Public Trustee v Telesi [2010] WSSC 161 (1 November 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

TAULAU AUIMATAGI-TAUTALAFUA acting for and on behalf of the heirs of AUIMATAGI ETEUATI and FITI AUIMATAGI, his wife.
Applicant

AND:

THE PUBLIC TRUSTEE pursuant to sections 38 and 44 of the Public Trust Office Act 1975.
Plaintiff

AND:

FILITAA SAUAGA TELESI sued on her behalf and on behalf of her family members residing on the estate land at Tufuiopa.
Defendant

Presiding Judge: Justice Slicer

Counsel: R Schuster for the Applicant
S Leung Wai for the Plaintiff
T Toailoa for the Defendant

Hearing: 6 and 8 September, 2010

Judgment: 1 November 2010

JUDGMENT OF SLICER J

1. There have been varying actions, applications, replies and other forms of interlocutory proceedings requiring differing headings to the entitlement of the proceedings. The entitlement used in these reasons for judgment are, for convenience, those chosen by counsel in their closing submissions.
   
2. The Public Trustee is the Administrator of the estate of Fiti Auimatagi who died intestate. Fiti had been born towards the end of the 19th century. Her birth certificate records that she was born on 10 May 1890 and although there is some evidence suggesting that she had been born earlier, that date is accepted by the court as being correct. Her mother and father were Tavai Moli and Moli Malietoa, respectively. On 14 October 1915, Fiti married Eteuati Ropati, a Tongan at Malie.
   
3. On 16 September 1942, Evelina and Teuila Albert conveyed to Fiti and her husband as joint tenants in fee simple land at Tufuiopa. It is this land which is the subject of these proceedings. The name of the husband was stated as Auimatagi; the matai title rather than Eteuati. Consent to the alienation of that land as required by The Native Land and Titles Protection Order 1939, section 19 was given by the Acting Administrator on 18 December 1942.
   
4. Two issues, central to the disposition of these proceedings require resolution.
   
5. The first is the identity of the man, Auimatagi. The defendant contends that the purchaser was Fiti's second partner who had used the name as a title rather than his given name Levao. The Tautalafua family claims that Eteuati had been bestowed the Auimatagi title by Fiti's father on or following her marriage in 1915.
   
6. The second concerns Fiti's date of death. Different certificates of death were tendered in evidence. The first records that a Fiti Auimatagi died at Motootua Hospital on 22 May 1962, aged 82 years. The second records the death of Fiti Auimatagi at Malie on 20 September 1965. There are significant differences between other materials furnished in the respective certificates.
   
7. Levao died on 19 August 1964. His death certificate records that he had been married to Fitisemani Malietoa Moli, although the place of marriage was unknown. Thus if Levao was the original purchaser and outlived Fiti, her property would pass to him by survivorship and thence to his surviving children.
   
8. The Public Trustee maintains the position that the second certificate correctly records Fiti's death and proposes to administer the estate accordingly. Filitaa Telesi seeks a declaration that the land belongs to the estate of Auimatagi Levao through survivorship and only his heirs are entitled to the estate land.
   
9. In March 2009, the Public Trustee applied as Administrator of the estate of Fiti to be registered as the proprietor of the land. In doing so he accepted that Fiti had survived Auimatagi Eteuati and as a joint tenant had been the owner of the land.
   

Death Certificate

10. As recounted there are significant differences between the 1962 and 1965 certificates. There are further differences between copies of the same certificates tendered in evidence. It would appear that the Registrar has certified differing forms of record. He explained that the second record would be removed and the first amended where appropriate.
    
11. The first copy of the 1962 certificate omits the gender of the deceased whilst the amended copy, certified by the Registrar records the gender as male. The first copy of the 1965 certificate records the gender as female whilst the amended copy had the entry of gender as 'male' handwritten over a blank space. The copy is marked 'cancelled entry'. The respective dates of issue for the 1962 documents are 8 October 2007 and 19 November 2009 and for the 1965 entries, 7 November 2007 and 19 November 2009 respectively.
    
12. The more significant differences between the 1962 and 1965 entries are:
    

Registration No.	2007000547 (1962)	2005000039 (1965)
Gender	Blank	Female
Date of Death	22 May 1962	20 September 1965
Place of Death	Motootua Hospital	Malie
Age at Death	82Y	NR
Cause of Death	Sickness	Not Determined
Medical Attendant	Dr. Auvaa	Blank
Date of Burial	23 May 1962	21 September 1965
Mother First Name Surname	Lauaga Meleisea Auimatagi	Not Recorded Not Recorded
Father First Name Surname	Auimatagi Muliaga	Not Recorded Not Recorded
Marital Details Place of Marriage To Whom Married First Name Surname	Apia Levao Not Recorded	Not Recorded Auimatagi Eteuati

13. The certificate of Fiti's marriage records her father as Malietoa Moli and mother as Tavai Moli. That the 1962 entry of Fiti might refer to a different and male person is belied by the entry of Levao as husband. If the 1962 certificate is an accurate record, Fiti would have been born in 1880, not 1890. Further, the certificate contradicts the parental names stated in the 1915 certificate of marriage. The certificate of death of Levao Auimatagi (19 August 1964) records the place of marriage to Fitisemanu Malietoa Moli as unknown.
    
14. The evidence of the Registrar of Births, Deaths and Marriages and the court's conclusions will be considered separately.
    

Church Records

15. No record of any marriage between Fiti and Levao was provided at trial. Sina Taulau Auimatagi, Fiti's great grand-daughter gave evidence that she had searched the Samoan records for such a marriage but had been unable to find any such record.
    
16. The Public Trustee called the Reverend Toai Milo, the current Records Officer for the Methodist Church. He produced a church letter, wrongly dated, signed by the Treasurer of the Church's central office stating that Fiti Auimatagi, a female who had died on 20 September 1965 was buried on 21 September 1965 at Malie following a service held at the Malie Methodist Parish by the Reverend Asi Faleao. The Reverend Milo conducted his own search and provided a copy of the register 'Ekalesia Metotisi Samoa Fa'amauina o Maliu' which corresponds with the details provided in the Church letter. He had also checked the entries for 1962 and had found no entry of any burial service for a Fiti Auimatagi in that year. There was however, a record of a burial service for Taufaiu Auimatagi (Sina's grandfather) conducted at Malie on 9 March 1962. That entry is confirmed by certificate of death 2005 000040, recording Taufaiu's death on 8 March 1962. That same certificate records Taufaiu's parents as Fiti and Eteuati Auimatagi.
    

Family Histories

17. The respective families gave differing versions of their family histories. The court accepts the general accounts and that differences are a product of unreliable sources or memories affected by time. An example might be that members of the Levao family confused the burial service of Taufaiu in 1962 with that of Fiti conducted in 1965. The court relies more on the documentary and uncontroversial evidence in reaching its findings.
    
18. Fiti was the matriarch of her family. Born on 10 May 1890, she married Eteuati Ropati, a Tongan on 14 October 1915. Sina said that her father told her that Eteuati, as a Tongan had taken as his name a village name and that Fiti's father had bestowed the title of Auimatagi on him upon or subsequent to marriage. The court accepts that the title was bestowed and registered as recorded in the registers maintained by the Lands and Titles Court. The records do not establish the date of bestowal although one document (Exhibit "A6.1") suggests registration in October 1954. However, another document (Exhibit "A6.2") bearing the date 6 October 1955, also records the registration of the title to Taufaiu, Eteuati's son and Sina's grandfather which suggests a far earlier date for Eteuati's bestowal and registration. Irrespective of time, the court accepts that Fiti's father had bestowed the title on Eteuati during the period of their relationship as father and son-in-law.
    
19. The court accepts that Fiti had a second relationship with Levao but there is no evidence that they were married. Levao used the title name Auimatagi through usage, not bestowal, since there is no record of registration. It is probable that he commenced to use that name through his relationship with Fiti. There is no evidence as to when that relationship commenced. Sina's father Tofia (born in September 1933) is shown as holding the registered title Auimatagi, so the continuing bestowal from Eteuati to son and grandson corroborates Sina's version of family history that Fiti's relationship with Eteuati continued beyond 1942. Liona Teleaga was born in February 1942, recalls growing up with his grandfather Levao and Fiti in Tufuiopa. However, his memory was blurred through his young age as he recalled his grandfather as being old and in his eighties. His family history of who lived on the land does not assist in determining the identity of the purchaser.
    
20. Sina Taulau Auimatagi is the granddaughter of Fiti's son Taufaiu. Her father Tofia also held the title Auimatagi.
    
21. Sina did much research into the genealogy of her family and located many of the documents tendered at trial. She told the court that her father, an immediate descendant of Fiti and Eteuati, had always maintained through the family history that it was Fiti and Eteuati who had purchased the 1942 land. She searched the records and could find no trace of any title held by Levao. On her account Fiti and Levao had no children. She did not know when Eteuati died. It is not necessary to examine in detail her genealogical account of adoptions, growing up, caring for an extended family and the like since the court accepts the general import of her evidence.
    
22. From her evidence it is clear that there is discord between the two family units concerning the land.
    
23. Talagi Tua was born in 1931. His father had been adopted by Fiti and he recalls visiting Fiti as a child but his real memory of Fiti and Levao was when he was about twenty, i.e. in the early 1950's. His evidence does not establish that it was Fiti and Levao who purchased the land in 1942.
    
24. Liona Teleaga was born in 1942. He left for American Samoa in 1963. His early memories would be those of a child aged 7 or 8, i.e. that Levao was present in his mother's life as a husband and step-father, not that it was Levao who was his biological father in 1942 and by inference the purchaser of the land.
    
25. He also provided a family genealogy and confirmed that Levao had been married previous to his relationship with Fiti. Liona, and Eleni Mason claimed Fiti's death to be 1962 but the court finds that the passage of time has caused either reconstruction or transference of the earlier Auimatagi death in 1962 to that of Fiti.
    
26. The court prefers the evidence of Sina on this matter of the date of Fiti's death.
    

The Registrar and Conclusion

27. The Registrar of Births, Deaths and Marriages Levao Filipati Eteuati ("the Registrar") gave evidence, and produced registers and other documentation. He explained that his office depended on the information received by the informant. In this case the earlier certificate was completed on information presumably provided by the attending doctor and the Hospital. However, the information did not disclose the gender of the deceased, although the Christian names are identical.
    
28. The recorder explained:
    

"there are two records of the death of the said, Fiti Auimatagi. The first record that was recorded in the register was registered on the 4 June 1962. It was entered into the computer system in 2007. The second record was recorded in 2005 on the strength of the confirmation from the Methodist Church. These two records have the same first names of the deceased & the surname but there are differences. The first record records that the deceased passed away at the Motootua Hospital on 22 May 1962. The second record it stated that the deceased passed away at Malie village on 22 September 1965."

29. The policy of the Registrar's office is that if there are two entries with differing dates of death in the system the latter is deleted and, if necessary an amendment made to the first entry depending on the quality of the information provided. Here the 1965 entry was deleted in favour of the earlier record.
    
30. The later record of death was entered first simply because the office was introducing a computer-based record and that was the order in which the re-programming was conducted.
    
31. The Registrar advised the court that the 1962 documentation showed that 'the final service was conducted by Rev. Faolalo Levaula of the London Missionary Society'. The confirmation letter of 6 December 2004 stated:
    

"...that the person passed away on 20 September 1962 (sic 1965) at Malie. The funeral service was held at the Malie Methodist Parish & was conducted by a Methodist minister, Rev. Asi Faleao (later amended in his evidence to 1965)."

32. The Registrar did not regard the churches as providing the "most reliable keepers", preferring to rely on sworn statements. His office has adopted the policy that:
    

"every church record of any person who is more than 16 years has to be accompanied by a sworn statement, statutory declaration. That's the policy now."

33. Where there was a difference, the policy stands in that:
    

"if there are any amendments to the record, it has to be done on the first entry but the second entry is deregistered."

34. In cases of disputation, he said:
    

"Any dispute in that, that's (for) the court to decide."

since

"the correctness or otherwise of any info is not for the Registrar to investigate unless it is satisfied, that the Registrar is satisfied that the first record is not correct & the second record is correct, then the first record is amended and the second record is deregistered."

35. In this case, the informant in the 1962 record was Loini, the niece of the deceased. The Registrar did not have access to the records of the Methodist Church previously identified.
    
36. The court then asked the Registrar about the death of another person named Auimatagi as the following exchange shows:
    

"HH: In 1962, another man who is seen as grandfather was buried & a service conducted on 9 March 1962, he has the same title name Auimatagi & his parents were Fiti & Eteuati. It wouldn't be possible that somebody's just got the surname for the 1962 one & confused it w/the titled man who died in the same year?

Wit: I cannot answer that, sir.

HH: why I asked that is b/coz the gender was left blank in the 1962 one & the age of death being shown to be 82, and we do know that there was a man w/that surname that died in that village, Malie in that year.

Wit: if I may explain the format of the computer marriage certificate, death certificate.

HH: yes.

Wit: all deaths gender is left out from the computer print out, that is a security check. It was introduced not long ago so that we enter manually the gender of the deceased & sign & stamp by the Registrar.

HH: so, when it is being transferred in the computer, as a security you don't put the gender in?

Wit: the gender is in the computer system but when you print it out it is not printed."

37. The Registrar maintained his opinion that the 1962 certificate was the correct record. In cross-examination he conceded that the 1915 marriage certificate correctly identified Fiti Moli as the bride and Eteuati Ropati as the groom, and that the names of the parents, shown in the certificate of marriage as Malietoa Moli and Tavai Moli differed from the recorded names of Fiti's mother in the 1962 death certificate, but were consistent with Fiti's birth certificate.
    
38. He further agreed that the 1965 certificate correctly identified the husband Eteuati as her husband.
    
39. There was no corresponding documentation showing that Fiti had ever married Levao as recorded in the 1962 certificate although there is clear evidence that they cohabited. A further discrepancy is that the 1962 certificate records Fiti's age as 82 years which would place her birth to as 1880 rather than 1890 as shown in her birth and marriage certificates.
    
40. The Registrar offered to conduct a further search of the records but neither party requested him to do so.
    
41. A fair summation of the Registrar's position is shown in his following exchange with the court:
    

"HH: would I be fair to you Registrar if I summarized your evid. this way? Where we have two certificates, it is the policy of my office to delete the second.

Wit: that is correct.

HH: if necessary, we will amend the first w/verified info rather than, you add an amendment to it but you nevertheless just remove the second, that's the policy?

Wit: that is correct your hon.

HH: if there is a factual dispute about the contents of the certificate, or a dispute between parties, your answer was that that becomes a problem for the court not for me since my duty is to record, it is not my duty to conduct investigations in the field.

Wit: that's right.

HH: is that fair to you?

Wit: as far as I'm concerned it's fair b/coz I have come across numerous cases that people are arguing in front of me on the correctness or otherwise of cases. So what we do is present to those people what was recorded, what we recorded and if they do not agree then it is out of my, they have to find it –

HH: it's not your duty –

Wit: it's not my duty to – I don't take sides."

42. There was a discrepancy in the register maintained by the Methodist Church records which show date entries out of sequence. There is evidence of the death of Taufaiu Auimatagi on 8 March 1962. Fiti's record shows that she was buried on 21 September 1965 at a service conducted by Rev. Asi Faleao, the same minister shown in the material inspected by the Registrar.
    
43. The court accepts the combined evidence of the witnesses who said they attended Fiti's funeral in 1965, the records of the Methodist Church, the discrepancies in the 1962 certificate and the accuracy of the 1965 document conforming to the proven dates of birth and marriage and the identity of Eteuati.
    
44. The court is satisfied to the requisite degree that Fiti Auimatagi, born on 10 May 1890 died at Malie on 20 September 1965.
    
45. She survived Levao Auimatagi Tofia who died on 19 August 1964.
    
46. The Public Trustee is required to administer her estate on behalf of her heirs.
    

Land Ownership

47. There was a secondary claim advanced by defendants of the Telesi family. On 16 December, Evelina and Teuila Albert transferred land to Auimatagi of Tufuiopa, described as a Samoan male, and Fiti his wife. Eteuati had been born in Tonga although the court notes that the Acting Administrator consented to the transaction under the Native Land and Titles Protection Order 1934, section 19.
    
48. The Eteuati family claims that Fiti's father bestowed the title Auimatagi on or soon after marriage and that it was he who had jointly purchased the land with his wife Fiti. Eteuati predeceased Fiti by many years and irrespective of whether she died in 1963 or 1965, she still owned the land as a joint tenant through survivorship.
    
49. The Telesi family claims that Levao Auimatagi Tofia ("Levao") had adopted the title name when he lived with Fiti and it was he who had purchased the land jointly with Fiti. To them the date of their respective deaths was significant. They rely on certificates of birth showing Levao as their father or grandfather.
    
50. There is no doubt that Fiti cohabited with Levao. But there is no evidence that Levao had ever married Fiti. There is conclusive proof (Exhibit "A6.1-6.3") that Eteuati held the title Auimatagi, registered in the Lands and Titles Court at least into the mid-1950's. It is unlikely that some 13 years earlier the Acting Administrator would have consented to the transfer of land to a person not legally entitled to that title.
    
51. The Eteuati family claims that Fiti had no children by Levao (she would have been 52 at the date of the conveyance) but concede that Levao whom she met much later might have contributed to their upbringing and causing them to honestly believe that he was their natural father.
    
52. The claim by the defendant that Teleaga was the adopted son of Fiti and Levao is rejected. His marriage certificate of 17 February 1940 shows his age at that time to be 34 years. That would place his date of birth as 1906, 9 years before Fiti married Eteuati. Other submissions by the defence include one that Eteuati never existed, a claim belied by undisputed documentary evidence and the records of the Lands and Titles Court.
    
53. There is a further contention that even if Fiti and Levao had never married in church or been registered as husband and wife, they had nevertheless married in accordance with Samoan custom (The Samoan Public Trustee v Annie Collins & Ors [1961] WSLR 52). There is no evidence of 'customary marriage' simply cohabitation.
    
54. The defendant submits further that if Levao survived Fiti and even if they were not married in law his estate would remain entitled to a portion of the estate by virtue of the Administration Act 1975, section 44. He relied upon the decision of the New Zealand case of Re O [1975] 1 NZLR 444. But that case engaged the provisions of New Zealand legislation (Family Protection Act 1955, sections 2(3), 58) providing for the rights of illegitimate children and brought within the Administration Act NZ 1969. There were no equivalent legislative provisions in Samoa, in the relevant period.
    
55. These claims are rejected.
    
56. The primary finding of the date of death resolves the issue of title by survivorship. The secondary finding is that it was Eteuati Auimatagi who purchased the property jointly with his wife Fiti.
    
57. As earlier stated there are a number of actions or commenced applications made during the course of these proceedings. The Ordinary Summons 118/07 was commenced by the Public Trustee against Filitaa Sauaga Telesi on 28 September 2007 following an ex-parte application made on 24 September.
    
58. There had been an earlier Statement of Claim by Leauta Laufiso Aumatagi against Filitaa Sauaga Telesi and others commenced on 3 August 2007. Subsequent applications contain differing headings, with the respective parties described in differing forms. Orders will be needed to dispose of all the procedural matters. Counsel are requested to assist the court in the final disposition of these proceedings.
    
59. The Public Trustee seeks declarations and injunctive relief. The court will hear counsel on the terms of the orders sought and their formulation to give effect to these reasons for judgment.
    

(JUSTICE SLICER)