Mautofu v Selesele [2009] WSSC 124 (28 October 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

AFAMASAGA FAUMUINA
FUIMAONO MANULELEUA MAUTOFU
of Vaimoso, Reverend.
Plaintiff

AND:

AULAVEMAI TOGAMAUGA
VALASI TAFITO SELESELE
of Vaimoso, Matai.
Defendant

Counsels: Mr RT Faaiuaso for the plaintiff
Mr TRS Toailoa for the defendant

Decision: 28 October 2009

JUDGMENT OF NELSON J.

[1] At the outset the court wishes to apologise to the parties and to counsels for the delay in issuing a judgment in these proceedings. As counsels are aware the court is currently very short-handed and has had to give priority to recent urgent matters. I thank all concerned for their patience.

[2] In his Amended Statement of Claim dated 4 February 2008 ("the Claim"/ "the plaintiffs claim") the plaintiff says he is an heir of the Aulavemai title in the village of Vaimoso and represents Aulavemai Palisi Ah Chong who is currently resident in New Zealand. It is common ground that Aulavemai Palisi, the defendant Aulavemai Tafito and one Aulavemai Tavoi are the three Aulavemai title-holders in the village as confirmed by a recent decision of the Land and Titles Appeal Court. That decision also upheld the lower courts finding that the rights of any one holder are not superior to that of any other. The plaintiff is a cousin of Aulavemai Palisi and represented their side at the Land and Titles Court hearings to which the defendant was also a party.

[3] The plaintiffs claim relates to compensation monies paid by the Government to the Aulavemai family for taking of land said to be situated at Vaimoso and required for roading purposes. In the course of the hearing it became clear the primary land in issue was not situated at Vaimoso but at the village of Palisi and was taken for drainage not roading purposes. Accordingly the plaintiffs at the close of their case applied to amend paragraph four of the Claim to include the village of Palisi. In addition, the plaintiff applied to amend paragraph 1 to make it clear that he was also representing "the heirs of Aulavemai Manu and Afamasaga Maea."

[4] Both amendments were objected to by the defendant on the basis that the applications came too late, after the plaintiff had closed its case even though the plaintiff had averted to these matters in an affidavit filed in earlier proceedings. And because the amendment sought seeks to make the plaintiff a representative of the whole family including the defendant since the three branches derives from Aulavemai Manu, but no authority has been granted to the plaintiff to represent the whole of the heirs of either Aulavemai Manu or Afamasaga Maea. It is convenient to deal with these applications at this stage.

[5] In respect of the first, as defence counsel has pointed out this is referred to in an earlier affidavit of the plaintiff and was also mentioned by the plaintiff in his evidence in chief. It should therefore come as no surprise to the defendant. There is no obvious prejudice to the defendant. Rule 17 of the Supreme Court Rules 1980 allows a plaintiff "at any time before or during the trial" to amend its pleadings with leave of the court. That leave is granted.

[6] The second matter however is a new issue not previously raised or addressed in any pre-trial motions or affidavits and it represents a substantial shift in the plaintiffs case. There is a further problem of no evidence was adduced indicating the plaintiff is in fact an authorized representative of the Aulavemai family as a whole. Leave for that amendment should not be given, it is accordingly refused.

The plaintiffs case:

[7] The plaintiffs evidence is he is bringing these proceedings as an heir of the Aulavemai title and on behalf of Aulavemai Palisi who resides in New Zealand. The claim involves two amounts, the sum of $167,904 paid by Government as compensation for taking family land at Palisi for drainage purposes and the sum of $48,600 being compensation for family land at Vaimoso taken for roading purposes. The first amount was paid to the defendant in June 2007 while the aforementioned Land & Titles Appeal Court hearing was pending. After the present proceedings were brought, the plaintiff discovered the $48,600 payment made to the defendant in September 2006. Hence his original Statement of Claim relates to the first payment and his Statement of Counter Claim involves the second payment.

[8] The plaintiff maintains the defendant was not authorized to receive or uplift either payment, the defendant has acted fraudulently and that the monies belong one-third to each Aulavemai title holder. He is accordingly seeking judgment against the defendant in the sum of $55,968 ("the Palisi compensation") and $16,200 ("the Vaimoso compensation") being the one-third share for their branch of the compensation monies.

[9] The claim to the Palaisi compensation is based firstly on the fact that the Palisi land is customary land pertaining to the Aulavemai title and their branch is one of the three branches of the title. Accordingly they are entitled to a one third share of the money. It is secondly based on what he says is a long history of occupation of the Palisi land. The plaintiffs evidence was that by virtue of a number of Land & Titles Court decisions beginning with LK 923 in 1910, his side which is descended from the original Aulavemai being Aulavemai Manu and then subsequently Afamasaga Maea down to the line of his mother and her sister the mother of Aulavemai Palisi, were in continuous occupation of the property. He never saw any of the defendants side living thereon until 1984 or thereabouts and asserts that the third title-holder Aulavemai Tavoi is from an adopted line. The implication from the plaintiffs evidence is because of these factors, neither of these lines qualify for any entitlement but he accepts they do so only by virtue of the recent Land & Titles Appeal Court decision which he must accept.

[10] As to the Vaimoso compensation the plaintiff said they were the only branch that occupied these lands and he has no idea of the basis of the claims of the other two branches. He only found out about this payment when investigating the Palisi compensation. The plaintiffs further evidence was that the defendant should work for the benefit of the whole family and if because he became an influential Member of Parliament, he succeeds in obtaining payment for something the plaintiffs side has been pursuing unsuccessfully for many years, he should share his success with the rest of the family.

The defendants case:

[11] The defendants evidence was the Palisi land was the plantation lands of the family but they have long been divided among the respective branches - the heirs of Afamasaga Maea (from whom the plaintiff is descended) are to occupy the seaward part of the land and the then Aulavemai title-holder Aulavemai Vagai ( from the adopted line) and the heirs of Fauatea Tafito (from whom he is descended) are to occupy the inland part. The adopted line however have never used or occupied their portion. To support this contention he produced excerpts from the Land & Titles Court file on the Aulavemai title from 1941 and 1942 (Exhibits "D-6" to "D-9") referring to such an arrangement. But these show the arrangement was disputed by Afamasaga Maea and indicates that their branch had not accepted there was ever such a partitioning. The documents also show the dispute relates to the division of other lands of the family situated in Vaimoso. The seeds of the plaintiff and defendants dispute obviously goes back some years and involves other family property.

[12] The defendant says the part taken for drainage is located in their portion of the Palisi land. Accordingly they are entitled to the full amount of the compensation. In addition the terms of the compensation award are that the family adjacent to the drains are made responsible for clearing them. As it is his family which do this, it is only proper they be given the compensation. He also said and produced documents in support thereof that it was only through his tireless efforts over the past 17 years that the compensation was secured. No one helped him and it was not fair other branches should also benefit. In any event the third branch have already assigned their share to him.

[13] It was the defendants further evidence that unknown to the plaintiffs branch he has also initiated a compensation application for lands taken by Government for drainage situated alongside the road boundary of the plaintiffs side. He said he has done this for their benefit and that compensation payment rightfully belongs to Aulavemai Palisi and his branch.

[14] As for the Vaimoso compensation the defendant said the only occupants of that land are Aulavemai Tavoi and himself. No one of the plaintiffs branch have ever occupied those lands and he dealt with the Government and received the compensation payment on their behalf as he was the one dealing with the matter. Whether he has shared this payment with Aulavemai Tavoi is not clear but the defendant maintains theirs were the only two branches entitled to benefit from this payment.

Site Visit:

[15] By consent of the parties a site inspection of Palisi was conducted during the trial. This visit confirmed the drainage in question was indeed located within the inland part of the land (see Exhibit "P-3" for the plaintiff, the area marked in blue) which is occupied by the defendants branch. And further that the seaward parts fronting onto Taufusi Road and Palisi Road were in the main occupied by the plaintiffs branch. There was no evidence of occupation by the third branch of the family.

[16] Notable features included a line of coconut trees separating the two branches and the grave of the defendants father at the end of a dirt road running along the inland side of these trees. Coconut trees are of course commonly used in Samoa to denote boundaries.

Decision - the Palisi compensation:

[17] In order for the plaintiff to succeed he must demonstrate he has title or rights of some sort over the taken lands. If he has, then this court may well be able to enforce his claim to compensation for same. It seems however that there has been no determination by the Land and Titles Court that the plaintiffs branch has the pule over or any exclusive rights in respect of the taken lands. The Appeal Court finding related solely to confirmation of the title-holders but not to any lands under their authority and control. In the absence of such a finding this court has nothing upon which to base an exercise of jurisdiction in the plaintiffs favour.

[18] It is not as the plaintiff urges a simple matter of splitting the compensation equally amongst the title-holders. For compensation is paid not to any individual but to the family as a whole. In this case it was paid by the Government to the Aulavemai family as beneficial owners of the land. How the family chooses to deal with the monies is a matter for the family to determine. They may decide to split it equally amongst the branches, they may decide to give it all to one branch, they may decide to give it to the branch living alongside the taken lands or they may decide as some families do to apply it to a family project or common venture. It is no business of anyone but them and it is a decision reached in accordance with Samoan custom and tradition because it pertains to the customary lands of the family. In the absence of specific rights granted to any one part of the family over the taken lands, this court should not intervene in what is a matter for the family unit to determine. To do otherwise would be legally unjustifiable and an unnecessary limiting of the options available to the family.

[19] The further obstacle facing the plaintiff is that on the evidence adduced, there is insufficient to show on a balance of probabilities that at the relevant time, the taken lands were under the use and occupation of the plaintiffs branch. The plaintiffs branch may well have been the original occupants of the land. But the extracts from the Land and Titles Court records show that at least by 1941/1942 the defendants branch was on the land and disputes over rights of occupation and use and to where had begun. The courts site visit confirmed the defendants testimony that their branch is in occupation of the seaward portion of the property where the taken lands are located. They occupy the land seaward of the line of coconut trees including the dirt road leading to the defendants fathers grave and they appeared to have so occupied this part for some time. The defendants father would not have been able to be buried on that portion if it had been otherwise. The defendants relatives also currently occupy both sides of the part taken for drainage. This is all evidence that it is the defendants branch who have been using and occupying the taken lands. The plaintiff admitted as much in cross examination when he agreed Exhibit "D-2" for the defence accurately depicted the part occupied by his branch and that occupied by the defendant. This being the case, the plaintiff has no basis in equity for a claim to compensation for lands not occupied by any members of his branch.

[20] The plaintiffs claims cannot be sustained, they are accordingly dismissed. If the defendant wishes to pursue costs as against what is essentially a branch of his family, I will hear counsel on the issue if the parties cannot reach some sensible accommodation.

Decision – the Vaimoso compensation:

[21] Very little evidence was directed towards this claim other than the plaintiff claiming residence and occupation of the taken lands and the defendant disputing it. A site visit was neither requested nor undertaken.

[22] The onus is on the plaintiff to prove his case. I am not satisfied to the required standard that he has, likewise this claim is also dismissed.

JUSTICE NELSON