Ortquist v Su'a [2008] WSSC 99 (28 November 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 ALL that piece or parcel of land containing an area of Twenty nine point three five
perches (0ac.0r.29.35p) more or less situated at Saleufi in the District of Tuamasaga
described as Parcel451, Flur III, Upolu being part of Court Grant 166 and being also part
of the land registered in VOLUME 1 FOLIO 250 of the Land Register of Samoa as
the same is more particularly delineated on Plans 3730 deposited in the
Office of the Director of Lands in Apia.

BETWEEN:

SVEN VICTOR ORTQUIST
of American Samoa, Master Carver
Applicant

AND:

ANDREW SU’A
of Fugalei, Farmer
Respondent

Counsel: Mr Ainuu for Applicant
Ms K. Drake for Respondent

Judgement: 28/11/2008

JUDGEMENT BY JUSTICE VAAI

Introduction

The applicant for the removal of caveat is the registered owner of the land situated at Savalalo described as parcel 451 Flur III Volume 1 Folio 150. He was registered in 1987 at the completion of the final payment of monthly instalments, which commenced since 1983 when he exercised his option to purchase pursuant to a lease agreement with the Roman Catholic Church which commenced in 1969.

The caveator is the eldest of the nine children of the applicant’s wife’s sister. He was born in 1965. He lodged the caveat in 2006 when the government expressed an interest to purchase the applicant’s land. His father and mother lived on the subject land until they passed away in 2004 and 2005 respectively. The caveator is not supported by any of his eight siblings in his endeavour.

Background

The caveator’s parents and grandmother lived on Roman Catholic land at Saleufi through a sub-lease with Mr Macdonald. When Mr Macdonald’s lease expired in 1969, the caveator’s parents who were not Catholics could not secure a lease of the land and were obligated to vacate. Fortunately the applicant who was a devout Catholic came to the rescue; he sought and was granted a lease of the same land at $3 per month with an option to purchase. The caveator’s parents, and grandmother then continued to live on the land.

In 1976 the applicant and a Mr Aitken Fruean, who had a lease of Roman Catholic land at Savalalo with an option to purchase agreed to exchange leases. They did with the consent of the church and the applicant, his wife, grandmother and caveator’s parents and children moved to Savalalo and constructed a house for everyone to live in. In the same year the applicant and wife moved to American Samoa but visited regularly and remitted monies to the grandmother for rent and for her upkeep.

In 1983 the applicant exercised his option to purchase the land. He deposited a down payment of $2,000, with the balance of the purchase price to be paid by monthly instalments to the then office of the Solicitors for the church, Kruse Vaai & Barlow. The applicant and his wife also leased an adjoining land on which they constructed a store for the upkeep of the grandmother. Stocks for the shop were originally sent from American Samoa. Funds for the monthly payments for the land were remitted to the grandmother who forwarded them to Kruse Vaai & Barlow and receipts issued under the name of the applicant. The applicant and his wife also constructed a new house to accommodate the grandmother and for their own accommodation on their frequent visits to Samoa.

The Caveat

The caveator claims to have an equitable interest in the land. He says that his parents developed the swampy land and expended monies in the improvements they made. As the caveator is a beneficiary to both his parents’ estate he claims to be entitled to their equitable interest. He also claims to have made some personal improvement to the land, which creates his own equitable interest in the land.

The Law

Both counsels are in agreement as to the relevant law namely:

(i) The onus of proof is on the caveator to show cause why his caveat should not be removed.
(ii) The caveator must prove that he has a reasonably arguable case for the interest he claims which must be a caveatable interest.
(iii) The procedure adopted by the court in dealing with application for removal of caveat is the summary procedure.

Facts giving rise to the Equitable Interest

In his affidavit the caveator said that when they moved onto the land in 1976 the land was so swampy that they:

(7) "... would have to made through water and that came up to our chins."

During their occupation of the land for over 30 years his parents reclaimed the land with numerous loads of scoria, planted trees and erected fences. He then went on to say that for the purchase of the land, the applicant and his wife paid the deposit and the balance of $9,000 was paid by the grandmother from her shop earnings. The lease payments he says were paid by his father. A cousin of the caveator who lived on the land in 1976 filed an affidavit repeating and supporting the reclamation work by the caveator’s parents. He even went on to say that the caveator’s grandmother told him that she wanted to run the shop to pay for the purchase price of the land and she also told him she paid the balance of the purchase price in 1987.

Discussion

It is not disputed that the grandmother paid the monthly purchase instalments to the Solicitor’s office from 1983 to 1987 and the receipts were issued by the Solicitors in the name of the applicant. The grandmother did not object to the receipts being issued under the applicant’s name. She had no reason to object. The monies she paid were not hers or of the caveator’s parents, they were the applicant’s money and the land they were living on was leased to the applicant. The monies for the purchase of the land were remitted to the grandmother, by the applicant. The monies from the shop were for the grandmother’s upkeep.

Before the applicant exercised his right to purchase the land in 1983 the receipts for the lease payments were also issued in the name of the applicant. If the caveator is correct that his father paid the rents, his father certainly was not concerned and did not appear to object when the receipts were issued in the name of the applicant.

When the caveator’s parents and grandmother first occupied Roman Catholic land in 1969 the caveator was barely four years old and when in 1976 they lived on the subject land he was about eleven years. His hearsay knowledge of events inspired by a desire for personal financial gain does not in any way advance his orchestrated fabrication of the facts. The blatant absences of support from any of his siblings speak for the obvious. The Court adopts paragraph 11 of the affidavit by Litia Ortquist, wife of the applicant and aunt of the caveator:

"11. That the Respondent has solicited the assistance of his cousin but not his own brothers who have condemned what the Respondent is trying to do."

His parents died in 2004 and 2005 and neither the caveator nor anyone else has made any move, or shown any interest to administer their estates, if they have any to be administered. Since 1976 when the caveator’s father allegedly commenced to reclaim the land, the applicant had no knowledge of such work, nor did the applicant encourage the caveator’s father to carry out any reclamation. Since 1987 when it was apparently commonly known that the grandmother has paid the balance of the purchase price and the land registered under the applicant, the caveator’s father did not move to claim his so called contribution to the land. He did not do so obviously because he had none to claim. The logical conclusion is that if the caveator’s father did carry out some reclamation work, the applicant and his wife had no knowledge of and did not encourage him to reclaim or to improve the property in any other way so as to give him to believe that he would gain an interest or equity in the property: see Inwards & others v Baker [1965] EWCA Civ 4; (1965) 2 QB 29 and Stratulatos v Stratulatos (1988) 2 NZLR 425. The caveator’s parents lived free on the land to look after the grandmother and any work which the parents may have done to the land was probably with the intention of providing comfort and improving living conditions for the grandmother and for the caveator’s parents and their young children including the caveator but not for the purpose of granting unto themselves an interest in the land. If they had such a belief they had more than sufficient time since 1976 or 1987 to exhibit such a desire. They did not because they possessed none.

At paragraph 9.1 of his affidavit the caveator states:

9.1 That I have also helped with putting fill on the land and keeping the property fenced; I have also worked on the land to improve it and make it habitable. ...

Then at paragraph 12.1 he says:

12.1 My family had come to be living on the subject land as a result of my family exchanging leases with Asi Aikeni. We had originally lived at Saleufi however Asi Eikeni wanted to swap where he lived with where we were.

The saga which the caveator wants to sell and wants the court to believe is that his parents and he himself have for some 30 years since they moved onto the land been trying to improve the swampy land to make it habitable. By the same paragraphs, he is also trying to tell the court that Asi Aikeni (Aitken Fruean) a very wealthy businessman at that time, was living on the same swampy land which the caveator and his parents found inhabitable necessitating recovery work to make it habitable.

The motive behind the lodging of the caveat was undoubtedly a selfish financial one. Although he claims to have made some contribution to the land, his affidavit is silent as to his contribution other than stating that he assisted with putting fill on the land, keeping the property fenced and working the land to make it habitable.

Conclusion

(1) The caveator has not established a reasonably arguable case and the caveat is ordered to be removed.

(2) The caveator is to pay costs of $800.

JUSTICE VAAI