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Liaga v Taleni [2010] WSSC 166; CP 160 of 2009 (13 December 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU


C.P. 160/09


BETWEEN:


TUILAEPA GAULUA M. LIAGA Retired of Magiagi near Apia
First Plaintiff


AND:


OLIVA TUILAEPA Salesman of Magiagi near Apia
Second Plaintiff


AND:


TIAULI TALENI Matai and SUSANA MOIMOI Domestic, both of Magiagi near Apia
Defendants


Counsel: S Hazelman for the plaintiffs
F Vaai for the defendants


Hearing: 24, 25 and 26 November 2010


Written Submissions: 3 and 8 December 2010


Judgment: 13 December 2010


JUDGMENT OF SLICER J


  1. The first named plaintiff Tuilaepa Gaulua Liaga ("Tuilaepa") was the original purchaser of an allotment land at Magiagi registered in his name in 1973. In 2009, he conveyed one half of that land to his nephew Oliva Tuilaepa ("Oliva"). The defendants, Tiauli Taleni and Susana Moimoi ("Taleni" and "Susana" respectively) are members of the same family who dispute ownership of the questioned land. Abbreviation of names is for convenience and not intended as a discourtesy.

History of Proceedings

  1. The disputed land adjoins land held and occupied by the family according to title allocated by the Alii and Faipule of the village of Magiagi. Following independence the Government of Samoa formally granted land to the Alii and Faipule of Magiagi (see generally: The Samoan States Ordinance 1934; The Lands and Titles Ordinance 1934 Part IV; The Samoan Status Act 1963, section 9; The Alienation of Customary Land Act 1965; The Lands and Titles Investigation Act 1966, section 20; Western Samoa Trusts Estates Corporation Ordinance 1961, repealed Action No. 16 of 1977, Samoa Act 1921).
  2. There is no precise evidence of the date of the original grant or the date of the meeting, but the evidence suggests that the original promise to grant land to the village was made in late 1950's and the meeting held soon after.
  3. Mataipule So'afa Felaga'i ("Mataipule") is the only surviving member of the Alii and Faipule of Magiagi who was present when the council requested the Governor for the land in the 1950's. He had been bestowed a matai title in 1956. Some years later the then Government of the Independent State of Western Samoa honoured that promise and by deed dated 10 February 1969, sold eight acres of land for a purchase price of SAT$765 in accordance with the Land Ordinance 1959, section 9. The deed was registered on 12 February 1969. The negotiations had commenced in 1957 and Mataipule, as Secretary of the Alii and Faipule collected 10 shillings each month from each family and paid the same into a trust account maintained by the Treasury Department. Tuilaepa had made his final payment in the early 1960's.
  4. Eight acres were sold, two of which were allocated to a school. The remaining six acres were to be sold to the families of Magiagi, three families to one acre.
  5. The Alii and Faipule had decided that if the matai of each family could not afford to buy land, it would sell to any taulealea of each family who had money to buy land.
  6. Tuilaepa's mother Tautau Liaga Tuilaepa ("Tautau") wrote to Tuilaepa in New Zealand advising him of the decision. He sent £50 to Tiauli Matiu, his matai as the purchase price for one acre and £10 to help with expenses for the family and the costs of purchase.
  7. I accept the evidence of Mataipule that Tuilaepa, then living in New Zealand, paid £50 for one acre to Tiauli Matiu which was recorded. I accept that in the early 1970's when all the monies had been received for the individual purchases the lawyer Jackson prepared the necessary documentation for all the transfers which resulted in the conveyance to Tuilaepa dated 9 November 1973, of an estate in fee simple in the land. The conveyance was signed by Lupetaliaami Samu, Laufau Siveave and Folasaaita Meki on behalf of the Alii and Faipule of Magiagi.
  8. The village land was not surveyed until March 1973. The Survey Plan was registered on 6 April 1973 and recorded as Court Grant No. 3484. On 9 November 1973, the Alii and Faipule conveyed Parcel 740 (1a 0r 00 6p), the disputed land (to Tuilaepa) in Volume XI Folio 45 of the Land Register. The recorded land was held as freehold title.
  9. There had been a clear distinction between customary land, land sold to the village, land sold to families through their matai and land sold to individuals in their own right.
  10. Tuilaepa had lived and worked in New Zealand since a young man following adoption or care by his pastor but retained his Samoan family and identity. No one had lived on the land prior to the purchase.
  11. In 1963, he returned to Samoa to attend a hearing of the Lands and Titles Court (see: Samoan Land and Titles Protection Ordinance 1934, repealed by The Lands and Titles Act 1981, section 95), concerning the disputed land. Tiauli Matiu, the man who had received the purchase price, had claimed that the land came under his pule as the family matai. In response Tautau had written to the court explaining that:
  12. The court rejected Matiu's claim.
  13. In 1973 Tuilaepa returned to Samoa for the bestowal of his title. Whilst there he arranged for the survey and conveyance of the land. Tautau who died in 1983 made no objection to the deed or its registration.
  14. A further claim for title to the land was rejected by the Lands and Titles Court in its decision dated 6 May 1999, a decision upheld by the Chief Justice on 4 June of the same year. Those proceedings concerned attempts by the nine members of the Alii and Faipule of Magiagi to evict Leiloa from occupying the land.
  15. Tuilaepa again returned to Samoa in 1979 following the illness of his mother. He was unable to return for her funeral for reasons outside of his control. He had contributed to her care and maintenance throughout his adult or working life.
  16. All witnesses agreed that Tautau, as the family matriarch, made the important decisions concerning allocation of dwelling spaces on the communal land and acted as a 'de facto' trustee for the adjoining one acre freehold title. But she acted as trustee for her son Tuilaepa, not the extended family. On her death, the role of 'caretaker' was undertaken by Leiloa, who had returned to live on the land in 1978. Oliva had grown up on that land.
  17. Tuilaepa lived and worked in New Zealand until his permanent return in 2006. He and his wife Asisiga originally stayed with his sister Paluli whose home was on the customary land but after tensions, partly caused by the land issue moved to the home another family member following which they built a small hut, 10 feet by 10 feet, on the freehold title. Eventually in 2008 the Bishop of the Church of the Latter Day Saints arranged for the allocation of a small housing unit which was dismantled and re-erected on the land later that year.
  18. The tension culminated in Tuilaepa instructing his solicitors to write a letter, dated 6 March 2006, to his brother Leiloa, Tiauli and Susana, his nephew and niece respectively. The letter relevantly stated:

"Our instructions are that you and your family have occupied part of the property without his prior consent and approval...In law therefore, you are occupying the property as a tenant-at-will meaning on a month by month.


Our instructions are to demand you and your family to vacate the property on or before 30 April 2006. You are required to remove your buildings on the property and all your personal belongings by 30 April 2006. Failure to comply with this demand will mean our Client will have no choice but to seek a Court Order to evict you and your family from the property.


Our Client is anxious to sell part of the property to fund the construction of his home on the remaining part of the property hence the need for your family and other families occupying the property to vacate the property."


  1. The three family members named above lodged a caveat on the title to the property. There were discussions and a consensus reached that 'the two old men', both Tautau's sons, would resolve the issue. Later that year the caveat was withdrawn. In June 2009 the plaintiffs decided to subdivide the land into two half acre lots intending to sell the 'front portion' of the land and retain the 'rear section' for their own use and/or residence. The defendants, their families and supporters impeded the survey by violence (personally or by direction and incitement) on three occasions. In doing so, they disobeyed an order of this court on the third occasion. Any person who seeks equity in this court ought to come with clean hands. The violence instigated by the defendants extended to the stoning of Tuilaepa and attempts to assault Asisiga.
  2. Despite the problems with survey the plaintiffs were able to enter into a contract with a construction company for the sale of the half acre at a price of SAT$240,000. The intention of the vendors was to use the money to help Tuilaepa, his wife and Leiloa in their retiring years, to improve their dwellings and to help the extended family generally. The defendants and their families rejected any compromise. Some installments required by the contract have been made by the remaining terms stayed pending the outcome of these proceedings.

The Proceedings

  1. Had the family accepted the compromise, Tuilaepa was prepared to allow Susana and her family to retain and use their existing home on the remaining portion. Most of the extended family lives on the adjoining communal land. He changed his intention because of the conduct and ill will of the defendants and their families.
  2. In 2009 the defendants lodged a fresh caveat No. 32726 over the title.
  3. On 14 September 2009 the plaintiffs commenced proceedings in trespass and nuisance. On 28 June 2010 Sapolu CJ, following the hearing of a Strike Out Motion, stated:

"(1) The cause of action in nuisance is clearly unsustainable and both counsel have agreed on that point. So cause of action in nuisance is struck out.


(2) Secondly, the remaining cause of action in trespass and the defendant's counterclaim in adverse possession are both adjourned to a substantive hearing when the court will have a much better view of the facts and the legal issues involved in this matter."


  1. The plaintiffs by their Amended Statement of Claim seek:
  2. They also seek a declaration that they are the legal and equitable owners of the land entitled to sell all or part of the land.
  3. The defendants deny trespass and claim that they contributed to the costs of transfer and renovations of the 'Mormon' house. They claim the land not as customary but 'family freehold land'.
  4. The defendants have sued the plaintiffs by way of Counterclaim. The Counterclaim is based on four bases namely;

"33 Disputes over the land in dispute with other family members were defended by Tautau and her children, not the First Plaintiff himself".


The pleading was not simply wrong; it was false. The records of the Lands and Titles Court show that Tautau wrote to the court setting out the circumstances of the purchase and the status of the land. The records show that it was Leiloa who was named by the nine members of the Alii and Faipule as the effective respondent. Two of the named petitioners held the title Tiauli. In 1999 the court and the Chief Justice held the land to be private title. These things were known to at least some members of the defendants' families.


The pleading also claim that the plaintiffs are guilty of unconscionable conduct.


(2) Breach of Constructive Trust

The defendants denied that Tuilaepa had purchased the land for valuable consideration and had merely paid the costs of the village in registration. They claim that he held the land as a trustee for Tautau and her family and their descendants. The pleadings do not define the extent or duration of the trust.


(3) Adverse Possession

The pleading is both a shield against any eviction order and a sword for equitable remedy alleging that the defendants and their families:


"65 ...had exclusive possession of the land in dispute against the plaintiffs and the whole world for a period of not less than 12 years.


66 the defendants and their families exercised control over the land in dispute belonging to them."


In their claim for remedy the defendants claim:


"(IX) A declaration that Tautau's heirs, including the Defendants and the members of their families whom they represent in these proceedings, have had exclusive possession of the land in dispute against the Plaintiffs and the whole world for a period of not less than twelve (12) years and are entitled to the land in dispute by virtue of adverse possession..."


On the pleadings the defendants claim entitlement to evict Tuilaepa from the land. At trial counsel for the defendants disavowed any intention to evict Tuilaepa or Liaga from the land but did not offer to amend the order sought.


The claimed order will be considered on the basis of the pleading rather than assurance by counsel.


(4) Unjust Enrichment

The pleading suggests that the first plaintiff has been enriched through the movement by the defendants of the 'Mormon' house onto the land and further enrichment by the renovation of that house to the detriment of the defendants who had paid for the costs of removal and renovation.


Orders Sought

  1. The defendants seek by their Counterclaim orders that:

"(i) A declaration that the acquisition of the land in dispute from the village of Magiagi in or about the late 1950s by Tautau was for the occupation, use and benefit of Tautau and her children (and subsequently their children) and the land in dispute has been owned from that time by Tautau and later by her children as a trust for the benefit of Tautau and her heirs; and


(ii) A declaration that the trust for the benefit of Tautau and her heirs created in or about the late 1950s has subsisted and continues to subsist with Tautau and at her death her children assuming trusteeship of the trust whilst the successors of each child of Tautau acquired the beneficial interest of their parents under the trust; and

(iii) A declaration that the First Plaintiff, in being registered as the sole owner of the land in dispute in 1973, held the land in dispute as constructive trustee on trust for Tautau and her children and that both Plaintiffs now hold the land in dispute on trust as constructive trustees for Tautau and her children and have breached that trust; and

(iv) A declaration that the trust and equitable interests of Tautau and her heirs prevails over the legal interests of the Plaintiffs; and

(v) A declaration that the legal interest of the First Plaintiff acquired in 1973 did not and does not include a full power to convey the land; and

(vi) A declaration that the conveyance of an undivided half share in the land in dispute by the First Plaintiff to the Second Plaintiff in 2009 and the purported sale and conveyance of half of the disputed land to Ah Liki Construction Limited by the Plaintiffs in 2009 are inconsistent with the equitable interests of Tautau's heirs; and

(vii) An order that the Plaintiffs are estopped from selling the land to Ah Liki Construction Limited and from trying to evict the Defendants and the members of their families whom they represent in these proceedings from the land in dispute; and

(viii) An order that the ownership of the land in dispute vested with Tautau and her children from the time of their occupation of the land in dispute in or about the late 1950s; and/or

(ix) A declaration that Tautau's heirs, including the Defendants and the members of their families whom they represent in these proceedings, have had exclusive possession of the land in dispute against the Plaintiffs and the whole world for a period of not less than twelve (12) years and are entitled to the land in dispute by virtue of adverse possession; and

(x) A declaration that the Defendants have had exclusive possession of the land in dispute for a period of not less than twelve (12) years and are entitled to the land in dispute by virtue of adverse possession; and/or

(xi) A declaration that the First Plaintiff will be unjustly enriched by the retention of the house which he occupies on the land in dispute; and

(xii) An order that the Defendants and their families be compensated for any unjust enrichment retained by the First Plaintiff."

General

  1. The court accepts the evidence of the plaintiffs and their witnesses, in particular that of Leiloa and Mataipule (who have no direct interest in the outcome) in preference to that of the defendants and their witnesses.

Propriety Estoppel

  1. Tuilaepa was under no duty to reveal to others that he had become the registered proprietor of the disputed land. He had conducted the transaction through the Alii and Faipule of the village. He had forwarded the purchase price and registration costs to the appropriate member of the village. Tautau was certainly aware of the dealings stating the nature and import of the purchase in her letter to the Lands and Titles Office. Tuilaepa and Leiloa were both active in the public proceedings concerning the land and its status. There is no evidence that Tuilaepa kept secret his ownership or that he caused the defendants or members of their families to believe the land was held as 'family freehold land'.
  2. Following the letters of March 2006 and the subsequent withdrawal of the caveat, Tuilaepa and Leiloa agreed to meet to resolve the matter as between themselves as the surviving sons of Tautau.
  3. Propriety estoppel is an equitable remedy which operates as a representation or a promise as to future conduces including relations (Walton Stores (Interstate) Ltd v Maher (1984) 164 CLR 387). Estoppel in pais is now commonly regarded as including the overlapping equitable doctrines of proprietary estoppel and estoppel by acquiescence or encouragement (Legione v Hateley (1983) CLR 406 at 430). Estoppel in pais represents the coming together of differing equitable remedies (Foran v Wright [1989] HCA 51; (1989) 168 CLR 385; Liuvae v Samoa Credit League [1997] WSSC 13, 22 May 1997, Sapolu CJ). It is not subsumed within the general law based on unconscionability (Paul and Anor v Tuanai [1994] WSSC 15, 6 December 1994, Sapolu CJ).
  4. For the purpose of these proceedings this form of estoppel can be divided into two categories:
  5. Here the defendants claim that the erection and operation of the shop on the land to be sold was with the permission of the first plaintiff and comes within comes within the second category. However, they seek to deal with this issue by preventing the sale of the land. They make no claim of 'unjust enrichment' as has been done with the pleadings, paragraphs 68-70, concerning Tuilaepa and Asisiga's home.
  6. There had been no acquiescence by the plaintiffs to the erection of the shop or Tauileva's house on the land. Permission had been granted on a temporary basis and use of the shop was conditional on the provision of service to the family. Following Paluli's death, Teresa was requested to cease her operations. From 1978 it had been made quite clear that Tauileva and/or her children would be required to relocate. Only Leiloa and Tautau had been given permission to live permanently on the land. Leiloa has agreed to move his house to the rear section of the land. Only the front section of the land is to be sold.
  7. The plea of proprietary estoppel fails.

Constructive Trust

  1. Constructive trusts have been considered as a property institution or a remedial device since they are used in equity in widely different contexts and completely different ways. They have in common a means adopted by courts of equity to make persons accountable in circumstances where it would be inequitable for those persons to escape accountability. Constructive trusts are ones imposed by the courts irrespective of the actual, inferred or presumed intention of the parties in issue except where these is a common intention of contributors to property.
  2. The defendants claims that the court should, given;

construe a trust in their favour.


  1. They do not seek to limit the duration of the trust or define the intended beneficiaries. The trust, said to have been created, is that of 'family freehold title'. Such a trust would offend the Rule Against Perpetuities. At general law the 'perpetuity period' extends to the lifetimes of persons alive at the date of the creation of the trust and twenty-one years from the date of the death of the last survivor of those persons. On the defendants' case, the trust must be held for future generations and incapable of termination. Samoa has not enacted legislation specific to the Perpetuities and Accumulation Acts as found in other jurisdictions. It has provided for the interests of unborn or unascertained persons (The Trustee Act, section 45 (2)) presumably since the 'general law was understood and accepted'. Here the trust contended for offends the Rule Against Perpetuities. A more limited trust could be constructed. The defendants contend that at a time previous to 1963 (the date of the challenge to Tuilaepa's title), he held the land as trustee for Tautau and her descendants. If that be correct then any descendant of the children of Tautau would be entitled, subject to the time requirements stated above, to a beneficial interest in the impugned land (see generally: Equity and Trusts in Australia, Dalport and Chalmers, (3rd ed) 18.50-18.65). Neither has Samoa created, through statute or alteration to customary law a 'family freehold title'. Customary law recognizes a holding by title or through the Alii and Faipule.
  2. The court will consider the claim as that of a trust not offending the Rule Against Perpetuities.
  3. The court accepts that Tuilaepa purchased the land for a valuable consideration with no other intention than to hold it as his own. A family relationship creates no fiduciary duty.
  4. The recent history of the land was governed by the Samoan Acts and Ordinances passed thereunder (supra). It was transferred to the Alii and Faipule in 1969 and thence to Tuilaepa in 1973. There was no title specific to the defendants and their families in the history of the one acre allotment other than the adjoining customary land occupied by the family. Tautau herself lived on that land until her death in 1993.
  5. There are differing family oral histories concerning the land. The court prefers the direct testimony of Tuilaepa, Leiloa and Mataipule to those secondhand versions of Tiauli Taleni, Susana Moimoi and Faaulufalega Sakaria which stated the memories, beliefs or reconstructions of others. Paluli died in 2009 and their accounts of her beliefs and understandings could not be directly tested.
  6. The court accepts that permission was given to Tauileva Moimoi, Susana's mother to move her family onto the land in 1963 following the death of her husband but the permission was given to build a faleo'o e mapu iai as a temporary measure until she could make more permanent arrangements. That permission was extended in 1978 but only on a temporary basis or licence. The court accepts that shortly before his mother's death Tuilaepa requested Tauileva to relocate her home as the one acre allotment was too small compared to the extended family's customary land.
  7. The concessions made by the first plaintiff did not create or evidence a trust.
  8. The court accepts that Tuilaepa and Leiloa decided to bury their mother on the freehold land as a pige and did so against the wishes of others who sought burial at the aai of the village. Those graves can be relocated to the rear portion of the land in accordance with liu tofaga.
  9. The defendants do not deny that in early 2006 the first defendant and his brother Alema Taleni took their uncle to a lawyer's office and attempted to persuade him to assign the land to either Paluli or themselves. Taleni does not deny that in 2007 he attempted to persuade his uncle to mortgage the land to raise money for Taleni although permission was finally given for a mortgage over a one-quarter (¼) portion against a loan of $15,000. The proposition failed since the land had not been subdivided. Earlier Taleni had offered to purchase the land for the sum of $5,000 although he maintained at trial that the sum was for the addition of other homes at the deed rather than the removal of Tuilaepa's. They are strong evidentiary matters contrary to a trust.
  10. Paluli had wanted to build a house on the disputed land but was prevented from doing so by Leiloa. In 2005 she repeated the request for permission to build a house for her son Siaosi, which was further rejected by Leiloa. She had brought materials onto the land but was prevented from proceeding with the venture by Leiloa, a matter corroborated by their continued presence in 2006 when Tuilaepa and Asisiga arrived in Samoa.
  11. In 1995, Leiloa banished Susana and her sister Faafouina from the disputed land. Those matters confirm that Leiloa was acting in his brother's interests and with his authority.
  12. In 2000, Paluli raised the question of her daughter Teresa taking over the running of a shop on the front portion of the questioned land. A shop had been previously leased to the matai Tafili. Later, Leiloa agreed to Teresa's request because Paluli promised that the shop would look after Leiloa and his family. The original shop was dismantled and replaced by Teresa. That shop has not looked after Leiloa, his brother or sister-in-law. The original undertaking was broken and neither plaintiff is guilty of unconscionable conduct in requiring its removal.
  13. The defendants have not established the existence of a trust or a basis for its construction. As Deane J stated in Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583 at 613-4:

"The constructive trust shares, however, some of the institutionalized features of express and implied trust. It demands the staples ingredients of those trusts: subject matter, trustee, beneficiary (or, conceivably, purpose), and, personal obligation attaching to the property....Viewed in its modem context, the constructive trust can properly be described as a remedial institution which equity imposes regardless of actual or presumed agreement or intention (and subsequently protects) to preclude the retention or assertion of beneficial ownership of property to the extent that such retention or assertion would be contrary to equitable principle."


(see also: Liggett v Kensington [1993] 1 NZLR 257; Liuvae v Samoa Credit League (supra)).


Adverse Possession

  1. The defendants claim title by adverse possession both as against the plaintiffs and the whole world. At trial, their counsel conceded that they had no intention to evict the plaintiffs and Asisiga from the property. At best as I can understand the contention is that the plaintiffs' private titles are extinguished through limitation and replaced by a communal family title of which they are members. Again the membership of that group is neither defined nor limited. If the limitation is as against Tautau then the converse applies namely that her descendants other than the registered proprietors are barred.
  2. Adverse possession must be actual, open and manifest, exclusive and continuous (Public Trustee v Nose [2009] WSSC 70).
  3. Any family members who occupied the land and erected a building, e.g. the shop and a dwelling house did so by licence or permission (Fagalei Investment Ltd v Schmidt [2010] WSSC 78).
  4. No title was gained through adverse possession.

Unjust Enrichment

  1. Outside contract and tort there is a source of civil obligation of uncertain scope based on the idea of unjust enrichment. The principle has three components;
  2. Any sums recovered are not damages but are measured by the amount in gain. The source lies more with the law of restitution. As Lord Denning mused in Greenwood v Bennett 1972 3 All ER 586 at 589:

"We all remember the saying of Pollock CB 'One cleans another's shoes. What can the other do but put them on?' (Taylor v Laird [1856] EngR 648; (1856) 25 LJ Ex 329)."


  1. The term as pleaded by the defendants has been stated as 'autonomous unjust enrichment' (see: The All England Law Reports Annual Review 1992, 255-284; Annual Review (supra) 1994, 349ff). Lord Diplock defined the concept in Orakpo v Manson Investment Ltd [1977] 3 All ER 1, when he said at 7:

"...there is no general doctrine of unjust enrichment recognised in English law. What it does is to provide specific remedies of what might be classified as unjust enrichment in a legal system that is based on civil law."


  1. The English cases can be categorised under four bases;
  2. The Australian approach differs somewhat from that of the English cases which was defined by Deane J in Pavey and Matthews v Paul [1987] HCA 5; (1987) 69 ALR 577 at 604 as:

"...constitut(ing) a unifying legal concept which explains why the law recognises, in a variety of distinct categories of case as obligation on the part of a defendant to make restitution for a benefit derived at the expense of a plaintiff" (cf Lipkin Gorman (a firm) v Karpnale Ltd [1992] 4 All ER 331).


  1. In Public Trustee v Fokeni Brown WSSC unreported, Sapolu CJ preferred to follow the Canadian approach taken in Pettkus v Becker [1980] 2 SCR 834 which referred to the absence of any juristic reason for the enrichment which corresponds with the 'public policy' requirement.
  2. The defendants seek 'compensation' for unjust enrichment through the erection of the 'Mormon' house in which Tuilaepa and his wife reside. They plead:

"68. THE house which the First Plaintiff occupies and uses on the land in dispute was brought onto the land and renovated by the Defendants and their families at their own expense;


  1. THIS house is an enrichment to the First Plaintiff from which he has, does and will benefit to the detriment of the Defendants and their families.
  2. THERE is no juristic reason for the First Plaintiff to retain the enrichment."
  3. When Tuilaepa returned to Samoa in 2006, he initially stayed with family members, including Paluli. Tensions quickly mounted and eventually Tuilaepa and his wife built a small hut of 10 feet by 10 feet on his freehold land. Promises made by the extended family to help him in his retirement were not honoured and the condition and well-being of the couple neglected. The court accepts the evidence of Oliva Tuilaepa that it was Tuilaepa who approached the Bishop of the Church of the Latter Day Saints for assistance in their housing. The church gave a housing unit to Tuilaepa and his wife and initially to pay for the costs of relocation. Tiauli Taleni insisted that the family be responsible for the transfer and necessary modifications. The house was moved as a unit; Asisiga paid for the plumbing and Oliva for the electrical installation. The house remains but a modest dwelling.
  4. Accepting that the defendants paid for the transportation and the purchase of a few bags of concrete, it could not be said that Tuilaepa derived an unjust enrichment from the two defendants and their extended families.
  5. The same can be said of any claim, unpleaded, concerning Teresa's shop. It can readily be removed.
  6. This claim is dismissed.

Mistaken Belief

  1. There is no merit in this argument (EA Coxon Ltd v Public Trustee [2010] WSSC 5; Public Trustee v Silao [2010] WSSC 26).

The Second Plaintiff

  1. Oliva Tuilaepa is the son of Leiloa and the nephew of Tuilaepa, the surviving sons of Tautau. In 2006 Leiloa, who had stayed on the land and protected his brother's interest, was angered to receive the March 26 letter requiring him to quit the property. His anger was understandable. The caveat, lodged in that year was later withdrawn by Leiloa and the brothers left to reconcile and determine the issue. In February 2009, Tuilaepa instructed his lawyer, in the presence of the second plaintiff and his parents to transfer one half of the interest in the land to Oliva as a tenant in common. He gave as the reason, his love and indebtedness to his brother. Given Leiloa's age it was an appropriate course to take. On 6 February a deed of conveyance was executed stating as consideration 'the natural love and affection the donor has for the donee'.
  2. Oliva still regards the land as belonging to Tuilaepa but in reality it is Leiloa's bequest to his son.
  3. The defendants were angered by that disposition, an anger more intense when they discovered the intention to sell one half of the portion. That the family as a whole would benefit from the transaction was of little meaning.
  4. The second plaintiff does not hold the land subject to a constructive trust, propriety estoppel is not susceptible to a claim of adverse possession or has not been unjustly enriched at the defendants' expense.

Damages

  1. The plaintiffs claim general damages in the sum of $100,000. The defendants had rejected any reasonable compromise and have brought the order of ejectment on their own heads. Their conduct is relevant to the assessment of damages. The defendants have delayed the sale of portion of the land for over 12 months. They have prolonged and aggravated the damages by inciting or causing threats and violence to the surveyors from completing their task on three occasions. On the first two occasions in July and August 2009, they prevented the undertaking of any survey. On the third occasion they disobeyed an order of this court. The last interference ought best be dealt with through contempt proceedings and will not be considered in the assessment of damages. Both Susana and Faafouina conceded in cross-examination that it was Taleni who initiated and controlled the response to the survey. Stones were thrown at Tuilaepa's home, threats made against him and his wife and an attempt made to assault the latter.
  2. Damages are awarded for the tort of trespass in the following terms:

(1) General Damages $ 5,000

(2) Damages for continuing trespass and interest foregone $16,000

(3) Aggravated Damages $20,000

$41,000


Conclusion

  1. The defendants and members of their families have trespassed on land owned by the plaintiffs as tenants in common (Dive and Fly Samoa Limited v Schmidt and Anor [2005] WSSC 40).
  2. The plaintiffs are the registered proprietors and beneficial owners of the land registered in Volume 14 Folio 53 of the Land Register of Samoa.
  3. Neither plaintiff is guilty of unconscionable conduct.
  4. There has been no unjust enrichment of either plaintiff to the detriment of the defendants.
  5. Damages are assessed in the sum of $41,000.

DECLARATION AND ORDERS

  1. The court declares that the plaintiffs are the legal and equitable owners of the land registered in Volume 14 Folio 53 of the Land Register of Samoa.
  2. The court orders:

(JUSTICE SLICER)

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