is invalid and of no effect, I will deal with them on the basis of the defendants pleadings in their statement of defence and counterclaim. What the defendants are saying in relation to the first defence is that the disputed land is customary land and not freehold land. Article 102 of the Constitution prohibits the alienation of customary land. So the purported alienation of the disputed land by Situpe Leiataua under her will to her daughter Ota Betham, the plaintiffs' mother, contravened Article 102 of the Constitution and therefore void.

What is alleged by the defendants is that Situpe Leiataua had acquired the disputed land as individual customary land. Over the years a number of cases involving the disputed land were heard at the Land and Titles Court which had jurisdiction to deal with disputes over customary land. It is further alleged by the defendants that in the early 1930s, the said Ota Betham, the plaintiffs' mother, tried to convert the disputed land into European land but Situpe Leiataua did not wish her land to be converted into European land. In the mid 1950s, Ota Betham again tried to have the disputed land converted into European land but Situpe Leiataua again did not wish her land to be so converted. It is also alleged that when Situpe Leiataua died in 1964, the disputed land was still customary land. In 1970 or 1971, the Public Trustee, as executor of the will of Situpe Leiataua, made application to the Land Commission under the provisions of the Land Titles Investigation Act 1966 for the disputed land to be declared as freehold land. On 20 June 1973, the Land Commission declared the disputed land as freehold land pursuant to its powers under the Act. Then followed a lapse of years until the estates of Situpe Leiataua and Ota Betham were administered in 1999 to 2000 and the disputed land conveyed to the children of Ota Betham. In November 2000 Matalena Sioa lodged a caveat forbidding all dealings with the land. The plaintiffs subsequently filed a motion for removal of the caveat. In reply Matalena Sioa filed an application to strike out the plaintiffs' motion on the ground that the deed conveying the land to the plaintiffs was fraudulent for specified reasons. The Court, as earlier mentioned, held that Matalena Sioa had no caveatable interest to support her caveat and therefore ordered its removal. Matalena Sioa’s strike out application was also dismissed.

In effect what the plaintiffs are now saying is that the defence raised by the defendants could and should have been raised by Matalena Sioa in the plaintiffs proceeding for removal of her caveat but she did not do so. Therefore what the defendants are now doing in raising the same defence in the second proceeding is an abuse of process. There are important factual issues involved here. These are: (a) the parties to the first proceeding are different from the parties to the second proceeding, (b) the two proceedings are quite different by nature, and (c) why did Matalena Sioa not raise this issue about “customary land” in the first proceeding.

With respect to counsel for the plaintiffs who at this stage is the most knowledgeable member of the bar in this area of the law, I have come to the conclusion that there is here no abuse of process. I refer by way of analogy to the case of C (a minor) v Hackney London Borough Council [1996] 1 A11 ER 973. In that case, the appellant, a minor, lived with her mother in the same house which belonged to the respondent. The mother then brought an action for personal injury against the respondent claiming that the state of continuing disrepair and dampness of the respondent’s house was the cause of her ill-health. The Court awarded damages to the mother as compensation. Subsequently, the appellant, by her stepfather as next friend, brought an action against the same respondent on the basis of the same state of continuing disrepair and dampness of the respondent’s house. The respondent then applied to strike out the appellants action contending, inter alia, that the principle of res judicata in its wider sense applied to the appellants action. The trial Judge accepted the respondent’s contention and struck out the appellant’s action as an abuse of process. The trial Judge gave three reasons for his decision: the first, the plaintiff’s claim could and should have been brought at the same time as her mother’s action; the second, was that the appellant’s mental condition was such that she was entirely dependent on her mother so far as legal proceedings were concerned; the third reason is not relevant to the present case. On appeal by the appellant to the Court of Appeal, Simon Brown LJ in delivering the judgment of the Court said at p977:

“In seeking to support the Judge’s holding, Mr Lewis for Hackney [the appellant] relies heavily upon Yat Tung Investment v Dao Heng Bank and Talbot v Berkshire CC. Yat Tung Investment v Dao Heng Bank, he submits, allows the doctrine of res judicata in the wider sense to be applied against strangers; Talbot v Berkshire CC allows it to be invoked to bar a personal injury claim which could, and more conveniently should, have been brought in earlier proceedings. He contends that the Judge was entitled to find as he did that C’s [the appellant’s] dependence on her mother created a sufficient nexus between them that they should be regarded effectively as the same party.

In my judgment, that is an impossible argument, one that stretches the bounds of the doctrine beyond breaking point. If it were right, it would be right equally in the context of a road accident case where mother and infant child are both injured by the defendant’s negligence. A mother sues and recovers judgment. Is it to be said that her child is thereby barred from making any subsequent claim? Such would be to my mind a novel and insupportable suggestion.”

Simon Brown LJ then continued at p979:

“It follows from all this that in my judgment the doctrine of res judicata even in its widest sense has simply no application to the circumstances of the present case and that the Judge erred in ruling to the contrary.....

All that said, this judgment should not be taken as an encouragement to lawyers or their clients to follow the course in fact adopted here. As the Judge rightly recognised, in circumstances such as these, it is plainly in the public interest to have a single action in which the claims of all affected members of the household are included, rather than a multiplicity of actions.”

I cannot help thinking that in the present case, Matalena Sioa did not raise this question that the disputed land is customary land in the first proceeding because she believed the land was freehold land and not customary land. Thus she could not raise an issue she did not believe in. She knew that the disputed land belonged to her mother Situpe Leiataua. The name Situpe suggests that her mother was not a matai whereas customary lands are held under matai titles. It is also common knowledge that it was not until recently that Samoan women increasingly became holders of matai titles. I also cannot help thinking that Matalena Sioa, who lived on the disputed land until she died, was aware of the decision made by the Land Commission in 1973 in which the disputed land was declared freehold land, not customary land. Thus she could not have raised this issue that the disputed land is customary land contrary to what she knew and believed in. With respect, Matalena Sioa might have felt that it would have been dishonest for her to assert something which was contrary to her knowledge and belief. Thus I am not able to accept that the defendants are now raising as a defence an issue that Matalena Sioa could and should have raised in the first proceeding. How could Matalena Sioa have raised an issue that was contrary to her knowledge and belief? On that basis, I am not able to accept in this regard the contention for the plaintiffs that it is an abuse of process for the defendants to raise in the second proceeding an issue that Matalena Sioa could and should have raised in the first proceeding. However, if I am wrong in what I have just said, then I have serious reservations about accepting the contention for the plaintiffs on the basis of what is said in Johnson v Gore Wood (supra) and the analogous case of C (a minor) v Hackney London BC (supra). The onus of establishing abuse of process is on the party raising it.

Having said that, I am of the respectful view that the defence based on the allegation that the disputed land is customary land should nonetheless be struck out. The present defence, in effect, poses a real challenge, in an indirect way, to the decision of the Land Commission which declared the disputed land to be freehold land. That decision has stood unchallenged for about thirty years. The usual procedure for questioning the validity of a decision by a statutory body like the Land Commission is by way of an application for judicial review in which the statutory body concerned is cited as a party and given the opportunity to defend the validity of its decision. That will be a public law proceeding. In this case, an indirect challenge is posed against the validity of the decision of the Land Commission by way of a defence to a civil action in a private law proceeding. The Land Commission is not a party to that proceeding. The present private law proceeding is not the appropriate proceeding for raising the customary land defence and thereby challenging the validity of the Land Commission’s decision. On that basis, the customary land defence is struck out.

I leave open the important question of whether a decision of a statutory body, as the Land Commission is, can give rise to issue estoppel or abuse of process in a later judicial proceeding, where a party to such proceeding raises an issue that had already been raised and determined by the statutory body in the exercise of its jurisdiction, as it has happened in this case, or raise an issue that could and should have been raised in a previous proceeding before the statutory body. On this question see for example Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 per Gibbs J at 452 – 456; Kuligowski v Metrobus [2004] HCA 34 (presently available in Samoa only on the internet). In Daera v Guba, Gibbs J said at 453:

“The doctrine of estoppel extends to the decision of any tribunal which has jurisdiction to decide finally a question arising between parties, even if it is not called a Court, and its decision is derived from statute or from the submission of parties, and it only has temporary authority to decide a matter ad hoc: see Halsbury’s Laws of England, 3^rd edition, vol 15, pp. 212-214; Spencer Bower and Turner on Res Judicata, 2^nd edition (1969), pp. 21-28.”

The particular passage was cited with approval by the High Court of Australia in Kuligowski v Metrobus.

There is one other matter. It is not clear from the defendants pleadings which is the matai title that holds the “pule” over the disputed land if it is customary land. As mentioned earlier, the name Situpe is not a matai title, unless the defendants have evidence to the contrary. If the disputed land is customary land, then should not the holder of the matai title which has the “pule” be cited as a party to the present proceeding.

As for the second defence I have mentioned, namely, whether the will of Situpe Leiataua contravened s.80 of the Samoa Land and Titles Protection Ordinance 1934 and therefore void, the plaintiffs contention is that for the defendants to raise that issue in the second proceeding, when Matalena Sioa could and should have raised that issue in the first proceeding, is an abuse of process. I have decided to call for further submissions from counsel on that issue. It was also raised at the hearing of this matter in the submissions by counsel for the plaintiffs that s.80 of the Samoa Land and Titles Protection Ordinance 1934 (now repealed) was discriminatory and therefore contravened the anti-discrimination provisions of Article 15 of the Constitution. In this regard, counsel may wish to consult on the internet the Canadian cases on the relevant Canadian anti-discrimination constitutional provision and perhaps the decisions of the European Court on Human Rights on the slightly different provisions of Article 15 of the European Charter of Rights. Counsels submissions to be filed with the registrar 14 days from the delivery of this judgment. The Court will then deliver a separate judgment on that issue and the remaining issues counsel had raised at the hearing of this matter.

CHIEF JUSTICE

Solicitors:
Leung Wai Law Firm for plaintiffs
Toailoa & Associates for defendants