Hunt v Lauano [2008] WSSC 79 (22 August 2008)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

ELVIE HUNT
of Sydney
Australia, Self Employed
Plaintiff

AND:

TOIAVAO FILI LAUANO
of Lotopa, Businessman
Defendant

Counsels: K. Drake for the plaintiff
LT. Malifa for the defendant

Decision: 22nd August 2008

DECISION OF NELSON J.

By statement of claim dated 26th July 2007 the plaintiff seeks to evict the defendant and any of his invitees, friends, servants or agents from certain land at Lotopa. The land is described as Parcel 1846 being part of parcel 1532 Volumes 6 and 8 Folios 115 and 46 of the Samoa Land Register and represents part of the plaintiffs share of the estate of his late father Robert Hunt also known as Robert Kiesewetter. The parcel had been mistakenly included in the plaintiffs brothers share of the estate and sold to the defendant but it appears from the statement of claim this situation has been rectified. The plaintiff is the registered legal owner of Parcel 1846 pursuant to a deed of conveyance from the estate administratrix.

A statement of defence and counter-claim dated 28th September 2007 puts the plaintiff to proof of these matters and says the defendant has no knowledge of the background to the plaintiffs claim. It alleges the land was legitimately sold to the defendant by the plaintiffs brother in 1992 and the necessary Deed of Conveyance was executed by the administratrix of the estate. It concedes the defendant is not the registered legal owner but challenges the validity of the plaintiffs title. There is no dispute the defendant and his family have been occupying the property since 1992 and has built a house thereon. The defendant also contends he has made substantial improvements to the land.

In the counter claim the defendant raises issues of fraud, hereditary estate, adverse possession, compensation, emotional suffering duress and hardship, unjust enrichment and a hotchpotch of other matters. It is the counter-claim with which we are presently concerned as the plaintiff has applied to strike it out on the basis of no cause of action disclosed. I will deal with each cause of action in turn.

Approach to the Motion:

Rule 70 of the Supreme Court Civil Procedure Rules 1980 provides:

"70. No cause of action – Where in any proceedings no cause of action is disclosed the Judge may, on the application of the defendant order the proceedings to be struck out."

The relevant law as to motions to strike out is well settled and needs no elaboration.

"The jurisdiction to strike out a statement of claim for disclosing no reasonable cause of action must be sparingly exercised. The factual allegations in support of the claim are assumed to be true and correct. The jurisdiction will only be exercised where it is very plain and obvious that the plaintiff’s claim is so clearly untenable that it cannot possibly succeed": per Sapolu, CJ in Enosa v Samoa Observer and others [2005] WSSC 6.

These principles apply equally to a counter-claim which is essentially a defendants statement of claim. I see no impediment to extending the word "proceedings" in rule 70 to include a statement of counter-claim and its purported cause or causes of action.

Defendants first cause of action:

This claims that the plaintiff is not a descendant of the owner of the land Robert Kiesewetter. It questions the plaintiffs connection to Kiesewetter and attacks his eligibility to inherit. It also targets the grant of letters of administration to the plaintiffs sister who as administratrix of the estate conveyed Parcel 1846 to the plaintiff. It alleges fraud on the part of the administratrix and her siblings in claiming an inheritance not due to them. It asserts the grant is fraudulent and invalid as are all conveyances made pursuant to that grant.

How this cause of action assists the defendant is difficult to see because if this is correct the purported sale to the defendant by the plaintiff’s brother would likewise be tainted by fraud and would be invalid. The land would then become unclaimed land bona vacantia to the Government of Samoa by virtue of the provisions of the Administration Act 1975 and the defendant would face eviction proceedings from the Government rather than the plaintiff.

I have considered the defendants claim. It seems to me misconceived because it essentially seeks to challenge the grant of letters of administration and the subsequent actions of the administratrix in disposing of the estate assets. The appropriate proceeding for that would be an application to set aside the grant on the basis of fraud and/or on the basis that the purported heirs to the Kiesewetter Estate are not in fact genuine heirs or descendants of Robert Kiesewetter. That is a claim that properly lies against the estate administratrix not the plaintiff as a beneficiary of the estate.

This is not to say the defendant cannot raise these matters as a defence to the plaintiffs action which asserts his valid title to the land, it is only to say it cannot form the basis of a cause of action against the plaintiff in this matter. This cause of action is struck out.

Defendants second cause of action:

The basis of this cause of action is most unclear. It alleges the land was sold to the defendant by the plaintiffs brother and a Deed of Conveyance was duly executed by the estate administratrix. However it then goes on to plead the defendants offer to vacate the land upon payment of compensation of $850,000 for improvements to the land. It then alleges "abuse pain hardship ridicule and contempt" at the hands of the plaintiff and his relatives and seeks an order confirming the defendants title to the land, requiring release of the Deed presumably for registration purposes and an injunction restraining "the plaintiff his invitees friends relatives servants and agents from harassing and abusing the defendant and re-entering the land". It further seeks substantial damages general and exemplary and special damages "for pain hardship inconvenience harassment and ridicule".

Confusion on the part of plaintiff’s counsel is quite understandable. The counter-claim does not plead or clarify whether the defendants cause of action is in trespass to the person, trespass generally (and if so the basis upon which the defendant is competent to bring such an action which can only be brought by an occupier clearly entitled to exclusive legal possession), defamation or is based on one of the modern so called invasion of privacy torts (and if so whether this is recognized under Samoan law in the absence of legislation bearing in mind article 114 of the Constitution the definition of "law" in article 111 and the observation of Lord Hoffman in the House of Lords that "English common law does not know a general right of privacy" – R v Brown [1996] AC 543, 557). The pleadings also fail to specify which acts relate to the plaintiff or the particulars of such acts.

Neither do the pleadings show why the defendant’s title should be confirmed and the executed Deed of Conveyance released to him. There is an oblique reference to adverse possession but adverse possession only applies where the possession is "adverse" and the legal owner has been dispossessed by someone having the requisite animus possendi: cases such as Nelson Mackenzie Ltd. V Sale Lamosi (unreported) 5th July 1995 and Jennings v Onesemo [2000] WSSC 26 establish the necessary ingredients. This is a situation where possession was obtained not by dispossession but through a purported purchase of the subject property by the defendant. And the defendant has been unable to complete the purchase as the plaintiff has continued throughout the claimed limitation period to exercise rights of ownership over the land by way of a caveat against dealings and litigation in the courts. The defendant has no basis for arguing an acquisition of title by adverse possession.

The defendants submission does not clarify the matter or address these fundamental issues. The pleadings disclose no reasonable cause of action, this cause of action is clearly untenable, it must be struck out.

Defendants third cause of action:

Here the defendant focuses on improvements made by him to the land. He has built a home on the land as well as cleared an access way. He says he has also carried out considerable landscaping and has maintained the property to a respectable standard over the years. He also refers to the inconvenience abuse pain and hardship arguments raised earlier as well as breach of his rights to quite enjoyment and my earlier comments apply equally here. For this the defendant claims substantial damages.

There is no doubt a cause of action for compensation based on the equitable doctrine of unjust enrichment applies in Samoa. This emerges from cases such as Westerlund v Pati [2001] WSCA 5 (CA) and Reid v Fiso [2001] WSCA 4 (CA). At this stage I am not required to assess the merits of such a claim or the strength of any legitimate defences. For the purposes of a strike out motion it must be assumed the allegations are capable of proof and the only question is whether they support a cause of action.

Although the damages claimed seem absurdly inflated, on the above basis the third cause of action should remain. It is not so clearly untenable as to be incapable of success.

Defendants fourth cause of action:

However, the third and fourth causes of actions should be merged to reflect that they essentially refer to the one cause of action based on unjust enrichment. Accordingly paragraphs 16.1, 16.2, 16.3, and 17 of the counter-claim will remain and the prayer for relief is amended by striking out paragraphs (i) and (ii) and substituting a new paragraph (i) reading "Compensation in the sum of $250,000 for unjust enrichment.". Paragraph 16.4 and the fourth counter-claim are struck out.

Defendants fifth cause of action:

Apart from not being coherently or properly pleaded, this repeats allegations contained in the first cause of action, likewise it too is struck out for the same reasons.

Defendants Amended Counter-Claim:

Subsequent to the court hearing counsel for the parties, the defendant filed an amended counter-claim dated 11th April 2008. The difference between that document and the original counter-claim is the fourth cause of action has been modified to include particulars as to fraud and a cause of action based on unjust enrichment. As to the former I have already expressed the view that they properly belong in an action against the estate administratrix. As to the latter this is covered by the third cause of action which has been ordered to remain. The other difference is the fifth cause of action has been modified by provision of further particulars as to the fraud allegations.

I see no reason to alter my judgment in respect of the fourth and fifth causes of action. Accordingly and to avoid confusion, the amended counter-claim is struck out.

The plaintiff is to file a statement of defence to the remaining cause of action within 14 days hereof whereupon these proceedings should then be set down for trial.

Costs on the motions are reserved.

JUSTICE NELSON