Greene v Attorney General [2009] WSSC 81 (31 July 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

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

IN THE MATTER:
of Caveat 40X lodged by the Land Board against Parcel 111/63, Flur IV, Upolu Plan 14 U/IVS, Volume 7 Folio 132

BETWEEN:

THOMAS PATRICK GREENE,
MARGARET MARY GREENE, RONALD FREDERICK REYNOLDS
and on behalf of the Trustees of the Greene Family Trust
Applicants

AND:

ATTORNEY GENERAL
sued for and on behalf of the Minister of Land Board of Samoa.
Respondent

Counsel: S Toailoa for the applicants
M Betham for the respondent

Submissions: 8 July 2009
Judgment: 31 July 2009

JUDGMENT OF THE COURT

Introduction

1. This is an application for the removal of caveat 40X lodged in 1975 by the Respondent against title to a parcel of land ("the land") situated at Vaimea near Apia and registered in Volume 7 Folio 132 under the late Thomas Patrick Greene formerly of Vaimea and Auckland New Zealand. The basis of the caveat is the Respondent’s claim as a purchaser of the land pursuant to an Agreement for Sale and Purchase dated the 21st April 1975 between the late Mr Greene and the Respondent.

The Law

2. The onus is on the Respondent as caveator to show cause as to why the caveat should not be removed. The Respondent would be able to discharge the onus if it can show it has a reasonably arguable case for the interest it claims which must be a caveatable interest: See The Public Trustee v Lio Miti & others (10/7/95); Walter Jacob Von Dinkklage v Gregory Don Dincklage (6/12/95); Eugenie Ainslie Von Reiche v Montana Melton (18/3/05) (all unreported decisions Supreme Court of Samoa).

The court deals with the application for removal of caveat by way of a summary procedure. As the summary procedure is unsuitable for the determination of disputed questions of fact, it follows therefore that an order for the removal of caveat will not be made unless it is patently clear that the caveat cannot be maintained either because there was no valid ground for lodging it or that such valid ground as then existed no longer exists: Sims v Lowe [1988] NZCA 253; [1988] 1 NZLR 656; Chan Chui & Sons Ltd v Anthony Pereira (unreported 31/5/06).

The Parties

3. The applicants are the trustees of the Greene Family Trust ("the Trust") a trust created by the late Thomas Patrick Greene ("the Settlor") formerly of Vaimea near Apia and Auckland New Zealand. The settlor passed away in January 2000. By his will the settlor devised all his personal chattels and all properties jointly owned by him and his wife to his widow. The residue of the estate was given to the Trust.

4. The Respondent is a statutory board established under the Land Ordinance 1959 and continued under the Lands Survey and Environment Act 1989 which created the Department of Lands Survey and Environment now known as the Ministry of Natural Resources and Environment ("MNRE"). Statutory duties and powers of the Respondent are inter alia to administer, manage, develop, control, alienate and carry out all negotiations for the purchase of land by the government and the performance and completion of all contracts of purchase entered into by the government.

The Applicant’s Case

5. The Settlor is the registered owner of the land at Vaimea the subject of these proceedings. In 1975 when the Settlor wanted to migrate with his family to New Zealand he negotiated with the government. On the land at the time were rental accommodations known as the Palm Court Apartments and a printing business. It is the understanding of the applicants that for valuable consideration the government was granted the use and occupation of the land for twenty five years after which time the land would revert back to the settlor. The land they claim, reverted back to the settlor in 2000.

6. After the settlor’s death in January 2000 one of the applicants came to Samoa. His inquiries revealed the Vaimea land was still registered under the settlor. He also inquired as to the existence of a Sale and Purchase Agreement between the government and the settlor. Why he searched for that agreement was not deposed to in his affidavit, but he was told by an officer of MNRE that the land was sold by the settlor to the government but no documentary proof was found as documents were destroyed in the 1990 and 1991 cyclones. In the presence of the settlor’s widow, during one of the visits to the MNRE office about two months later the same officer offered to the applicants a quarter acre of government land at Afiamalu in exchange for the land. It should be stated now that if the court accepts that the MNRE officer (who has passed away) did offer government land in exchange with the land, such an offer is not binding on the Respondent. Mr Toailoa for the applicant properly and correctly did not touch on the so called offer to exchange in his submissions to bolster the case for the applicants.
   

7. Since the Respondent has not provided concrete proof of the existence of a Sale and Purchase Agreement, and since there is also no proof that the full purchase price was in fact paid to the settlor, the applicants contend there is no reasonably arguable case of a valid binding legal agreement between Respondent and the Settlor to purchase the land. In the absence of any proof of any agreement to purchase the Respondent did not, and does not possess a caveatable interest and the caveat must accordingly be removed.

The Respondent’s Response

8. Affidavit evidence by the Chief Executive Officer of MNRE and other officers attempted to establish the sale of the land in 1975 to the Respondent through a Real Estate Agent known as Samoa Agency which negotiated on behalf of the Settlor. By a cabinet submission dated 20th January 1975 the Respondent recommended the purchase of the land at a price of $155,000. The Cabinet submission is titled:

"Purchase of Land and Palm Court Apartments and Printing Works at Vaimea."

Part of the proposal states:

"It is proposed that Cabinet approve of the purchase of the above properties for $155,000 which includes the following assets:

1. Land: Part Parcel 111/63 Flur IV Upolu situated at Vaimea and containing an area at 0a.1 r. 26.9p (a little less than ½ acre). The land is owned by Mr Thomas Patrick Greene.
   

Cabinet’s decision on the proposal was deferred to await comments from Treasury. In its meeting of 5th February 1975 Cabinet declined the proposal to purchase the land.

9. But as a result of further representations by Samoa Agency on behalf of the Settlor to the Respondent, Cabinet at its meeting of the 5th March 2005 finally approved the proposal by the Respondent to purchase. The relevant part of the Cabinet minute states:
   

(v) Palm Court Apartments, Land and Printing Works

"On this matter being again raised, Cabinet was informed that the Samoa Agency had again approached Government regarding the same property and in a discussion made with the Departments concerned, the Agency had agreed that the Palm Court Apartments including land and printing works situated at Vaimea be offered to Government at the total costs of $125,000 with half of this amount being required very soon and the other half to be payable within a period of twelve months.

Cabinet having received this information decided that the Palm Court Apartments including the land and Printing Works be purchased by Government at $125,000 on the understanding that one half of this amount will be required very soon with the other half to be paid within 12 months; that Lands and Treasury Departments be required to take any necessary action immediately to ensure the acquisition of this property by Government."

10. On the 11th April 1975 the Director of Lands wrote to the Head of Treasury:

"The Financial Secretary,

Palm Court Apartments, Land and Printing Works.

I refer your memorandum 1/12 of 3 April 1975 to the Minister of Finance in respect of the above purchase by Government. I have noted with the fact that the first deposit of $45,000 has been made for the purchase of the above premises with the balance payable on 1st October 1975 and 1st April 1976. I have also noted the fact that the first deposit of $45,000 has come out of the Unauthorized Expenditure and that the provision for the reimbursement of $40,000 due in 1st October 1975 would be made in the 1975 Supplementary Estimates. I presume that these two amounts will be included in this department’s request for requirements in the 1975 Supplementary Estimates. ..."

11. On the 15th April 1975 the office of the Attorney General advised the Director of Lands that it will attend to the Settlor to sign the Agreement for Sale and Purchase before it is forwarded to the Respondent for execution. It will also lodge a caveat to protect government as the government will not take title until the full purchase price has been paid. According to the caveat lodged and registered on the 1st May 1975 the Agreement for Sale and Purchase dated 21st April 1975 was the basis for the registration of the caveat.

Discussion

12. Whatever dealings the Settlor had with the government in 1975 it appears from the affidavits of the applicants that the applicants, and in particular, the widow of the settlor was not fully versed with the negotiations. If indeed the rental accommodations were leased or rented to government for twenty five years, there is no indication in the affidavits that the settlor or anyone of his family traveled to Samoa between 1975 and 2000 to inspect the property for fair wear and tear, or to attend to any repairs, or to show any interest in the property if indeed the title to the land was still vested in the settlor. It was not until after the death of the settlor that one of the applicants traveled to Samoa to inquire if a Sale and Purchase Agreement existed.

13. Copies of records kept by Ministry of Natural Resources and Environment which are annexed to the affidavit of the Chief Executive Officer clearly illustrate:

(a) that as a result of approaches by the settlor through a Real Estate Agent the Respondent sought the approval of Cabinet to purchase the property of the settlor.

(b) The purchase price of $125,000 was paid by installments. After the payment of the first installment, the Agreement for Sale and Purchase was executed.

(c) A caveat was also lodged based on the Agreement for Sale and Purchase.

14. As the purchaser under the Sale and Purchase agreement the Respondent had a caveatable interest to protect. The Court is entitled to accept that the Registrar of Lands was satisfied at the time the Caveat was lodged for registration as to the existence of a Sale and Purchase Agreement. The disappearance of the Sale and Purchase agreement has been explained by the Respondent. Since the Court has accepted that a Sale and Purchase Agreement was executed and it therefore existed, the disappearance of the agreement should therefore not be treated at fatal to the respondent.

15. A lot of noise has been generated about the absence or non existence of an Agreement for Sale and Purchase yet not a mention has been uttered about the existence of a tenancy or lease agreement. It would be fair to assume that no responsible government would enter into any binding agreement or transaction which is not recorded in writing. Existence of documentary evidence point squarely to the Sale of the land by Agreement for Sale and Purchase which was the only transaction approved by Cabinet on the recommendation of the Respondent.

16. It would also be fair to assume that no responsible businessman would lease or permit others to rent and use his premises and business without a written agreement to protect his assets in the event of damage. When one of the applicants traveled to Samoa in 2000 soon after the settlor’s death his inquiry was directed at the existence of an Agreement for sale and purchase. It would therefore be a logical and reasonable assumption that he had knowledge of such an Agreement.

17. The Respondent has clearly demonstrated its justification for lodging the caveat so as to bring itself within the requirements of Section 51 Land Titles Registration Act 2008. It has a reasonable arguable case for the caveat to remain on the Register.

Conclusions

(a) For the foregoing reasons the application for the removal of the caveat is denied.

(b) The applicants are to pay respondent’s cost of $1200.

JUSTICE VAAI