Stowers v Stowers [2010] WSSC 30 (14 June 2010)

CP9/06

IN THE SUPREME COURT OF SAMOA
HELD AT MULINU’U

BETWEEN:

VAOITA STOWERS,
Domestic Duties,

ANETI STOWERS, MERCY STOWERS and PETER STOWERS JUNIOR,
her children, all of Fugalei near Apia.
Plaintiffs

AND:

MAKERITA STOWERS Widow,
and ALICE STOWERS.
First Defendants

AND:

PEPE CHRISTIAN FRUEAN
Chief Financial Officer, Vaiala
Second defendant

AND:

PUBLIC TRUSTEE
being a corporation sole under section 4 of the
Public Trust Office Act 1975.
Third defendant

Counsel: L T Malifa for plaintiffs
L R Schuster for first defendants
J S Brunt for second defendant
A Roma for third defendant

Judgment: 14 June 2010

JUDGMENT OF SAPOLU CJ

Background

1. The land (hereinafter referred to as "the disputed land") which is the subject of these proceedings is situated at Vaimea near Apia. It is just more than a quarter acre in area. It is described as follows:

"ALL that piece or parcel of land containing an area of one rood and seventeen point four perches (0a.1r.17.4p) more or less situated at Vaimea near Apia in the District of Tuamasaga described as Parcel 57, Flur IV and the same is more particularly delineated on Plan 14U/IVS deposited in the Office of the Director of Lands, Apia. Volume 7 Folio 213".

2. For present purposes, the disputed land originally belonged to one Aleki Toala Afoa who died intestate on 12 July 1948. The said Aleki Toala Afoa was survived by his son Peter Stowers who also died intestate on 12 February 1996 without realising his share under the estate of his late father.

3. By way of an election to administer granted on 3 December 1998, the Public Trustee, who is the third defendant in these proceedings, was appointed administrator of the estate of the said Aleki Toala Afoa. Then by order to administer granted on 17 February 2005, the Public Trustee was appointed administrator of the estate of Peter Stowers. It is in that capacity as administrator of the estate of Peter Stowers that the Public Trustee has been cited as third defendant in these proceedings.

4. The present dispute came about in this way. The said Peter Stowers married the first named first defendant Makerita Stowers on 30 June 1961 and they lived on the disputed land. They had no issue of their marriage. Then by order of adoption dated 7 February 1970 they legally adopted as their daughter the second named first defendant Alice Stowers. In or about 1968, Peter Stowers and Makerita Stowers separated and Makerita Stowers and Alice Stowers left the disputed land. However, the marriage between Peter Stowers and Makerita Stowers was never dissolved.

5. After Peter Stowers and the first named first defendant Makerita Stowers separated in 1968, Peter Stowers and the first named plaintiff Vaoita Stowers entered into a de facto union as husband and wife in 1970. They lived on the disputed land and from their union they have three children who are the other plaintiffs named in these proceedings.

6. On 16 March 1993, all three children of Peter Stowers and Vaoita Stowers were legally adopted by a couple in New Zealand in the hope that they will obtain a better life in New Zealand. It appears that for some reason Makerita Stowers children did not actually go to New Zealand. Then on 12 February 1996, Peter Stowers died intestate without having divorced his first wife, the first named first defendant Makerita Stowers. His de facto wife Vaoita Stowers and her children continued to live on the disputed land.

7. Sometime in 1996 or 1997, after Peter Stowers died, the first defendants Makerita Stowers and Alice Stowers returned to the disputed land and lived with Vaoita Stowers and her children in the same house.

8. On 3 December 1998, as already mentioned, the Public Trustee who is the third defendant was appointed administrator of the estate of Aleki Tuala Afoa, and on 17 February 2005, the Public Trustee was appointed administrator of the estate of the said Peter Stowers. The only asset of both estates is the disputed land.

9. In the process of the administration of both estates, the Public Trustee received a claim for entitlement to the estate of Peter Stowers from the first named plaintiff Vaoita Stowers as surviving de facto spouse of Peter Stowers. The Public Trustee also received a letter dated 20 April 2005 from the previous solicitor for the other plaintiffs as to whether these plaintiffs had any entitlement to the estate of Peter Stowers.

10. The Public Trustee then made inquiries from which he was satisfied that none of the plaintiffs had any entitlement to the estate of Peter Stowers for these reasons: (a) a marriage certificate shows that Peter Stowers was lawfully married to the first named first defendant Makerita Stowers, (b) there was no evidence that the said marriage had been dissolved, (c) the relationship between Peter Stowers and the first named plaintiff Vaoita Stowers was de facto in nature, (d) the other plaintiffs had been legally adopted by a couple in New Zealand on 16 March 1993, and (e) there was no evidence that the said adoption had been discharged.

11. The Public Trustee then advised the first named plaintiff Vaoita Stowers that Peter Stowers at the time of his death was still lawfully married to the first named first defendant Makerita Stowers whilst Vaoita Stowers union with Peter Stowers was de facto in nature. By letter dated 29 April 2005, the Public Trustee also advised the previous solicitor for the other plaintiffs that those plaintiffs have no entitlements under the estate of Peter Stowers as at the time Peter Stowers died those plaintiffs had been legally adopted out.

12. Then sometime in 2005, as it appears from the affidavit evidence of the second defendant, but it is not clear exactly when, the second defendant became interested in buying the disputed land. The second defendant must have learnt from someone that the disputed land was the subject of two estates, those of Peter Stowers and his father, which were being administered by the Public Trustee. He then approached the Public Trustee who identified the first defendants Makerita Stowers and Alice Stowers as the only surviving legitimate heirs of the estate of Peter Stowers.

13. The second defendant then met with the first defendants and the two parties reached an agreement for the second defendant to buy the disputed land at the price of $200,000. By letter dated 11 May 2005, the first defendants advised the Public Trustee of their agreement with the second defendant and requested the Public Trustee to convey the disputed land to the second defendant.

14. Then on 31 May 2005, those plaintiffs, who are the natural children of Peter Stowers who had been legally adopted out by order of adoption dated 16 March 1993, obtained from the District Court an order discharging that order of adoption. There is no evidence that the second defendant or the Public Trustee was aware that the adoption order granted on 16 March 1993 was discharged on 31 May 2005. However, it is clear that the said adoption order was discharged after the then solicitor for the relevant plaintiffs was given the letter dated 29 April 2005 from the Public Trustee advising him that those plaintiffs have no entitlements under the estate of Peter Stowers because they had been legally adopted out.

15. The Public Trustee, as administrator of the estates Peter Stowers and his father, by deed of conveyance dated 14 July 2005 conveyed the disputed land to the second defendant at the price of $200,000. That deed of conveyance was registered on 11 August 2005.

16. The second defendant then gave the disputed land as mortgage security to the bank from which he had obtained a loan to finance his purchase of the disputed land. When the deed of mortgage was submitted for registration at the land registry office, the plaintiffs who are the children of Peter Stowers who had been legally adopted out had lodged a caveat on 3 October 2005 against the title to the disputed land. After counsel for the second defendant filed an application on 4 July 2006 for removal of the caveat, the caveat was withdrawn.

17. Prior to the second defendant’s application for removal of the caveat filed on 4 July 2006, he had discovered in December 2005 that the first named plaintiff Vaoita Stowers and her family were the only remaining occupants on the disputed land, the first defendants had already vacated the land. By letter dated 7 December 2005, counsel for the defendant wrote to Vaoita Stowers giving her and her family one month’s notice to vacate the disputed land. That did not happen.

18. On 15 February 2006, the present second defendant as then plaintiff filed a statement of claim citing Vaoita Stowers as defendant seeking, inter alia, an eviction order and an order for possession of the disputed land. Vaoita Stowers filed a statement of defence and counterclaim on 10 July 2006 after somewhat prolonged attempts to reach an out of Court settlement. To the counterclaim, the second defendant as then plaintiff filed a statement of defence dated 12 July 2006. Then on 26 November 2006, Vaoita Stowers and her children filed a statement of claim as plaintiffs citing Makerita Stowers as first defendant and her daughter Alice Stowers as second defendant seeking compensation for improvements they claim to have made to the disputed land. To that statement of claim, the defendants filed a statement of defence on 5 February 2007. So at that point in time, there were two statements of claim, the first by the present second defendant citing Vaoita Stowers as defendant and the second by Vaoita Stowers and her children citing Makerita Stowers as first defendant and her daughter Alice Stowers as second defendant.

19. Vaoita Stowers and her children then changed counsel and solicitor and engaged Mr. Malifa their present counsel. In consequence, a new statement of claim pleading five separate causes of action was filed on 2 March 2009 citing Vaoita Stowers and her three children as plaintiffs, Makerita Stowers & Others as first defendants, Pepe Christian Fruean who had bought the disputed land as second defendant, and the Public Trustee as third defendant. To that statement of claim the first defendants filed a statement of defence on 14 July 2009, the second defendant filed a statement of defence and counterclaim on 25 June 2009, and the third defendant filed a statement of defence dated 29 May 2009. I must say here that the citation of the first defendants as Makerita Stowers & Others is not good pleading. The other first defendant Alice Stowers should have been cited by name.

20. By agreement of all counsel, the trial of these proceedings proceeded on the basis of the statement of claim filed by Vaoita Stowers and her three children on 2 March 2009 and the statements of defence filed in relation thereto as well as the related counterclaim by the present second defendant. It avoided what might have been great confusion.

The issues

21. A number of issues are raised in the statement of claim which are rather difficult to follow as a matter of law. The relevant issues may be stated as follows:

(a) Given that Peter Stowers died totally intestate, the question arises as to who is entitled to succeed to the disputed land which formed the only asset of his estate, the plaintiffs or the first defendants;

(b) If it is the first defendants who are entitled to succeed to the disputed land, should the plaintiffs be allowed compensation for improvements they claim to have made to the disputed land; and

(c) If the second defendant is a bona fide purchaser for value without notice of the disputed land from the third defendant, should the plaintiffs claim have any effect on the second defendant’s title to the disputed land.

The relevant law

(a) Section 44 Administration Act 1975

22. The relevant statutory provision for the purpose of determining whether it is the plaintiffs or the first defendants who were entitled to succeed to the disputed land which was the only asset of the estate of Peter Stowers is s.44 of the Administration Act 1975. Section 44, as far as relevant, provides:

"(1) Where any person dies intestate as to any real or personal estate, that estate shall be distributed in the manner or be held on the trusts mentioned in this section, namely:

(a) If the estate leaves a husband or wife, the surviving husband or wife shall take the personal chattels absolutely, and, in addition, the residue of the estate shall stand charged with the payment of a sum of $5,000 to the surviving husband or wife with interest thereon from the date of the death until paid or appropriated, at the rate of 5 percent per annum, and, subject to providing for that sum and the interest thereon, the residue of the estate shall be held:

(i) If the intestate leaves issue, in trust as to one-third for the surviving husband or wife absolutely and as to the other two-thirds on the statutory trusts for the issue of the intestate".

23. When Peter Stowers died intestate, as already mentioned, he was living in a de facto relationship with his wife the first named plaintiff Vaoita Stowers. Their children, who are the other plaintiffs had been legally adopted out. However, as it has also been mentioned, Peter Stowers at the time of his death was still lawfully married to the first named first defendant Makerita Stowers. The second named first defendant Alice Stowers is their lawfully adopted daughter.

24. In terms of s.44 of the Administration Act 1975, the question for determination is whether the term, "wife" used in that provision means a lawfully married wife or a de facto wife. Secondly, does the word "issue" in s.44 include the children of an intestate born out of lawful wedlock and who at the time of his death had been legally adopted out.

25. Prior to the enactment by the Samoan Parliament of the Administration Act 1975, the Administration Act 1952 (NZ) applied to Samoa. The Administration Act 1975 repealed the Administration Act 1952 (NZ) but adopted a number of the provisions of the New Zealand legislation. One of those provisions is s.56 which has been re-enacted as s.44 of the Administration Act 1975 with only a few minor modifications not material for present purposes. Like the Administration Act 1952 (NZ), the Administration Act 1975 does not define the terms "wife" and "issue". There is also no previous Samoan case cited by counsel where the meaning of those terms arose for determination. To throw some light on the meaning of those terms, counsel for the first defendants and the third defendant cited in their written submissions the case of Re O (deceased) [1975] 1 NZLR 444 where Mahon J said at p446:

"As already stated, Mrs H was still married to the deceased at the date of his death and she is the sole beneficiary of the estate by virtue of s.56 (1) (a) of the Administration Act 1952 which was in force at the date of death, whereunder the rights of ‘issue’ were limited to legitimate children except in the special case provided for by s.58 of mother and illegitimate child. Since 1 January 1970 illegitimate children qualify as ‘issue’ within the meaning of s.77 of the Administration Act 1969, but as at the date of death of the deceased his widow was the only person entitled as on the intestacy"

26. As it would appear from the passage cited from Re O (deceased) [1975] 1 NZLR 444, 446, the term "wife" used in s.56 (1) (a) of the Administration Act 1952 (NZ) refers to a married wife and the term "issue" used in the same provision refers to legitimate children. Section 56 (1) (a) of the Administration Act 1952 (NZ) which used to apply to Samoa is almost identical word for word to s.44 of our Administration Act 1975 which repealed and replaced the New Zealand Act. However, s.58 of the Administration Act 1952 (NZ) mentioned in the above passage cited from Re O (deceased) [1975] 1 NZLR 444, 446 was not re-enacted in the Administration Act 1975 and has no counterpart in our Act.

27. It should also be noted that we do not have a statutory provision like s.12 (2) of the Status of Children Act 1969 (NZ), mentioned in Re O (deceased) [1975] 1 NZLR 444, 445, which makes an illegitimate child qualify as "issue" within the meaning of s.77 of the Administration Act 1969 (NZ) that has replaced s.56 of the Administration Act 1952 (NZ).

28. As to the use of Court decisions in another jurisdiction on the interpretation of like legislation as an extrinsic aid to the interpretation of a legislation in our own jurisdiction, it is stated in Statutory Interpretation in Australia (1981) 2nd edn by DC Pearce at para [102] pp 77-78:

"There are also cases that refer to the approach to be adopted where an Act is passed by one parliament in similar form to that passed by another and there are decisions of appropriate Courts on the meaning of that other Act. The earlier Australian cases adopted an approach that was in line with the theory underlying the general rule referred to in [95] that re-enactment after interpretation is taken to constitute legislative approval of the interpretation. Where an Act was passed in Australia that was similar terms to, let us say, an English Act, then the legislature was to be assumed to know the judicial interpretation that has been placed on that Act by English Courts and to have intended that it should be followed in Australia...

"While English decisions on like legislation will, of course, not be disregarded, the reluctance to follow the re-enactment after interpretation rule and the growing independence of the Australian judiciary has resulted in a change of attitude. Judges are unwilling simply to follow English decisions on like legislation: see for example Humphreys v Smith; Ex parte Smith [1963] Qd R 67 (meaning of ‘obscene’). But this is not to say that interpretations in other jurisdictions are not looked at or indeed followed. However, it is with a different approach in mind. The Judges do not pursue the fiction that the legislative intended an interpretation to be followed but they do recognise that it is highly desirable that there should be some uniformity in decisions in different jurisdictions. So in Bitumen and Oil Refineries (Aust) Ltd v Commissioner for Government Transport [1955] HCA 1; (1954-1955) 92 CLR 200 we find the High Court saying at 211:"

"The provision under consideration [contribution between tortfeasors] has been transcribed from the English statute in a number of jurisdictions and it is highly convenient that it should be given the meaning and application which it has received in England".

29. Further on at para [102], the learned author of Statutory Interpretation in Australia (supra) said:

"So it would seem that there is a useful aid extrinsic to the statute under consideration that the Courts will use – decisions on like legislation in other jurisdictions. If the legislation is common to the jurisdictions, the Court may feel constrained to follow the interpretation adopted in the other jurisdiction".

30. Applying the above approach to statutory interpretation to this case, we have here the Administration Act 1952 (NZ) which used to apply to Samoa before it was repealed and replaced by our own Administration Act 1975. Both legislations deal with the same subject matter, namely, administration of the estates of deceased persons. The Administration Act 1975 is actually based on the Administration Act 1952 (NZ) and adopts a number of provisions of the New Zealand legislation. One of those provisions is s.56 (1) (a) of the Administration Act 1952 (NZ) which has been adopted as s.44 (1) (a) of our Administration Act 1975 almost word for word with a few minor modifications immaterial for present purposes. On that basis, I have decided to follow the comments on the meaning of the terms "wife" and "issue" used in s.56 (1) (a) of the Administration Act 1952 (NZ) as made by Mahon J in Re O (deceased) [1975] 1 NZLR 444, 446 as an extrinsic aid in the interpretation of the same terms as used in s.44 (1) (a) of our Administration Act 1975.

31. It follows that the term "wife" in s.44 (1) (a) of the Administration Act 1975 means a married wife and the term "issue" means a legitimate child. Whether the meaning of the term "wife" should be extended to include a de facto wife and the meaning of the term "issue" should be extended to include an illegitimate child is a matter for decision by the legislature. In this area of the law, such a decision would be best left to the legislature to make and not for the Courts to make. If the legislature decides to change s.44 of the Administration Act 1975, then amending legislation should be enacted as soon as it is convenient for Parliament.

(a) The Infants Ordinance 1961

32. If, contrary to the view I have expressed, the term "issue" in s.44 (1) (a) of the Administration Act 1975 includes an illegitimate child, then it is necessary to refer to s.10 of the Infants Ordinance 1961 regarding the effect of an order of adoption as the children of Peter Stowers and the first named plaintiff Vaoita Stowers from their de facto relationship had been legally adopted out at the time of the death of Peter Stowers. Section 10 of the Infants Ordinance 1961 is also referred to in the written submissions of counsel for the third defendant.

33. As far as relevant, s.10 (1) of the Infants Ordinance 1961 provides that an order of adoption shall confer the name of the adopting parent on the adopted infant together with such proper or Christian name as the Court may fix. Section 10 (1) then goes to provide:

"[The] adopted infant for all purposes civil and criminal and as regards all legal and equitable liabilities, rights, benefits, privileges, and consequences of the natural relation of parent and child shall be deemed in law to be the child born in lawful wedlock of the adopting parent".

34. Thus it is clear from s.10 (1) that the effect of an order of adoption is in law to make the adopted infant a child born in lawful wedlock of the adoptive parent.

35. Section 10 (2), which is the next relevant provision, then provides:

"Where such an order of adoption has been made the adopting parent shall for all purposes civil, criminal, or otherwise be deemed in law to be the parent of such adopted infant and be subject to all liabilities affecting such infant as if such infant had been born to such adopting parents in lawful wedlock and such order of adoption shall thereby terminate all the rights and legal responsibilities and incidents existing between the infant and his natural parents except the right of the infant to take property as heir or next of kin of his natural parents directly or by right of representation".

36. It would appear from s.10 (2) that the effect of an order of adoption is twofold. Firstly, the adopting parent would for all purposes be deemed in law to be the parent of the adopted infant and be subject to all liabilities affecting such infant as if such infant was born to the adopting parent in lawful wedlock. Secondly, the relationship between the adopted child and his natural parents is terminated and his natural parents cease to be his parents. It follows that in this case, when the children of Peter Stowers and Vaoita Stowers were legally adopted out, the parent-child relationship between them and their natural parents was terminated and their natural parents ceased to be their parents. The adopting parents became the parents of the adopted infants for all purposes as if the children were born to them in lawful wedlock.

37. However, the concluding words of s.10 (2) preserves "the right of an adopted infant to take property as heir or next of kin of his natural parents directly or by right of representation".

38. Section 10 of our Infants Ordinance 1961 is based on s.25 (5) and (6) of the General Laws Ordinance 1931 as amended by the Ordinances Amendment Ordinance 1955 which were both New Zealand Ordinances that used to apply to Samoa.

39. Of assistance in the interpretation of the concluding words of s.10 (2) of our Infants Ordinance 1961 is what is said in Family Law (1974) vol 2, NZ edn by Bromley and Webb where the learned authors discussed s.21 of the Infants Ordinance 1908 (NZ), the Infants Amendment Act 1950 (NZ) and s.16 (2) of the Adoption Act 1955 (NZ). At p.479, the learned authors said:

"In actual fact, the innovations which were made by the 1950 Act are repeated in s.16 (2) of the 1955 Act, the content of which has already been discussed. Accordingly one may legitimately state that there has been no change in the law in this context since the 1950 amending legislation. Thus, for example, under the pre-1950 law, an adopted child who was born in wedlock could take property as heir or next-of-kin of his natural parents directly or by representation, since s 21 (2) of the 1908 Act expressly preserved his right"

40. Thus under the relevant New Zealand legislative scheme, as it then existed, an adopted infant with the right to take property as heir or next of kin of his natural parents directly or by right of representation would be an adopted infant who was born in lawful wedlock. This would not apply to the children of Peter Stowers and Vaoita Stowers who were adopted out as they were not born in lawful wedlock because their parents were never married. Even though their adoption was later discharged nine years after the death of Peter Stowers, that did not alter the fact that they were not born in lawful wedlock to their natural parents.

41. It appears that what is said in Family Law (1974) vol 2, NZ edn by Bromley and Webb that an adopted infant who may take property as heir or next of kin of his natural parents directly or by right of representation is a child born in lawful wedlock to his natural parents is consistent with what is said in Re O (deceased) [1975] 1 NZLR 444, 446 by Mahon J that "issue" in terms of s.56 (1) (a) of the Administration Act 1952 (NZ) was limited to legitimate children. Section 56 (1) (a) as already pointed out is almost identical word for word to s.44 (1) (a) of our Administration Act 1975.

(c) Unjust enrichment

42. The plaintiffs claim for improvements which they say they had made to the disputed land should have been pleaded in unjust enrichment. As it should be clear from what has already been said, the plaintiffs cannot claim the full purchase price of the disputed land from the first defendants. Likewise, they cannot claim compensation from the Government if any part of the disputed land is taken for the public purchase of road-widening. In addition, they cannot claim the disputed land from the second defendant as he is a bona fide purchaser for value without notice as it will appear later in this judgment.

43. The elements of the cause of action for unjust enrichment has been expressed in various ways in judgments of this Court and the Court of Appeal. Most recently in Stanley v Vito [2010] WSCA 2, the Court of Appeal said:

"The three ingredients of a cause of action for unjust enrichment are (i) a benefit enjoyed by the recipient (ii) a corresponding deprivation on the part of the claimant and (iii) the absence of any juristic reason for the recipient to retain the benefit".

44. In relation to the determination of the value of the benefit enjoyed by the recipient in this type of case, Lord Cooke of Thorndon in Fiso v Reid [2002] WSCA 2 said:

"In the field of unjust enrichment a broad overall assessment may be the best that can be achieved, as both the Supreme Court and the Court of Appeal judgments recognise. It is often, and was in this case, necessary to stand back and look at the global award in the light of equity. An estimate on one head may be influenced by the amount of an estimate on another head; generosity in one part of the case may be tempered by conservatism in another part. Any advantages enjoyed by the claimant, such as the rent-free occupation here, have to be taken into account. In short, equitable compensation is not an exact science".

(d) Bona fide purchaser for value without notice

45. The second defendant raises as a defence that he is a bona fide purchaser for value without notice of the disputed land from the Public Trustee, the third defendant. The equitable doctrine of bona fide purchaser for value without notice was discussed at length and the relevant authorities cited in Ioane v Carter [2010] WSSC 14. I do not propose to repeat that discussion here and re-cite all those authorities.

46. It will be sufficient to point out that in equity as well as at law a bona fide purchaser for value without notice has ‘an absolute, unqualified, unanswerable defence’, to the claim of a person with a prior equitable interest in land: Pilcher v Rawlins [1872] UKLawRpCh 13; (1872) LR 7 Ch App 259 per James LJ at pp 268-269; Snell’s Equity (1990) 29th ed at p.47; Land Law in New Zealand (2003) vol 1 by Hinde, McMorland and Sim at paras 4.023 and 9.005 (e). The material time is the time that the purchaser paid over the purchase price for he must not have had notice of the other person’s prior equitable interest at that time: Pilcher v Rawlins [1872] UKLawRpCh 13; (1872) LR 7 Ch App 259 per Lord Hatherley LC at p.265; Taylor v Russell [1892] UKLawRpAC 13; [1892] AC 244 per Lord Herschell at p.253; Equity and Trusts in Australia and New Zealand (2000) 2nd ed b y Dal Pont and Chalmers at p.49.

Discussion

47. In view of the law as set out above, I have come to the view that until s.44 of the Administration Act 1975 which governs succession to any real and personal estate in the case of an intestacy is amended, the term "wife" in s.44 (1) (a) means a married wife and does not include a de facto wife. Likewise, the term "issue" in s.44 (1) (a) means a legitimate child born to his natural parents in lawful wedlock and does not include an illegitimate child. The reference in s.10 (2) of the Infants Ordinance 1961 to an adopted infant who may take property as heir or next kin of his natural parents directly or by right of representation also means a legitimate child born to his natural parents in lawful wedlock and does not include an illegitimate child.

48. It follows that the plaintiff Vaoita Stowers who was the de facto wife of Peter Stowers is not entitled to succeed to any part of the disputed land which formed the estate of Peter Stowers. Likewise, their children who would be illegitimate and had been legally adopted out at the time Peter Stowers died would not be entitled to succeed to the disputed land. Only the first defendant Makerita Stowers who was still the lawfully married wife of Peter Stowers at the time of his death will be eligible to succeed to the disputed land as well as their legally adopted daughter Alice Stowers, the other first defendant. The Public Trustee was therefore correct in deciding that the first defendants are the only surviving legitimate heirs of the estate of Peter Stowers in terms of s.44 (1) (a) of the Administration Act 1975.

49. In relation to equitable compensation on the basis of unjust enrichment, it cannot be the second defendant who has been enriched at the expense of the plaintiffs without any juristic reason for retaining the enrichment. It is difficult to see that the second defendant has been enriched at the expense of the plaintiffs when he had paid for the full purchase of the disputed land to the Public Trustee who was acting on behalf of the first defendants as successors to the estate of Peter Stowers who died intestate. In other words, if the disputed land included the improvements made to it by the plaintiffs, then the second defendant had paid for the full purchase price of the disputed land which includes those improvements. So the second defendant has not gained a benefit at the expense of the plaintiffs. But even if the second defendant has gained such a benefit, there is a juristic reason which justifies his retention of the benefit. That is, the second defendant is a bona fide purchaser for value without notice of any prior equitable interest of the plaintiffs in the disputed land.

50. As it appears from the evidence, the second defendant approached the Public Trustee sometime in 2005 and enquired about the disputed land. The Public Trustee advised the second defendant that the disputed land belonged to the estate of Peter Stowers and the only surviving legitimate heirs of the estate are the first defendants. The second defendant then met with the first defendants who agreed to sell the disputed land to the second defendant. The first defendants then advised the Public Trustee who conveyed the disputed land to the second defendant who paid the full purchase price. Up to that time, there is no evidence that the second defendant had any notice of any equitable interest of the plaintiffs in the disputed land.

51. If anyone has gained a benefit at the expense of the plaintiffs in this case, it is the first defendants who were paid the full purchase price of the disputed land including the improvements made by the plaintiffs to the disputed land. The difficulty here is that the evidence given by the plaintiffs about their improvements to the land is somewhat general and vague in parts.

52. The plaintiff Vaoita Stowers testified about the disputed land being swampy and how they had reclaimed it over the years that they have been staying on the land. She mentioned truckloads of dirt and soil as well as saw dust (pegu ili) and timber waste (pa’u laau) that they used for reclaiming the disputed land. She also mentioned that they had to provide cocoa beverage and pancakes for the workers who widened the public road in front of the disputed land and which helped to improve the swampy condition the disputed land was in.

53. I accept that the plaintiffs must have contributed to the reclamation of the disputed land over the years to make it a habitable place for them and Peter Stowers to live on. However, much of that reclamation must have been done at the expense of Peter Stowers rather than the plaintiffs. As I have already said, the evidence on this aspect of the case is somewhat general and vague in parts. Whilst I accept that the plaintiffs must have contributed to the improvement of the condition of the disputed land, the evidence given by Vaoita Stowers is obscure as to the contribution made by Peter Stowers himself to the improvement of the condition of the land. There is also no valuation evidence regarding the plaintiffs contribution to the improvement of the land. The evidence regarding the condition of the land when Vaoita Stowers first came onto to it is also somewhat general. She only said it was swampy. But it is not clear how swampy was the land and whether the whole or only part of it was swampy. It is also not clear about how many truckloads of soil, dirt, saw dust and timber waste were used for reclaiming the land.

54. Doing the best I can and applying a broad overall assessment approach as stated by Lord Cooke of Thorndon in Fiso v Reid [2002] WSCA 2, I will award $15,000 to the plaintiffs for their contribution to the improvement of the disputed land. This award in favour of the plaintiffs is made against the first defendants who have been paid the full purchase price of the disputed land.

Conclusions

55. From the foregoing discussion, these are the conclusions I have reached in these proceedings:

56.

(a) Except as stated in (b), the claims by the plaintiffs against the first, second and third defendants are dismissed.

(b) Compensation of $15,000 are awarded to the plaintiffs against the first defendants for improvements the plaintiffs claim to have made to the disputed land.

(c) The counterclaim by the second defendant against the plaintiffs succeeds and the plaintiffs are ordered to vacate the disputed land within six weeks and to yield up possession to the second defendant.

Counsel to file submissions as to costs in ten days.

CHIEF JUSTICE

Solicitors
Sogi Law for plaintiffs
L R Schuster for the first defendants
Bruntkeli for the second defendant
Fepuleai & Roma Law Firm for the third defendant