Ott v Leuluniu [2005] WSSC 41 (21 January 2005)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

LEALIIEE RUDY OTT,
Businessman of Leone
Plaintiff

AND:

LEAUTULI LEULUNIU,
Matai of Salelologa, Savaii.
Defendant

Counsel: Mr H.J. Schuster for Plaintiff
Mr T.V. Eti for Defendant

Hearing: 12 August 2003, 19 January 2005
Date of Order: 21 January 2005

ORDER OF VAAI J

In August 1978 the plaintiff leased from one Samuelu Su’a, uncle of the defendant, customary land known as Vaio at Salelologa Savaii for a term of twenty years at a rental of $100 per annum. The lease agreement was prepared by the department of Lands and Survey (as it was then called) following publication of the intended lease in the Savali newspaper to comply with the requirements of the Alienation of Customary Lands Act 1965. The lease agreement was signed by Samuelu Su’a as the beneficial owner of the customary land, the Minister of Lands and Survey Department as trustee for the beneficial owner (pursuant to the Alienation of Customary Lands Act) and by the plaintiff as lessee.

On the 14th June 1991 the plaintiff executed another lease agreement of the same land at the request of the third party, son of Samuelu Sua, as the third party demanded an increase in rents from $100 per annum to $200 per annum. The third party had in his possession a letter of authorization dated the 11th June 1991 from his father to take charge of the said leased land which was filed with the department and accepted by the department as genuine after verification by the department. In September 1991 Su’a Samuelu passed away.

Since 1978 the plaintiff had leveled the sloping uneven land by pouring in quantities of soil and rock fill and he used the land for storing of his heavy roading machineries. But in 1996 before the initial period of 20 years has expired the defendant moved onto the land with the encouragement of the other members of his family including the then holder of the title Su’a (Su’a Mesepa) and third party’s sisters; and had since despite protests from the plaintiff the third party and the department of Lands and Survey, occupied and built permanent house on the leased land and forbid the plaintiff from entering the land.

In his statement of Defence the defendant admits that he occupied the land in 1996 because according to Su’a Mesepa and the majority of Su’a Samuelu’s children the lease in question had already expired. Whether the defendant is relying on the lease signed by Su’a Samuelu himself in 1978 or by the third party in 1991, his assertion that the 20 year lease has expired cannot possibly be correct. If Su’a Mesepa as successor in title to Su’a Samuelu has any claim as beneficial owner to the land (which in my view she has not) then she was bound by the lease agreement signed by Su’a Samuelu. When the defendant forcibly entered the leasehold land and kept out the plaintiff he did so in contravention of the lease agreement. By his own admission, the defendant was living at the village of Palauli but he was in 1996 physically banished by the village of Palauli after the Parliamentary General Elections and he required land to build his house and was told by Su’a Mesepa to build on leasehold land as the lease has expired. Under cross-examination the defendant conceded that there were several meetings in 1996 and 1997 attended by himself, the plaintiff, third party and officials of the Lands and Survey department and at one meeting with officers of the department of Lands and Survey in 1997 he did agree to vacate the land. Leautuli Salamasina, a matai and family member of the defendant also admitted under cross-examination that at the meeting with officers of the department of Lands and Survey which he and the defendant attended, they agreed to remove the building and vacate the leasehold within 3 months. But again it was the titleholder Su’a Mesepa who told them otherwise as the lease has expired; Su’a Mesepa did not give evidence, she also has passed away. She did not attend the meetings.

The principal defence and main contention as counsel for the defence strenuously argued in his written submissions is the validity of the letter of authority dated 11th June 1991 which purportedly granted the third party authority from his father Su’a Samuelu to deal with the land. It is alleged that the third party obtained the signature by fraud and in support of the allegation Su’a Samuelu’s widow (step-mother of the third party) and Su’a Samuelu’s daughter (sister of the third party) both testified that the third party came to the house with the documents already prepared and told Su’a Samuelu to sign them without reading the documents to Su’a Samuelu who was then a very old and sick man and unable to read. Su’a Samuelu signed the paper after being told by the third party that the documents were required to get some money.

While the third party admits preparing the documents he said he did so on instructions from his father and no one was at the house when his father signed the papers in 1991. And when he produced the documents to the office of the Lands and Titles Court at Tuasivi he was accompanied by Tufuga Pule Tuvaifale a senior courts officer to see Samuelu Su’a. A letter signed by T.P. Tuvaifale dated 14th June 1991 is produced as an exhibit to confirm that Mr T.P. Tuvaifale did visit Su’a Samuelu. Counsel for the defence correctly questions the credibility of the evidence of the third party on the identity of the court officer Tufuga Pule Tuvaifale and although I agree that there was no such person I do however accept that there was a senior deputy registrar Tupai Potoa’e Tuvaifale at Tuasivi at the time. I accept it was Tupai Potoae Tuvaifale who accompanied the third party to see Samuelu Sua on the 14th June 1991.

It does not escape my mind that the issue of fraud was never raised in 1996 when the defendant, with the encouragement of the then titleholder Su’a Mesepa and other members of the family, forcibly moved onto the land and constructed building. Indeed during the meetings with the plaintiff, the third party and officers of the Lands and Survey department, the defendant and others did not raise the issue of fraud.

It was not until these proceedings were instituted that the issue of fraud was first raised; there is no explanation why it was not raised in 1996 or in 1997.

In any event it is totally irrelevant for the purpose of these proceedings whether the lease signed in 1978 by Su’a Samuelu or the lease signed in 1991 by the third party was the operative lease. The defendant was not a party to those two leases; he has no standing to challenge the validity or otherwise of those leases. Similarly Su’a Mesepa the title holder who succeeded Su’a Samuelu has no status to challenge. Neither Su’a Mesepa nor the defendant have any claim to the leased land which was gifted by the Alii and Faipule of Salelologa to Su’a Samuelu. These lands have been the subject of litigation in the Lands and Titles Court; the several parcels were given to those persons (whether matais or not) who assisted with the construction of the wharf and road at Salelologa which means Su’a Mesepa and the defendant have no claim as heirs to the land gifted to Su’a Samuelu. Since they are not heirs of Su’a Samuelu and since they have no claim to the land they have no locus standi to challenge the lease and as a consequence they cannot raise fraud as a defence. An order for eviction against the defendant is therefore appropriate. The plaintiff has abandoned his claim for damages. The defendant and all his family, and any other person on the land leased to the plaintiff are to vacate and remove all buildings and structures from the said land by the 28th February 2005.

The defendant is ordered to pay costs of $1,200.

JUSTICE VAAI