In re Application of Dora Letele [2008] WSSC 63 (15 August 2008)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

IN THE MATTER:
of the Land Registration Act 1992/1993.

AND:

IN THE MATTER:
of an application by DORA LETELE of Auckland, Widow,
MARIA SHECK of Aai-o-Fiti, Widow, THERESA LEAU of Togafuafua, Widow,
JOSEPHINE HUNT of Vaitoloa, Widow, MARY HICKS of Aleisa, Spinster, and
EMELIA COLLINS of Auckland, New Zealand, Married Woman,
for the removal of Caveat no.538x.
Applicants

AND:

RASELA MOLI FILIA, PISAINA FILIA,
POVITA HICKS, TUIVALE HICKS and SILIA HICKS
Respondents

Counsel: A Roma for applicants
O Woodroffe and A Woodroffe for respondents

Hearing: 5 August 2008
Conclusion: 5 August 2008
Judgment: 15 August 2008

JUDGMENT OF SAPOLU CJ

Proceedings

[1] These proceedings are concerned with an application by the applicants for an order to remove caveat 538x lodged by the respondents against the land known as "Faimonolima" situated at the village of Leauva’a.

[2] At the end of the hearing of the application on 5 August 2008, I stated by conclusion dismissing the application. I then indicated to counsel that I will provide a written judgment in due course. This is that judgment.

Background

[3] The land which is the subject of the caveat was owned by one William Hicks who died intestate on 28 August in 1899.

[4] On 23 January 1923, letters of administration of the estate of William Hicks Snr were granted to the Public Trustee. On 27 September 1965 the Public Trustee when carrying out the administration of the estate of William Hicks Snr conveyed the said land to William Hicks Jnr claimed by the applicants to be the only son and successor of Wiliam Hicks Snr

[5] By deed of conveyance dated 8 December 1967, William Hicks Jnr gifted the said land to his wife now deceased and his children which include the applicants. The said deed was registered on 14 December 1967.

[6] On 5 October 1994, the respondents lodged their caveat 538x against the land. So the caveat has been with the land registry office for quite some time.

Respective claims by the parties

[7] Leaving aside for the moment the question of adverse possession, the question of limitation under the provisions of the Limitation Act 1975 was not made an issue in these proceedings. However, fraud has been alleged by the respondents and this is not always a straight forward question in the context of the Limitation Act 1975. In the absence of submissions, I have decided to leave this question for consideration in the substantive proceedings.

[8] Essentially, the respondents claim in their affidavits that William Hicks Snr had two sons. These were John Hicks and William Hicks Jnr. John Hicks married one Sulika aka Halila and they had three children. On of their children was Joseph Hicks who is the father of the respondents. The respondents strongly deny that William Hicks Jnr was the only son of William Hicks Snr. They therefore claim an interest under the law of succession in the land which is the subject of their caveat as descendents of William Hicks Snr.

[9] The applicants claim in their affidavits that William Hicks Snr had only one son, namely, William Hicks Jnr and they are descendents of William Hicks Jnr. They strongly deny that John Hicks was a son of William Hicks Snr. They say that John Hicks, the grandfather of the respondents, was a Fijian national brought by William Hicks Snr from Fiji to Samoa.

[10] So there is a direct conflict between the applicants affidavit evidence and the respondents affidavit evidence as to whether John Hicks from whom the respondents descend was a son of William Hicks Snr.

[11] In the alternative, the respondents claim that they have acquired an interest in the land in question under the doctrine of adverse possession. They say that they have been living continuously on the land in question since 1949 and they deny that their father Joseph Hicks sought and obtained permission from William Hicks Jnr to live on the land.

[12] The applicant Josephine Hicks says in her affidavit, which is supported by the other applicants Maria Sheck, Theresa Leau and Mary Hicks in their joint affidavit, that the said Joseph Hicks, the father of the respondents and a son of John Hicks, sought permission from her father William Hicks Jnr to live on the said land. Her father gave permission to Joseph Hicks and his family to live on the land and that was how the respondents came to occupy the land.

Discussion

[13] The questions of limitation and alleged fraud aside, the central issue in these proceedings is whether John Hicks was a son of William Hicks Snr. This is because the interest claimed by the respondents in the land hinges on whether John Hicks from whom they descend was a son of William Hicks Snr. On this issue, the affidavit evidence between the applicants and the respondents is in direct conflict. I have not been able to resolve this conflict on the basis of the affidavits even after approaching the issue critically by adopting a robust and realistic judicial attitude.

[14] In such a situation, the course I have to take in this summary procedure for determining whether the respondents have a reasonably arguable case for the interest claimed to support their caveat is to proceed on the assumption that the facts alleged by the respondents in their affidavits are correct because the onus is on the respondents as caveators to show that they have a reasonably arguable case for maintaining their caveat: Lana Schwalger Toleafoa v Sophie Ben et al (2008) (judgment delivered on 13 August 2008); Mackenzie v Richard Kidd Marketing Ltd [2007] WSSC 41.

[15] It is not correct to dismiss an application for removal of caveat simply because the conflicts in the affidavits between the opposing parties cannot be resolved on the basis of those affidavits and any documentary evidence placed before the Court. The Judge would have to assume that the facts alleged in the caveator’s affidavits are correct and then decide whether on the basis of the caveator’s affidavits a reasonably arguable case has been shown for maintaining the caveat: Lana Schwalger Toleafoa v Sophie Ben et al (2008) (judgment delivered on 13 August 2008).

[16] It is also to be noted that the onus on the caveator is to show that he has a reasonably arguable case for maintaining his caveat. The caveator is not required to show that he actually has the interest claimed to support his caveat; a reasonably arguable case for the interest claimed is enough: Lana Schwalger Toleafoa v Sophie Ben (supra).

[17] Assuming then that where the affidavits of the opposing parties are in conflict the facts alleged by the respondents are correct, I am satisfied that the respondents as descendents of John Hicks have a reasonably arguable case for the interest claimed to support their caveat. This is because the respondents claim that John Hicks was a son of William Hicks Snr who owned the land in dispute and that William Hicks Snr died intestate so that his two sons would both be successors to his estate.

[18] Counsel for the respondents submitted that John Hicks would have acquired an interest in his father’s estate under a statutory trust in terms of the relevant New Zealand legislation on administration which was applicable to Samoa at the time the estate of William Hicks Snr was administered by the Public Trustee to whom the letters of administration of the estate were granted. I would, for present purposes, proceed on that basis.

[19] In the circumstances, I have come to the view that the respondents have a reasonably arguable case for the interest claimed. I have also come to the view that that interest is a caveatable interest. This should be enough to dispose of these proceedings.

[20] However, the case for the respondents was also presented in the alternative on the basis of adverse possession. On the respondents affidavits, they have a reasonably arguable case for claiming an interest in the land on the basis of adverse possession. Here I am assuming that what the respondents are saying about their father Joseph Hicks not having sought permission to live on the land from William Hicks Jnr the father of the applicant Josephine Hunt is correct.

[21] What is not clear from the submissions of counsel on both sides is whether an interest acquired under the doctrine of adverse possession can be a caveatable interest. There is no Samoan case on the point and counsel did not cite any relevant case from another jurisdiction. For present purposes, it is not necessary to express any definitive view on this point.

Conclusion

[22] In the circumstances, the application for removal of caveat is dismissed. Costs reserved. An early date to be allocated for the substantive hearing of this matter.

CHIEF JUSTICE

Solicitors
Fepuleai & Roma Law Office for applicants
Woodroffe Law Partnership for respondents