OF Nelson Properties Ltd v Feti [2008] WSSC 19 (28 April 2008)

IN THE SUPEME COURT OF SAMOA
HELD AT APIA

BETWEEN:

O.F. NELSON PROPERTIES LIMITED
a company duly incorporated and having its registered office
at Apia and carrying on business at Palauli in Savaii.
Plaintiff

AND:

TOLUONO FETI, TOLUONO MAMERE, TOLUONO HAN,
TOLUONO PENE, TOLUONO NOME
being true heirs of TOLUONO MATENA LEALIIFANO,
and SALU SIAAGA, LELEISIUAO OTINERU, SAVEA AU,
LEMOA ESEKIA, LATU ASO, and MA’I MEKI,
all Matais and as representatives of Alii & Faipule of Vailoa Palauli
under Rule 36 of the Supreme Court (Civil Procedure) Rules 1981.
Defendants

Counsel: T K Enari for plaintiff
L T Malifa for defendants

Hearing of evidence: 20, 21 December 2005; 26 November 2007
Written submissions: 28 January 2008
Hearing on written submissions: 22 April 2008
Judgment: 28 April 2008

JUDGMENT OF SAPOLU CJ

Pleadings

[1] The plaintiff in these proceedings is O.F. Nelson Properties Ltd, a duly incorporated company. The defendants, as they appear from their first amended statement of defence and counterclaim which replaces previous statements of defence filed, are the representatives of the Alii and Faipule of the village of Vailoa, Palauli.

[2] From the pleadings by the plaintiff, it seems that its action is founded on the tort of trespass to land even though the word "trespass" or the expression "trespass to land" is not mentioned in the statement of claim. That seems to be implied from paragraph 8 of the statement of claim which pleads: "On the 5th day of July 2004 the defendants and/or their representatives and agents entered onto the plaintiff’s land and advised the plaintiff’s employees to vacate the plaintiff’s land by 4:00pm that day." The plaintiff’s prayer for relief then seeks, inter alia, an injunction requiring the defendants to vacate and deliver up possession of the plaintiff’s land and to remove their structures from the plaintiff’s land. The plaintiff’s cause of action in trespass could have been pleaded with more particularity and clarity.

[3] As pleaded in the plaintiff’s statement of claim, the land which is the subject of these proceedings comprises of six parcels of land and it consists of a total area of 1,154a. 3r. 30p. The land is situated at Vailoa, Palauli, and is claimed by the plaintiff to be freehold land which belongs to it.

[4] The defendants, on the other hand, plead in their first amended statement of defence and counterclaim that the land is customary land which belongs to the Alii and Faipule of Vailoa, Palauli. Implied in this is that the people of Vailoa, Palauli, are therefore entitled to enter into possession of the land and to remain on it.

Proceedings

[5] Soon after the commencement of the hearing of these proceedings on 20 October 2005, the plaintiff’s counsel referred to some old documents produced by the parties in relation to the disputed land. Counsel then indicated to the Court that the bulk of the evidence to be adduced by the plaintiff will be on the past disputes in relation to the disputed land.

[6] Given that indication from counsel for the plaintiff and the nature of the parties pleadings which were already before the Court, I asked counsel for the plaintiff whether the real issue in these proceedings is ownership of the land. Counsel for the plaintiff confirmed that is so. Counsel for the defendants did not dispute that. That is clear from the transcript of the proceedings on 20 October 2005.

[7] However, at the hearing on 22 April 2008 on the written submissions by counsel, both counsel informed the Court that it was their common understanding that the hearing already held related only to the question of ownership of the disputed land and they had proceeded on that basis.

[8] I have to say that my understanding of what that hearing was about is not the same as that of both counsel. I did ask counsel for the plaintiff at the hearing of these proceedings on 20 October 2005 whether the real issue in these proceedings is ownership of the land. Counsel for the plaintiff confirmed that is so. That was not disputed by counsel for the defendant. The transcript of the evidence shows that was what happened. I did not say that the hearing was to relate only to the question of ownership of the land. No such thing can be found in the transcript of the proceedings.

[9] However, to avoid any possible injustice from the misunderstanding that has occurred, I have, for the purpose of this judgment, decided to proceed on the basis of counsel’s common understanding. Perhaps that explains why the plaintiff did not adduce any evidence to prove certain parts of its claim which would have been dismissed on that basis if it was not for the common understanding of counsel.

[10] On the basis of the common understanding of counsel, their written submissions filed on 28 January 2008, and the answers they gave to questions from the Court during the hearing on those submissions on 22 April 2008, the issues for determination in this judgment would be the question of ownership of the disputed land and, the related question of its status.

Title to land

[11] One of the difficulties in these proceedings insofar as it concerns the question of title and ownership of the land, is that it relates, in part, to events that occurred from 1872 to 1912. In consequence, the evidence relating to those events would be hearsay and therefore prima facie inadmissible as none of the people who participated in the events that occurred from 1872 to 1912 is still alive today. To overcome the exclusionary effect of the hearsay rule, both counsel agreed to admit by consent all of the evidence which consists primarily of documentary material relating to those events and leave it to the Court to decide what weight, if any, is to be given to each piece of evidence. That is borne in mind in my consideration of the evidence.

[12] The other difficulty in these proceedings is that some of the documentary material relating to the history of ownership of the land cannot be produced to the Court. Presumably, those documents are lost and cannot be found. However, the existence of those documents can be gathered from the references to them in the documents that were produced in evidence.

[13] It should also be mentioned that a lot of the documentary material in this case which relate to events that took place from 1872 to 1912 is in the German language as Samoa was administered as a protectorate by Germany during the that period. That material was translated into the English language by Ms Ulrike Hertel a German national who is now residing and working in Samoa and was called as a witness by the plaintiff. She was of further assistance by being able to give her evidence fluently in Samoan for the information of some of the defendants.

[14] The documentary material produced by the plaintiff shows that on 2 February 1872, Tualau Siale (Tualaulelei Siale) a paramount matai of Vailoa, Palauli, sold and conveyed to one Frank Magnus Wilson (Wilson), a European, all the lands known as Letolo situated at Vailoa, Palauli; together with all adjacent lands which he had mortgaged to Wilson. The written English translation of this sale which was produced in evidence by the plaintiff is signed and sealed by Tualau Siale and witnessed by one Autagavaia and another person whose name appears to be "Ineafaifua".

[15] The sale between Tualau Siale and Wilson was later recorded by deed dated the 4th of May 1872.

[16] The said sale was subsequently confirmed by Tualau Saumani in a written statement dated 20th April 1886 and by Leleisiuao Peni, another paramount matai of Vailoa, Palauli, in a written statement dated 6th December 1886.

[17] By deed dated the 2nd of May 1886, the said Frank Magnus Wilson gifted the said land to his daughter Ellen and his son Charles.

[18] A land claim No.2233 was then lodged by Wilson on behalf of his children with the Land Commission that was established under Article IV of the Final Act of the Conference of Berlin on Samoan Affairs of 14 June 1889 to adjust and settle all claims by aliens of titles to land, or interest therein, in Samoa. In the written submissions by counsel for the plaintiff, it is asserted that the said land claim was lodged by Wilson with the Land Commission on the 18th of September 1891.

[19] As it appears from land claim 2233, the total area of the land that was claimed was approximately 970 acres. The names of the lands included in the claim were Faleata, Ala faalava, Lealaiamoa and Letalo. The boundaries and measurements of the said lands are not all clear from the photocopy of the claim that was produced. As it appears from the documentary material produced for the plaintiff, the Land Commission confirmed to Wilson a land area of 1,500 acres.

[20] On the 19th of September 1894, one Vavauoti, an orator of Palauli, lodged an objection on behalf of the Faleao of Palauli with the Land Commission against the claim by Wilson on behalf of his children. Upon investigation by the Land Commission, it was found that the land claimed by Wilson amounted to about 6,000 acres for which $1,500 were paid. There was no dispute that $1,500 were paid but Vavauoti claimed that the consideration was inadequate. He agreed that the Commission should decide what amount of land was reasonable to be a just and equitable compromise between the parties. The compromise that was agreed to between the parties and confirmed by the Land Commission was that 1,500 acres was confirmed to the claimants to be shown on a map plotted by the surveyor Maben and the balance of the land was given to the objector Vauauoti who appeared on behalf of the Faleao of Palauli. Pursuant to the compromise, the objection by Vavauoti was withdrawn.

[21] In the report by the Land Commission on claim No.2233 to the then Chief Justice of the Supreme Court established under Article III of the Final Act of the Conference of Berlin on Samoan Affairs of 14 June 1889, it is stated that the claimants Ellen and Charles Wilson have title to the land by deed from Tualau Siale to their father F.M. Wilson dated 24th May 1872 and by transfer from their father to them to the extent of fifteen hundred acres as shown on the plan of surveyor Maben and that the claimants are the lawful owners of the land in fee.

[22] Perhaps, I should point out at this junction that in English law, the words "in fee" are used in relation to estates of freehold so that there are the fee simple and the fee tail: see Land Law in New Zealand (2003), vol 1, para 3.004 p.47 by Hinde, McMorland and Sim. Freehold estates in fee tail were abolished by s.16 of the Property Law Act 1952 (NZ) which still applies in Samoa.

[23] To continue with the report to the Chief Justice of the Supreme Court by the Land Commission on claim No. 2233, the report then states that the claim is confirmed to the extent above stated in terms of the compromise agreement. That means the claim by Wilson on behalf of his children was confirmed to the extent of 1,500 acres in terms of the compromise agreement. The report then concludes by saying that the claim is not disputed to the extent confirmed, the objector having withdrawn his objection under the above compromise to the extent above stated.

[24] After the proceedings before the Land Commission in 1894, the whole of the land confirmed under claim No. 2233 was transferred by Ellen and Charles Wilson back to their father Frank Magnus Wilson by deed dated 13th July 1895 which was registered in volume 6 folio 11 of the Samoan Land Records at the time. However, it appears from a written statement dated 16 October 1905 by Rich Hetherington-Carruthers, the lawyer for Harry Jay Moors in the law suit between Moors and the Alii and Faipule of Palauli and Satupaitea, that by settlement of 9 March 1896, the children of Frank Magnus Wilson gave 350 acres of the 1,500 acres confirmed to them by the Land Commission to the German company DHPG for cancellation of their father’s debt with that company. That must have left a balance of 1,150 acres of the total land confirmed by the Land Commission to Wilson’s children Ellen and Charles Wilson.

[25] It then appears from the documentary material which counsel for the plaintiff submitted together with his written submissions that a survey was carried out of the land confirmed by the Land Commission to Ellen and Charles Wilson. On the basis of that survey, the Supreme Court issued Court Grant 721, dated the 5th of March 1897, which granted to Frank Magnus Wilson, who had by then obtained the land back from his children, a total area containing 563 acres more or less. This was much less than the area of 1,500 acres confirmed by the Land Commission to Ellen and Charles Wilson.

[26] On the 17th of August 1901, Wilson sold the said land to the merchant Harry Jay Moors (Moors). Differences soon arose between Moors and the people of Vailoa, Palauli, as Moors started to assert his rights of ownership to the total area of the land he had purchased from Wilson. This total area of land, according to Moors, was 1,500 acres which had been confirmed by the Land Commission to the children of Wilson and later purchased back by Wilson from his children, less the 350 acres given by the children of Wilson by settlement of 9 March 1896 to the German company DHPG for cancellation of their father’s debt with that company. Moors also claimed that the survey on which Court Grant 721 was based was incorrect.

[27] The disputes between Moors and the people of Vailoa, Palauli over the land, resulted in Court proceedings between Moors and the Alii and Faipule of Palauli on 21 November 1905 before the then Imperial District Court. Those proceedings continued on to the 23rd of January 1906 and the 17th of July 1906.

[28] On 27th July 1906, the Imperial District Court comprising of Imperial District Judge Dr. Imhoff and two assessors delivered its decision. The decision is in the German language and has been translated into the English language by the afore-mentioned Ulrike Hertel. It appears from the reasons given by the District Court for its decision, that the Court found that because the surveyor who had surveyed the land purchased by Frank Magnus Wilson from Tualau Siale had wrongly surveyed the western boundary, only an area of 563 acres was established for which Court Grant 721 was issued by the Supreme Court. However, Wilson, after a lapse of a reasonable time, did not claim the transfer to him of the 1150 acres (which was the remaining balance of the land after the 350 acres which had been transferred to (DHPG) even though he could have claimed his rights to the full transfer of the 1150 acres immediately after he was informed about the mistake concerning the western boundary. In consequence, the District Court held that Wilson had lost his right to question the validity of Court Grant 721 and Moors who was Wilson’s successor in title to the land, could not claim any better right to the land than Wilson had. In terms of the decision by the Imperial District Court, Moors was entitled only to the 563 acres given under Court Grant 721.

[29] On 14th of September 1906, Rich Heatherington-Carruthers, the lawyer for Moors, lodged an appeal in the Supreme Court against the decision of the Imperial District Court claiming that the land under Court Grant 721, should have been 1150 acres.

[30] On 15th December 1906, Officer Williams was appointed by the Government to be the agent and legal adviser for the Alii and Faipule of Palauli.

[31] The appeal by Moors against the decision of the Imperial District Court of the 27th of July 1906, however, did not proceed to a hearing before the Supreme Court as it was settled by agreement between Moors and the village of Vailoa, Palauli.

[32] By Court agreement of 18 August 1907 VI 109/07 and 20 March 1912 38/12 before District Judge Dr. Sohubert between H.J. Moors, the Treasury of the Protectorate Samoa, and Lelei, Tolo, Laupue and Alipia as representatives of the Alii and Faipule of Vailoa, Palauli, another area of 587 acres was given to Moors in addition to the area of 563 acres under Court Grant 721 which the Imperial District Court had held in its decision of 27th July 1906 was the only land to which Moors was entitled. The additional area of 587 acres granted to Moors adjoins the area of 563 acres under Court Grant 721. The two areas comprised a total of 1150 acres.

[33] Under the same Court agreement of 19 August 1907 VI 109/07 and 20 March 1912 38/12, 200 acres were to be sub-divided from the 563 acres under Court Grant 721 and transferred to the Treasury of the Protectorate Samoa. In terms of an Order dated 8 July 1912 by Imperial Governor Schultz, the people of Palauli were given the right to the 200 acres transferred to the Treasury and that area was to be distributed to the people of Palauli in accordance with the terms of a written contract to be finalized. This means that when the 200 acres were subtracted from the 563 acres under Court Grant 721, what remained was 363 acres. When that 363 acres was added to the additional area of 587 acres granted to Moors, the total area would be 950 acres. This was the total area to which Moors was entitled.

[34] Subsequently, Moors by deed of 14th December 1921 gifted his lands situated at Palauli as fee simple to his daughter Rosabel Nelson.

[35] Then by deed of 26th February 1923, Rosabel Nelson sold the same land as fee simple to O.F. Nelson and Company Limited.

[36] By deed of 22nd March 1994, O.F. Nelson and Company Limited sold the same land as an estate in fee simple to O.F. Nelson Properties Limited which is the plaintiff.

Classification of land in Samoa

[37] There is no evidence to show how land was classified in Samoa whilst Samoa was a protectorate under the German administration. In fact no classification of land was made under the Final Act of the Conference of Berlin on Samoan Affairs of 14 June 1889.

[38] It was not until the Samoa Constitution Order 1920 (SCO 1920) enacted by the New Zealand Government that a classification was made of land in Samoa. Section 258 of the SCO 1920 classified all land in Samoa into three categories, namely, Crown land, European land, and Native land. Section 258 also defined what was meant by "Native title". It provided:

"(1) All land in Samoa is Crown land, or European land, or Native land,

(2) ‘Crown land’ means land vested in the Crown free from Native title and from any estate in fee simple.

(3) ‘European land’ means land held from the Crown for an estate in fee simple.

(4) ‘Native land’ means land vested in the Crown but held by Samoans by Native title.

(5) ‘Native title’ means title to land in accordance with the customs and usages of the Samoan race."

[39] Section 267 of the SCO 1920 then explains ownership of European land by providing:

"All land in Samoa which at the commencement of this Order is owned by any person or body corporate (other than land owned by Samoans by Native title) shall on the commencement of this Order be deemed to be held by that person or body corporate for an estate in fee simple as by grant from the Crown, subject, however, to all encumbrances or other interests less than ownership which are at the commencement of this Order vested in any other person or body corporate, and all such land is hereby declared to be European land accordingly".

[40] The Samoan Land Registration Order 1920 (SLRO 1920) was also enacted by the New Zealand Government to provide for the registration of Crown land, European land and European interests in Native land. The SLRO 1920 came into force on the same day as the SCO 1920.

[41] Section 258 of the SCO 1920 was later re-enacted as s.268 of the Samoa Act 1921 which was a statute of the New Zealand Parliament and s.267 of the SCO 1920 was later re-enacted as s.277 of the Samoa Act 1921. Thus the classification under s.258 of the SCO 1920 of all land in Samoa into Crown land, European land and Native land was continued under s.268 of the Samoa Act 1921. Similarly, the explanation of European land provided under s.267 of the SCO 1920 was re-enacted under s.277 of the Samoa Act 1921.

[42] The expression "Native land" was later substituted with the expression "Samoan land" by s.2 (1) of the Samoa Amendment Act 1951 (NZ).

[43] Then under Article 123(2) of the Constitution, it is provided that land which immediately before Independence Day is, under the provisions of the Samoa Act 1921, Samoan land, European land or Crown land shall, on and after Independence Day, be held under the provisions of the Constitution as customary land, freehold land or public land respectively.

[44] Under Article 101 of the Constitution, all land in Samoa is classified as customary land, freehold land or public land. There is no other category of land in Samoa. Article 101 also defines each of the three categories of land. Customary land is defined to mean land held in accordance with Samoan custom and usage and the law relating to Samoan custom and usage; freehold land is defined to mean land held for an estate in fee simple.

[45] Thus the expression "customary land" only came into use under the Constitution. Prior to the Constitution, customary land was referred to as Native land and then as Samoan land. Likewise, the expression "freehold land" only came into use under the Constitution. Prior to the Constitution, such land was referred to as European land.

Status of land

[46] There is no dispute that Frank Magnus Wilson to whom the land was transferred by deed dated the 4th of May 1872 by Tualau Siale was a European. It is mentioned in the documentary evidence that he was a missionary. Wilson, after gifting the land to his children lodged a claim on their behalf to the Land Commission established under Article IV of the Final Act of the Conference of Berlin of 14 June 1889 to adjust and settle all claims by aliens of titles to land in Samoa. The Land Commission confirmed 1,500 acres to Wilson on behalf of his children. The land was then conveyed back to Wilson by his children after 350 acres was given to the German company DHPG.

[47] However, by Court Grant 721 dated the 5th of March 1897 the Supreme Court granted an area of 563 acres to Wilson. On the 17th of August 1901, Wilson sold the land to Harry Jay Moors a foreign merchant trading in Samoa. Moors then asserted his rights to all of the land comprising 1,500 acres which was confirmed by the Land Commission to the children of Wilson.

[48] In the dispute and Court proceedings which ensued between Moors and the Alii and Faipule of Vailoa, Palauli, the Imperial District Court granted to Moors only the 563 acres granted to Wilson under Court Grant 721. An appeal was then lodged by Moors lawyer to the Supreme Court against the decision of the Imperial District Court. The appeal, however, did not proceed to a hearing before the Supreme Court as the parties settled their dispute by agreement.

[49] Under that agreement, an additional 587 acres was granted to Moors and 200 acres were to be sub-divided from the 563 acres under Court Grant 721 and transferred to the Treasury for the people of Palauli. So Moors received a total area of 950 acres.

[50] In terms of the classification of land under s.258 of the SCO 1920 and the explanation of European land under s.267, it is clear that the total land transferred to Moors would be European land. The same was the position in terms of ss.268 and 277 of the Samoa Act 1921 which re-enacted ss.258 and 267 of the SCO 1920.

[51] It is also to be noted that the term "European" was defined under s.3 of the Samoa Act 1921 to mean any person other than a Samoan. Moors was obviously not a Samoan in terms of that definition. So the land he held could not have been Native land because in terms of s.258 of the SCO 1920 and s.268 of the Samoa Act 1921, Native land by definition means land held by Samoans by native title. But Moors was not a Samoan in terms of the statutory definition of a Samoan. The name Harry Jay Moors is also not a matai title so that even if Moors was a Samoan, he could not have held the land by Native title which according to s.268 of the Samoa Act 1921 means title to land in accordance with the customs and usages of the Samoan race.

[52] The land held by Moors could not also have been Crown land as it does not fit under the definition of Crown land in the SCO 1920 or the Samoa Act 1921.

[53] The status of the land as European land is reinforced by the words of the deed of the 14th of December 1921 by which Moors gifted his lands at Palauli to his daughter Rosabel Nelson. One of the recitals of that deed reads: "Whereas the said Harry Jay Moors is seized in fee simple in possession of certain pieces or parcels of land situate at Palauli in the Island of Savaii..." In law, the words "fee simple" denote a freehold estate.

[54] The status of the land as European land continued right up to the Constitution which now classifies European land under the Samoa Act 1921 as freehold land. So the present status of the land is freehold land.

Argument for the defendants

[55] The argument for the defendants who are the representatives of the Alii and Faipule of Vailoa, Palauli, is that the land in dispute is still customary land and has not lost its status as such. It follows that it still belongs to the Alii and Faipule of Vailoa, Palauli.

[56] As I understand the argument for the defendants which was presented by their counsel, it is based on essentially four grounds. These are:

(a) Tualau Siale had no authority by himself to sell the land to Wilson in 1872 and that sale was not authorized by the Alii and Faipule of Vailoa, Palauli, who held the "pule faamalumalu" over the land;

(b) the land sale between Tualau Siale and Wilson was fraudulent;

(c) the land being customary land it could not have been alienated by way of sale by Tualau Siale to Wilson; and

(d) the actions by Moors in relation to the land were fraudulent.

[57] Before I deal with those grounds, there is an underlying misconception in the argument by counsel for the defendants that I need to deal with now. As earlier mentioned, there is no evidence of any legal classification of land in Samoa during the time Samoa was a protectorate under the German administration. That must have been from 1889 to the First World War when New Zealand took over the administration of Samoa. There is also no evidence of any classification of land in Samoa prior to the time of the German administration. In other words, there were no such categories of land known in Samoa as customary land or freehold land during those times.

[58] It was only after New Zealand took over the administration of Samoa that land in Samoa was classified under the SCO 1920 into three categories, namely, Crown land, European land and Native land. That classification was continued under the provisions of the Samoa Act 1921. Under the Samoa Amendment Act 1951, the expression "Samoan land" was substituted for the expression "Native land". Thus in 1951, land in Samoa became classified as Crown land, European land and Samoan land. That classification continued until the Constitution which came into force on 1 January 1962 when all land in Samoa was classified as customary land, freehold land and public land. So the expressions "customary land" and "freehold land" only came into existence in 1962 under the Constitution.

[59] The references in the submissions by counsel for the defendants to "customary land" and "freehold land" during the time of the land sale between Tualau Siale and Wilson in 1872 cannot, therefore, be correct. Just as there is no evidence of any classification of land in Samoa during the period Samoa was a German protectorate, there is also no evidence of any classification of land in Samoa prior to that time which would include 1872. In the absence of any such evidence, it would not be possible to say in this judgment how land in Samoa was described during pre-German times. It would be incorrect to refer to land in Samoa at that time in terms of "customary land" and "freehold land" when those expressions only came into use in 1962 under the Constitution.

[60] I turn now to ground (a) of the argument for the defendants as I have set out. Here again there is no evidence on how the pule or authority was held or exercised over land in a village in 1872 when Tualau Siale sold the land in dispute to Wilson. It is submitted by counsel for the defendants that Tualau Siale did not have the sole pule or authority to sell the land to Wilson; Tualau Siale also had to obtain the approval or authority of the Alii and Faipule of Vailoa, Palauli, who held the pule faamalumalu over all the lands of the village. However, no evidence was produced in these proceedings to show that in 1872 a matai who wished to sell land pertaining to his matai title was required by Samoan custom and usage to obtain the prior approval of the Alii and Faipule of his village. Given the large number of land transactions that took place between Samoans and foreigners in the past, one would have thought that if there was actually such a customary requirement as submitted by counsel for the defendants, then there should be evidence of it. But no such evidence was produced.

[61] In my experience as President of the Land and Titles Court from 1992 to 2005, and apart from the fact that I am also a Samoan matai, land in Samoa which is now called customary land is land held under a matai title. Every customary land in a village is held under a matai title which has the pule or authority over that land. If the holder of a matai title wants to alienate by way of lease or licence land to which his matai title pertains, he does not have to seek and obtain the prior approval of the Alii and Faipule of his village. There is no such customary requirement. If that was the same position in Samoa in 1872 when Tualau Siale sold the land to Wilson, then, with respect, the submission by counsel for the defendants that Tualau Siale should have had the prior approval of the Alii and Faipule of Vailoa, Palauli, cannot be right. But as I have said, there is no evidence to show that the position asserted for the defendants was Samoan custom in 1872.

[62] Anyway, as earlier mentioned in para [14] of this judgment, the sale transaction between Tualau Siale and Wilson was not only signed and sealed by Tualau Siale but it was also witnessed by Autagavaia a high ranking orator in Vailoa, Palauli. The said sale, as mentioned in para [16] herein, was also subsequently confirmed by Tualau Saumani, another paramount matai of Vailoa, Palauli, in a written statement dated 20th April 1886 and by Leleisiuao Peni, another paramount matai of Vailoa, Palauli, in a written statement dated 6th December 1886.

[63] From the "faalupega" of Vailoa, Palauli, provided by counsel for the defendants in his written submissions, it is clear that Tualau or Tualaulelei and Lelei or Leleisiuao are right at the very top of the faalupega of Vailoa. It is evidence of the very high rank of those titles in the village. This is also well-known to many Samoans. Autagavaia, as mentioned earlier, is also a high ranking orator of the village. All this evidence makes it difficult to accept the submission for the defendants that Tualau Siale did not have the sole authority to sell the land but should have obtained the prior approval of the Alii and Faipule of the village.

[64] In relation to ground (b) of the argument by counsel for the defendants, namely, that the sale of land between Tualau Siale and Wilson was fraudulent, this ground relates back to ground (a). But as already mentioned, Tualau Siale or Tualaulelei Siale was a paramount matai of Vailoa, Palauli. The sale transaction between Tualau Siale and Wilson was also witnessed by Autagavaia a high-ranking orator of the village. The sale was later confirmed in writing in 1886 by Tualau Saumani and then by Leleisiuao Peni.

[65] It has also been explained that the land in question was the subject of a land claim lodged by Wilson before the Land Commission. Vavauoti, an orator of Palauli, then lodged an objection on behalf of the Faleao of Palauli against the claim by Wilson. The Land Commission in 1894 investigated the claim and found that it amounted to about 6,000 acres for which $1,500 were paid. Vavauoti claimed the consideration was inadequate. The compromise that was reached between the parties and confirmed by the Land Commission was that only 1,500 acres was confirmed to Wilson who was claiming on behalf of his children. Vavauoti then withdrew his objection.

[66] So the evidence shows that the land which is the subject of the present dispute had been before the Land Commission in 1894 and the Land Commission after investigating the claim lodged by Wilson and the objection lodged by Vavauoti on behalf of the Faleao of Palauli confirmed 1,500 acres to Wilson on behalf of his children pursuant to the compromise reached between the parties. Vavauoti’s objection was then withdrawn. It is difficult, if not impossible, to see from this evidence any fraud in terms of the compromise that was reached between the parties.

[67] It has also been explained that even though the Land Commission confirmed 1,500 acres to Wilson in 1894, the Supreme Court in 1897 granted only 563 acres to Wilson under Court Grant 721. This later became the source of disputes between Moors and Lelei and others of Vailoa, Palauli, after Moors had purchased the land from Wilson in 1901. Those disputes ended up in Court proceedings between Moors and the Alii and Faipule of Palauli in 1905 and 1906. The Imperial District Court decided that Moors was only entitled to the 563 acres for which Court grant 721 was issued. The Alii and Faipule of Palauli accepted the Court’s decision which awarded to Moors the same 563 acres that was granted to Wilson under Court Grant 721. But that 563 acres was part of the same land which Tualau Siale sold to Wilson in 1872, which sale the defendants are now saying through their counsel was fraudulent.

[68] I have also perused the affidavit of 31 July 2006 filed by the defendants and it refers in paragraphs 13 and 15 to two documents in the Samoan language. The first document which is undated and is quoted in paragraph 13 was signed by Lelei who was the then leader of the Alii and Faipule of Palauli. It says in the first paragraph that "we" have accepted the Court’s decision regarding the 563 acres given to Misimoa (Moors). Again, that 563 acres was part of the same land sold by Tualau Siale to Wilson in 1872.

[69] Then in another document dated 16 October 1906 (referred to in paragraph 15 of the said affidavit), the Alii and Faipule of Palauli wrote directly to Judge Schultz. In that document, the Alii and Faipule of Palauli said, inter alia, that they have not interfered with the Court’s decision which awarded 563 acres to Misimoa (Moors). Again, that 563 acres was part of the same land sold by Tualau Siale to Wilson in 1872.

[70] So in spite of the assertions by counsel for the defendants in his written submissions that the land sale between Tualau Siale and Wilson in 1872 was a fraud, such assertions of fraud are not borne out by the documentary evidence placed before the Court.

[71] I should also note that there are allegations of fraud made in the defendants affidavit evidence. But those allegations must be considered together with the documentary material produced for the plaintiff. In law, the party that alleges fraud must prove fraud. And not only must fraud be specifically pleaded, it must also be strictly proved Ah Far v Ah Far [2003] WSSC 1. In this case, I am not satisfied that the alleged fraud has been proved.

[72] In relation to ground (c) of the argument for the defendants, namely, that the land in question being customary land at the time of the transaction between Tualau Siale and Wilson in 1872, it was, therefore, not possible to alienate the land by way of sale. As earlier explained, the expression "customary land" only came into being in 1962 under the Constitution. Prior to the Constitution such land had been classified under the SCO 1920 and the Samoa Act 1921 as "Native land". By the Samoa Amendment Act 1951, the expression "Native land" was changed to "Samoa land". There is no evidence of any legal classification of land in Samoa during the German period or prior to that period. Therefore, to refer to the land sold by Tualau Siale to Wilson in 1872 as "customary land" is incorrect.

[73] During the hearing of submissions by counsel, I asked counsel for the defendants whether there is any evidence to show that in 1872 land in Samoa could not be sold. I asked this question to counsel because the history of our country does testify to a number of land transactions between our people and foreigners which took place in the 19th century. I also referred counsel to the many freehold and public lands that now exist in the city of Apia and throughout the whole country and asked how such a situation came about if land in Samoa could not be alienated in any way in the 19th century or before. Counsel for the defendants who is a high ranking matai in his own village also confirmed in reply to questions from the Court that in the past, land in Samoa could be alienated by way of "matupalapala" or "igaga to" to reward or compensate for services rendered by someone.

[74] I think the districts of Vaimauga and Faleata in the Apia area also provide an abundance of evidence regarding lands which our people had alienated to foreigners in the past. But they were not the only districts in the country where land was alienated to foreigners.

[75] There is also no evidence to show that in 1872 land in Samoa could not be alienated by way of sale. The history of the country points to the alienability of land in Samoa by way of sale during that period of time.

[76] For those reasons, I do not accept the argument by counsel for the defendants that the land sold by Tualau Siale to Wilson in 1872 was customary land and that at that time customary land could not be alienated.

[77] In relation to ground (d) of the argument by counsel for the defendants, namely, that the actions by Moors in relation to the land in question were fraudulent, I think one has to consider whether Moors was entitled to the land that he claimed or not. This relates back to the acquisition of the land by Wilson in 1872.

[78] As already explained, Wilson purchased the land from Tualau Siale in 1872. The Land Commission confirmed 1,500 acres Wilson on behalf of his children. The Supreme Court by Court Grant 721 granted only 563 acres, instead of 1,500 acres, to Wilson. The land was sold by Wilson to Moors in 1901. Moors claimed that he was entitled to 1,500 acres in terms of the decision by the Land Commission less 350 acres given to the German company DHPG for cancellation of Wilson’s debt with that company, and that the survey on which Court Grant 721 was based was incorrect. The surveyor Norman Macdonald was sent back by Moors to re-survey the land. In the documentary material produced for the plaintiff, Norman Mcdonald is noted to have said that when he carried out the survey on which Court Grant 721 was based, he was misled as to the western boundary. This seems to have been the boundary going towards the village of Satupaitea.

[79] On that evidence, it is not possible to say that Moors claim which was based on the decision of the Land Commission and an allegedly incorrect survey upon which Court Grant 721 was based, was without any merit or substance so as to lead irresistibly to a conclusion that Moors was acting fraudulently. It is true that from 1901 until Court proceedings in 1905 and 1906, there were serious disputes between the Alii and Faipule of Vailoa, Palauli, and Moors, and between the Alii and Faipule of Vailoa, Palauli, and the surveyor Norman Macdonald. However, those disputes were eventually resolved partly by the decision of the Imperial District Court on 27th July 1906 and finally by Court agreement of 18 August 1907 VI 109/07 and 20 March 1912 38/12 between the parties which included Moors, the Treasury of the Protectorate Samoa, and Lelei, Tolo, Laupue and Alipia as representatives of the Alii and Faipule of Vailoa, Palauli. In terms of that Court agreement, 950 acres was transferred to Moors and 200 acres which was sub-divided from the 563 acres under Court Grant 721 was transferred to the Treasury to be distributed to the people of Palauli in accordance with the terms of a written agreement to be finalized.

[80] From what has been said, it would appear that the defendants in the present proceedings are trying to re-litigate issues that had already been settled between their forefathers and Moors by Court decision of 27th July 1906 and by Court agreement of 18 August 1907 VI 109/07 and 20 March 1912 38/12.

[81] With due respect to the dignity of the Alii and Faipule of Vailoa, Palauli, I am of the clear view that it is too late now to re-litigate any allegation of fraud against Moors. The matter had long been settled. In any event, I have said earlier that on the basis of the evidence, it is not possible to say that the claim by Moors was without any merit or substances whatsoever. The claim by Moors was also made and dealt with in the open with the participation of the Alii and Faipule of Vailoa, Palauli, by way of Court proceedings and then negotiations which ended in a Court agreement. The claim by Moors was not made or dealt with in secrecy without the Alii and Faipule of Vailoa, Palauli, being present.

[82] On the basis of the foregoing reasons and discussion, I have to reject the argument for the defendants that Moors’ actions were fraudulent. Fraud is a serious allegation and must be strictly proved.

[83] I have also considered the Australian case of Mabo v State of Queensland (No.2) (1993) 1CLR 194 which is cited extensively in the written submissions of counsel for the defendants, and in my view the circumstances of that case which relate to land rights of certain Aboriginal people in Australia are far removed from the circumstances of the present case and do not assist the defendants. Likewise are the American and Canadian decisions on the rights to land of the indigenous Indians which are cited in the written submissions of counsel.

Limitation Act 1975

[84] One of the fundamental difficulties with the case by the defendants is the Limitation Act 1975 which is pleaded by the plaintiff.

[85] Under s9(2) of the Limitation Act 1975, the limitation period for bringing an action to recover land is 12 years from the date the right of action accrued. However, counsel for the defendants has submitted that in terms of s.4 of the Act, the Act does not apply to customary land. And because the land in dispute has never lost its status as customary land at anytime from the time of the sale between Tualau Siale and Wilson in 1872, the Limitation Act 1975 does not apply in this case.

[86] As it is clear from what has been said in this judgment that the current status of the land in dispute is not customary land but freehold land, the Act would apply to it. Given the very lengthy lapse of time, the counterclaim by the defendants for ownership and possession of the land must be time-barred.

Res judicata

[87] Counsel for the plaintiff also pleaded res judicata against the defendants. I do no not propose to further prolong this judgment with a detailed discussion of the law relating to res judicata.

[88] It is sufficient to say that the Imperial District Court which determined the dispute between Moors and the Alii and Faipule of Vailoa, Palauli, on 27th July 1906 and held that the 563 acres under Court Grant 721 belonged to Moors was a Court of competent jurisdiction. The issue of ownership of that 563 acres had therefore been litigated and determined between Moors and the Alii and Faipule of Vailoa, Palauli, by a Court of competent jurisdiction. The determination of the Court was not appealed by the Alii and Faipule of Vailoa, Palauli. In fact they accepted the Court’s determination.

[89] The present plaintiff would be the third successor in title to the land which was held by Moors. The present defendants would be the successors down the line of the Alii and Faipule of Vailoa, Palauli, who, together with Moors, were the opposing parties in the Court proceedings which led to the decision of 27th July 1906. In these circumstances, the plaintiff would be the privy of Moors and the defendants would be the privy of the Alii and Faipule of Vailoa, Palauli, for the purpose of the principle of res judicata. It follows that the principle of res judicata (or issue estoppel as it is applied in Australia) would apply in the present proceedings to bar the defendants from re-litigating the issue of ownership of the 563 acres which had been litigated before in 1905 and 1906 and determined by the Imperial District Court in its decision of 27th July 1906. Res judicata is founded upon two principles; the first is that there should be finality in litigation and the second is that justice demands that the same party shall not be harassed again for the same cause.

[90] It is, however, debatable whether the principle of res judicata would apply to the additional area of 567 acres which was transferred to Moors pursuant to the Court agreement of 18 August 1907 VI 109/07 and 20 March 1912 38/12. This issue was not addressed in the submissions of counsel. As it is not crucial to the outcome of the present proceedings, I will leave it at that.

Plaintiff’s standing to sue

[91] It is submitted by counsel for the defendants that the plaintiff company has no power or authority to bring the present proceedings against the defendants under its own name. In other words, the plaintiff has no standing to sue the defendants. The point is a technical one.

[92] Article 90(j) of the articles of association of the plaintiff company upon which the submission by counsel for the defendants is founded provides:

" Without prejudice to the general powers conferred by the last preceeding regulation, or to any other of the powers by the regulations, or by law conferred upon the directors, it is hereby declared that the directors shall have the following powers:

" ...

" (j) Carry on legal proceedings – To commence and carry on or defend, and to abandon and compromise any legal proceedings whatsoever by or against the company or its officers or otherwise concerning the affairs of the company, including proceedings in bankruptcy on behalf the company, or to refer any claims or demands by or against the company to arbitrators, and to observe and perform the awards, and to accept compositions from or to compound with or give time to any debtor or contributory owing money or alleged to owe money to the company."

[93] Article 90(j) is clear that the directors of the company shall have the power to commence and carry on or defend any legal proceedings by or against the company. In other words, what article 90(j) is saying is that only the directors of the plaintiff company shall have the power to commence and carry on legal proceedings by the company or to defend legal proceedings against the company; the shareholders of the company would not have such power as it is expressly given by article 90(j) to the directors.

[94] It is also clear that the legal proceedings that article 90(j) is referring to is "legal proceedings by the company" or "legal proceedings against the company". It is not legal proceedings by the directors or legal proceedings against the directors.

[95] Article 90(j) also does not say that when the directors commence or carry on legal proceedings by the company such proceedings shall be brought in the name of the directors. In my view, the legal proceedings being proceedings by the company, the proper name under which such proceedings shall be brought is that of the company. The only power given under article 90(j) to the directors is the power to commence and carry on those proceedings.

[96] In law, a company is a person with a separate existence from its shareholders. But a company is not a natural person. It is an artificial person. As such, the company can only act by human agents. These human agents include the directors of the company.

[97] One of the things that a company can do is to sue or be sued. But because a company is an artificial person, it has to act through human agents when it sues someone. This is why article 90(j) of the articles of association of the plaintiff company provides that the directors shall have the power to commence and carry on legal proceedings by the company. The company, being an artificial person, needs a human agent to commence and carry on any of its law suits. But the law suit is still the law suit of the company and not of its human agent.

[98] In case there is any doubt whether a company has the capacity to sue or be sued, I will refer to two authorities on the subject. In Modern Company Law (1968) 3rd ed by Professor Gower which is the only edition of that text available to the Court, the learned author after referring to the difficulties in the way of suing or being sued by an unincorporated association or other unincorporated bodies said at p.75:

" Needless to say, none of these difficulties arises when an incorporated company is suing or being sued; the company as a legal person can take action to enforce its legal rights or be sued for breach of its legal duties."

[99] More recently in Companies and Securities Law (1998) 6th ed by Beck and Borrowdale, the learned authors state in para 101 at p.5:

" While it [a company] obviously cannot do some things a natural person can do, such as get married or make a will, it can enter contracts, own property, sue or be sued and be convicted of criminal offences."

[100] There is no dispute that the plaintiff company is the registered owner of the land in dispute. As such, the plaintiff company would be the appropriate person to bring the present action against the defendants for the alleged trespass to its land. But because the plaintiff is not a natural but an artificial person, it needs to act through human agents in bringing its action against the defendants. That is why a director of the plaintiff instructed counsel to bring the present action. In so doing, that director was acting within the power conferred under article 90(j) of the plaintiff’s articles of association.

Conclusion

[101] From the foregoing, the conclusion I have reached on the issue of ownership is that the ownership of the land in dispute belongs to the plaintiff as freehold land.

[102] I hope that conclusion will assist the present dispute to be resolved between the parties. If not, then either counsel may apply to the Registrar to have the remaining issues re-instated for hearing.

[103] Costs reserved.

CHIEF JUSTICE

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