Futi v Abraham [2009] WSSC 39 (1 April 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

IN THE MATTER:
of a claim by MATUAVAO POGISA FUTI to the estate of JAMES WELLS deceased.

BETWEEN

MATUAVAO POGISA FUTI
presently of Alamagoto and a descendant of JAMES WELLS
Applicant

AND

ANNE MARIE ABRAHAM
as Executrix of the estate of VALERIE WELLS the Administratrix of the estate of JAMES WELLS.
Respondent

Counsel: Ms F. Hoglund for the applicant
Ms K. Drake for the respondent

Decision: 1 April 2009

DECISION OF NELSON, J.

Background:

The background to this matter is covered by the court’s decision dated 7th November 2008. There are essentially two applications before the court.

(1) an application by Matuavao Futi pursuant to the Administration Act 1975 inter alia to be declared a descendant and beneficiary to the estate of James Wells;

(2) and a second application by the administratrix of the estate of James Wells for removal of the applicants caveat lodged in respect of the estate lands situated at Alamagoto.

It is common ground the estate lands are freehold property.

By consent of counsels I deal firstly with the application by Matuavao Futi to be declared an heir to the estate of James Wells. It was recognised early on by all parties that the core issue for determination was identifying the true heirs of the said James Wells. That should resolve both the matters before the court.

The evidence for the applicant consisted of the applicant plus a fellow title holder of the family, one Matuavao Seiuli. The applicants evidence was he was told James Well was a European from Great Britain who cohabited with Ema the daughter of Matuavao Levae of Saleaula, Savaii. The couple had five children: Pone, Simi, Kolone, Sela and Ila also known as Ane. Sela had two issues, Sakaria and Moli and the applicant is descended from Sakaria who had five issues one of whom was Lita his grandmother being the mother of his mother Ane Talatau. His further evidence was that several descendants of Sakaria are buried on the Alamagoto property. His witness Matuavao Seiuli is descended from another branch of the family namely from Pone the eldest son of James Wells.

This is his family tree or "gafa" as relayed to him by the older members of the family and he produced as an exhibit to one of his affidavits a certified copy of the Matuavao family genealogy from Lands and Titles Court records to support this testimony. It is recorded in that document that the original union was between Ema the daughter of Matuavao Levae of Saleaula, Savaii and one "Wells" with no first name.

As to the land in question he stated that he did not personally live or grow up at Alamagoto. He was born in Fasitoo-tai but grew up in his mothers family at Salamumu. He came subsequently to Apia for schooling and stayed on to work. In Apia he lived at Lalovaea with relatives and in 1982 at the age of 28 he moved to Australia. He returned in the year 2000 and his mother told him about the Alamagoto property and said that if he wanted to live there he had to obtain the permission of the old women resident thereon, being Peko Sue and Matalena Malo. It appears that he was wanting to reside in Apia to facilitate the schooling of his children. He did seek the permission of these two ladies and moved on to the land in 2000. He continues to reside there in the belief that the land belongs to the children of James Wells, including Sela his great great grandmother.

He has never heard of the respondent or a daughter of James Wells named "Valerie" or "Valelia". He does know Faimasealofa Malo who also lives on part of the Alamagoto land as he is the son of Matalena Malo. He maintains the land has always been occupied by Peko and Matalena and their children. He says Matalena is his grandmother Lita’s niece being the child of her brother Natapu by a marriage to a woman named Soo. Peko is a descendant of Uesiliana one of Pone’s sons from a relationship with the same woman Soo. A further player in all this is one Simeki Key whose descendants also appear to reside on part of the Alamagoto lands and who is mentioned in the will of Valerie Wells as being the son of a second union by Soo to one Iakopo Key. He maintained this Simeki Key is therefore not a blood relative or descendant of James Wells. He denied Valelia was Matalena’s half sister and said the old men of the family told him that she was living on the land because her father was an old and long time friend of the family. She is not a relative but appears to have been adopted Samoan style into the family. He says the old men also told him her father was a palagi named "Simi". The applicant’s witness Matuavao Seiuli gave similar evidence viz. that there was no daughter of James Wells named "Valerie" or "Valelia" and James Wells and Ema had five children: Pone, Simi, Sela, Ila and Ane. The applicant is descended from Sela whereas he is descended from Pone.

The respondent did not appear or give evidence but Faimasealofa Malo was called to testify and he spoke as to the respondents version of the family tree, which is quite different. He confirmed his mother was Matalena Malo and that she was the daughter of a liaison between Soo Lesina and Natapu Sakaria. He said he was very close to his mother and they often talked about family matters and the family genealogy. It was she who told him the following history of their family: Soo Lesina had four liaisons or common law unions. The first was to a Manase man named Key producing Simeki Key. The second was to James Wells a palagi and their only child was Valerie Wells. The third was to Uesiliana of the applicants side of the family from whom Peko Sue is descended. The fourth and final liaison was to Natapu Sakaria from whom he is descended. Natapu Sakarias sister was Lita whose daughter was Ane the applicants mother but he and the applicant are not blood related to James Wells, they only share a common ancestor in Soo Lesina. Thus Valeries half brother is Simeki Key and her half sisters are Peko Sue and his mother Matalena which is why Valeries will bequeaths a half share of her land from her father to her half siblings Simeki, Peko and Matalena. He said he has lived on the land all his life ever since his mother was given permission by Valerie Wells to build a house thereon. All three half siblings have likewise occupied the land and built houses on various parts thereof. He remembers meeting Valerie Wells when he was young in New Zealand and on her sporadic trips to Samoa but all of that generation are now deceased and it is their children and relatives who are quarrelling over the land.

As for the applicant he accepts they are related, their mothers are first cousins. But the applicant only moved onto the land 10 or so years ago when he came looking for a place to build a house so his children could attend school in Apia. He was given permission by Matalena to reside on the land but prior to that he was no where to be seen. His claim to be descended from James Wells only surfaced when the estate was being actioned by the respondent and no such claims as to any relationship with James Wells had been made prior to that. He disputes the applicants evidence that descendants of Sakaria, Selas son are buried on the land. He said only Leota the husband of Leilua who is Natapus sister is buried on the property. And this was with the consent of his mother in accordance with a petition from Leilua as there was no where else to bury her husband because the land they lived on in Lalovaea was leasehold property. This is the same Leilua and Leota from Lalovaea that the applicant said in his evidence he lived with while he was at school and working in Apia before departing for Australia in 1982.

Faimasealofa also testified that the land has only been occupied by persons of Soo Lesina’s first three unions and apart from them, not by anyone from the fourth union with Natapu. People from Natapus side of the family rarely visited except for Leilua’s son who came and lived there for one year then left.

In support of this evidence the respondent was able to produce a number of documents from the archives of the Birth, Deaths and Marriages Registry. Such evidence is of course provable under Part III of the Evidence Ordinance 1961 and I am satisfied as to the authenticity of the documents and the validity of the certified copies produced at the hearing having cited the relevant originals which have now been returned to the custody of the Births Deaths and Marriages office.

Levaopolo Patisela the Registrar of Birth, Deaths and Marriages produced a certified copy of an entry from pages 307 and 308 of the ‘Register of British subjects residing in the Samoan Islands’, Exhibit "R-2" for the respondent. This shows the registration as a British subject on 15th July 1902 of one "James Wells, son of Thor and Emma Wells, born at Saleaula, Savaii, 39 years of age". There is also reference to other documents in the registration entry but the Registrar advised these old documents not surprisingly are no longer locatable. Further down the page appears the registration on 4 November 1905 of "Pone Wells, son of Thor and Emma Wells, 68 years of age born at Saleaula, Savaii but currently of Alamagoto Apia" and that of "Lea his wife". Following those entries are the registration of the "children of Pone and Lea Wells, all of Alamagoto in Apia, being Pele 24 years, Kolone 17 years, Wesleyiani 8 years all males, Tele 18 years and Kasia 10 years both females".

The respondent argues this confirms James Wells and Pone Wells were the sons of Thor and Emma Wells and that the "Wells" referred to in the applicants family tree and from whom they are descended is Thor Wells and they are descended from his son Pone not the other son James. Notably the applicants gafa also refers to "Pele, Uesiliana and Kasia" as being the children of Pone Wells and an unnamed female being the daughter of one Lilo of the village of Safai. In this respect the opposing genealogies share common threads.

Also produced by the Birth, Deaths and Marriages Registrar was a certified copy Exhibit "R-3" for the respondent of a birth certificate issued on 28 December 1971 for one "Valerie Wells" born 8 May 1916 as registered by her husband Mr B. Ah Kiau of Alamagoto. That birth entry shows Valeries parents to be "Jimmy Wells of England and Soo Leaula of Salamumu, Upolu". Also tendered into the evidence by Leata Time of the Records Section of the Catholic Archdiocese of Samoa Apia was a baptismal certificate for one "Valelia Wells" born at Alamagoto on 8 May 1916 and baptised the same day at the Mulivai Catholic Cathedral Apia by Father E. Bellward, Exhibit "R-7" for the respondent. That certificate comes from the official records of the Catholic Church in Samoa and lists "Jimmy Wells and Lesina Soo" as Valeries parents.

The respondent argues that "Jimmy" being the well known nickname in English for "James", these documents clearly show Valerie to be the legal issue of James Wells and Lesina Soo. Also produced from the archdiocese records was a baptismal certificate Exhibit "R-5" for the respondent for what appears to be an older sister of Valerie named "Malia Telesia born 9 December 1911 baptised at Mulivai 10 December 1911" who died a few days later on 15 December 1911 as evidenced by her death certificate also produced as Exhibit "R-6" for the respondent. These documents also show Jimmy Wells and Lesina Soo to be the parents but they do not greatly assist the respondents argument in relation to Valerie Wells and her parentage.

No other documents official or otherwise appear available to assist the court in its determinations. It was however agreed by counsels that because much of the evidence for both sides was hearsay evidence, they would not pursue arguments as to admissibility but sought the court to rule on the veracity and reliability of the evidence and whether it supported the applications before the court. This course of action the court is permitted to follow, see for example In the matter of an application by the heirs of Nimo unreported 8 October 1999, a judgment of Chief Justice Sapolu.

On a balance of probabilities I find the respondents evidence more credible and reliable. The case for the applicant relies completely on hearsay evidence whereas that of the respondent also incorporates official records. These documents establish that James and Pone Wells were the children of Thor and Emma Wells. I accept the argument that "Jimmy" is a common nickname for the more formal name "James" and in times of yore was even more common. On 28 December 1972 the husband of Valerie registered her birth in the Births, Deaths & Marriages Registry in Apia and the registration shows her parents to be James Wells and Soo Leula also known as Soo Lesina. There is no evidence Jimmy Wells had any other surviving children apart from Valerie and the baptismal certificate from a different archive of records confirms the birth registration entry. Valerie Wells appears therefore to be the sole heir and beneficiary to the estate of her father and I do so find and declare and she was accordingly entitled to dispose of the assets of the estate in any manner she saw fit. In this case she decided to share it with the three children of the other unions of Soo and with her good friend the respondent.

This is not to say the applicant is not descended from a "Wells". The evidence seems to indicate he and his branch are descended from the other children of Thor and Emma Wells, for the witness Matuavao Seiuli from their son Pone and for the applicant from their daughter Sela. In other words the "Wells" in the family genealogical record held by the Lands and Titles Court is a reference to "Thor Wells" not "James Wells". The applicant himself acknowledged this possibility in his evidence.

In assessing the reliability of Lands and Titles records caution must always be exercised because experience has shown that the further back they go the more carefully they should be scrutinised. This is one of the inherent dangers of an oral genealogical tradition. However the record produced is of some value.

The evidence of the applicants witness Matuavao Seiuli did not assist his case. He contradicted and had to correct himself a number of times on crucial matters of family history. I got the impression that he was a little confused about his own gafa which is surprising given he is an assessor of the Lands and Titles Court.

The following factors are also pivotal to my conclusions. Firstly the applicant by his own admission did not live or grow up on the Alamagoto property. In fact he spent 18 years in Australia before returning in 2000 and taking up residence on the land. Compare this to Faimasealofa Malo who lived on the property with his mother Matalena all of his life. Secondly the applicant had been told by his mother he had to seek the permission of the old women of the family residing on the land which he did. These women were Matalena and Peko the half sisters of Valerie who by that time had emigrated to New Zealand. The applicants own evidence was that he had no knowledge of the history of their family or the land - why would he when he did not live there. He only began researching the matter when the estate was being administered and this is again in contrast to Faimasealofa Malo whose evidence was about a close relationship with his mother both of them living on the land and sharing knowledge of the family history. In addition, the respondents evidence of genealogy comes from his mother, a more direct scource than that of the applicant whose mother appears to have long been deceased by the time the applicant began researching the matter. The respondents evidence is better quality evidence.

A further matter the applicant mentioned in his evidence which I need to refer to is his evidence of papers concerning the land that had been in the custody of a faifeau whose relationship to the family was not made clear. And evidence of an argument between the faifeau and the matais of the family resulting in the faifeau moving to live in American Samoa where he later died. The applicant said these important papers have consequently been lost. Whether this is true or not it does not assist the applicant because neither the papers or any evidence of what was in them has been placed before the court. The same applies to evidence of church records supposedly discovered by witnesses who have not been called in particular a process server. The court cannot have regard to evidence that is not properly adduced before it.

There was also the applicants evidence in cross examination that Valeries father was a palagi named "Simi" and Simi was a good friend of Pone and that is how Valerie came to be living on the land. It is quite plausible that "Simi" was in fact James Wells and that the friendship with Pone was because they were brothers. There are many areas like this where the evidence of the applicant is not entirely inconsistent with the case for the respondent. Another example is the names of the children of Pone as given by the applicant compared to the names of the children of Pone registered on the Register of British subjects. An even more striking example is the evidence of both the applicant and his witness that Pone had a brother named "Simi". This is also mentioned in their family genealogy where he is placed next to Pone. It is again entirely plausible that this "Simi" is in fact "James Wells" known to one and all as "Jimmy" or in our language, "Simi".

The last matter I wish to refer to is evidence of burial. Evidence of burial of ancestors on lands in this country is usually strong evidence of pule or control over or linkage to a property. In this regard the applicants testimony was that many members of Sakarias family, Sakaria being the son of Sela are buried on the land. But the evidence of Faimasealofa Malo was that only Leiluas husband Leota was buried there because of a personal plea made to his mother Matalena by Leilua. That evidence is clearly conflicting and could have been resolved in the applicants favour had he produced some other evidence to confirm his testimony. But he did not and as his evidence as to the names of persons supposedly buried on the land was sketchy and as I recall it was given rather hesitantly, I prefer on this issue the evidence of Faimasealofa Malo who at the end of the day is the applicants second cousin.

As stated earlier the reason I prefer the evidence of the respondent is because it is supported by official records and documents. In addition it is more consistent and cogent and as noted above it fits much of the applicants own evidence both oral and as per their family genealogical chart. The following orders will therefore issue:

1. The application by Matuavao Futi to be declared an heir and beneficiary to the estate of James Wells is declined as it has not been established on a balance of probabilities that their line descends from "James" aka "Jimmy" or in Samoan, "Simi Wells";

2. The evidence establishes there was only one surviving heir to the estate of James Wells, that is Valerie Wells formerly of Auckland New Zealand now deceased whose estate is being properly administered by the respondent in the terms of the last known will and testament of the said Valerie Wells;

3. Caveat 26639X against dealings with the Alamagoto lands of the estate that was lodged by the applicants to be removed forthwith as he has no caveatable interest in the property; and

4. I accept the applicants beliefs in the correctness of his claims were honestly and genuinely albeit mistakenly held. Considering all the circumstances of this matter I therefore make no order as to costs.

JUSTICE NELSON