Stowers v Stowers [2010] WSSC 36 (15 July 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINU’U

BETWEEN:

THERESA TAUFAU STOWERS (a.k.a) TELESIA STOWERS
of Alafua, Samoa and Auckland, New Zealand.
Applicant

AND:

LISA STOWERS
of Alafua, Unemployed.
First respondent

AND:

TOLUONO FETI TOLUONO
of Vaitele
Second respondent

AND:

ATTORNEY GENERAL
for and on behalf of
MINISTRY OF NATURAL RESOURCES AND ENVIRONMENT
Third respondent

AND:

SAMOA COMMERCIAL BANK LIMITED,
a duly incorporated company carrying on banking business in Apia.
Fourth respondent

Counsel: A Roma for applicant
First respondent in person
R V Papalii for second and fourth respondents
A Lesa for third respondent

Conclusions: 30 June 2010
Judgment: 15 July 2010

JUDGMENT OF SAPOLU CJ

Nature of Proceedings

1. These proceedings are not concerned with a claim for damages so that I am not required to consider the question of damages. These proceedings are concerned with an application by the applicant for declaratory orders (a) to declare the deed of conveyance 13581c registered on 10 February 2005 from the first respondent to the second respondent invalid and void, (b) to declare the deed of mortgage registered on 17 March 2005 from the second respondent to the fourth respondent invalid and void, and (c) to declare the applicant the rightful owner of parcel 1851 being part of parcel 1528.
   

The evidence

2. The subject matter of these proceedings consists of four parcels of land all situated at Lotopa near Apia. Each parcel of land is just over a quarter of an acre in area so that the total area of all four parcels is just over one acre. For convenience, I will, hereinafter, refer to the said parcels of land as the disputed lands.
   
3. The disputed lands had formed part of the estate of one Michael Stowers deceased of Auckland, New Zealand. Michael Stowers died in Auckland on 22 July 1992. He left a will dated 6 October 1976 in which he appointed as sole executrix his wife Theresa Taufau Stowers of Auckland, New Zealand, who is the applicant in these proceedings. Probate of the said will was granted to the applicant as sole executrix by the High Court of New Zealand, Auckland registry, on 26 August 1992. The said probate was resealed in the Supreme Court of Samoa at Apia on 25 January 1993 and is registered under transmission no.768z.
   
4. Under his will, Michael Stowers devised the disputed lands to his wife. After probate of the will was resealed in the Supreme Court of Samoa and the transmission was registered, a deed of conveyance dated 16 June 1993 was executed by the applicant before a solicitor in Auckland. Under that deed of conveyance, the applicant as sole executrix of her late husband’s will, conveyed the disputed lands to herself as devisee under the will. This deed of conveyance was registered in the land registry office in Apia on 7 September 1993.
   
5. All of the information set out in paras 3 and 4 above is contained in the said deed of conveyance. I have set out that information in detail because the question of notice is an important issue in these proceedings as it was claimed on behalf of the second respondent that the second respondent is a bona fide purchaser for value without notice.
   
6. In December 2007, the applicant visited Samoa with one of her daughters with the intention to develop the disputed lands. They conducted a search with the land registry office in Apia and were shocked to discover the following: (a) the disputed lands were no longer registered under the name of the applicant but that of the second respondent by deed of conveyance 13581c dated 24 December 2004 and purportedly signed by the applicant before a solicitor in Apia; (b) the said deed was registered on 10 February 2005; (c) the purchase price of the disputed lands shown in the deed is $180,000; and (d) the disputed lands were mortgaged to the fourth respondent by the second respondent as security for a loan by virtue of a deed of mortgage registered on 17 February 2005.
   
7. The applicant in her evidence testified that she never signed a deed of conveyance before a solicitor in Samoa to transfer the disputed lands which had been registered under her name to the second respondent or authorised anyone to execute such a deed on her behalf. She then made inquiries, upon discovery of what had happened, within her family as she did not believe that any person other than a relative was responsible for the fraudulent conveyance. From the said inquiries, the applicant was made aware that (a) the first respondent who is married to a relative of her late husband had been in a relationship with the second respondent; (b) the first respondent had fraudulently signed the name of the applicant on the deed of conveyance which transfers the disputed lands to the second respondent; and (c) the transfer never involved payment of $180,000 as shown in the deed.
   
8. The first respondent, Lisa Stowers, who was not represented by counsel, admitted in her evidence to having fraudulently conveyed the disputed lands which belong to the applicant to the second respondent. She testified that she and the second respondent first met in 2002 at a dance which was held in one of the nightclubs in Apia. The second respondent asked her about her name and she told him it is Lisa. The second respondent also told her his name. At that time, the first respondent was a housekeeper at one of the hotels and the second respondent was the chief executive officer of one of the statutory corporations in Apia.
   
9. It is not clear whether it was at that first meeting or in one of the subsequent meetings between the first respondent and the second respondent that the first respondent told the second respondent that she and her husband had been separated for two years. The friendship that evolved between the first respondent and the second respondent led to an extra-marital affair between the two.
   
10. The first respondent further testified that in 2004, after two years of her relationship with the second respondent which started in 2002, she was asked by the second respondent whether her family has any lands. The first respondent believed that the reason why the second respondent asked her that question was because he knew that she is related to the Stowers family. She replied that her family has lands and they belong to her. The second respondent then suggested that they went to the land registry office to do a search of the lands. It was also the second respondent who pointed out the location of the land registry office. From the first respondent’s evidence, it appears she was not aware of the land registry office.
    
11. The first respondent and the second respondent then went separately to the land registry office. The first respondent arrived first and waited for the second respondent. When the second respondent arrived, they went to the top floor of the building where the land registry was located. They then did their search and certain documents were given to them. It is not clear from the evidence of the first respondent what those documents were as she does not seem to know what they were. However, under cross-examination by counsel for the applicant, the first respondent said that when the said documents were given to them, the second respondent asked her whether her name is Theresa and she lied to him that is so. The name of the registered owner of the disputed lands that appears in the land register as well as the relevant deed of conveyance is Theresa Taufau Stowers.
    
12. It also appears from the evidence of the first respondent that for the two years of her relationship with the second respondent from 2002 to 2004, she was known to the second respondent as Lisa which is her true name that she told the second respondent when they first met in 2002. The first time that the name Theresa came up was when they did a search of the disputed lands at the land registry office and the documents which were given to them show the name Theresa. The second respondent then asked the first respondent whether her name is Theresa and she lied to him that is so.
    
13. After the search at the land registry office, the second respondent paid for all the search fees and expenses and took all the said documents. The second respondent then suggested that they went to the office of his solicitor and pointed out the location of the said office to the first respondent. They went separately to the office of the second respondent’s solicitor. When the first respondent arrived at the said office, the second respondent was already there. There is some vagueness in the evidence as to how many times, whether it was three or four times, that the first respondent and the second respondent went to the office of the second respondent’s solicitor. However, the deed of conveyance that was subsequently prepared by the second respondent’s solicitor to transfer the disputed lands from the first respondent as Theresa Taufau Stowers to the second respondent shows the total price of the lands as $180,000. The first respondent strongly denied that the second respondent paid her $180,000 for the price of the said lands.
    
14. The first respondent also said in her evidence that the second respondent gave her monies for the said lands on different occasions. There was no one lump sum payment. She used some of that money to pay for her airfare to New Zealand towards the end of 2004 and some of it on her children. She also said that the second respondent also came to New Zealand and gave her some money whilst she was in New Zealand. The first respondent estimated that the total monies given to her for the said lands by the second respondent could not have been more than $20,000.
    
15. The first respondent also testified under cross-examination that she did not show a will to the second respondent as the second respondent deposes in his affidavit filed in these proceedings that he was shown a will by the first respondent to further induce him to buy the disputed lands from her.
    
16. I turn now to the evidence given by the second respondent. He does not dispute having met the first respondent for the first time in 2002 at a dance in a nightclub. He also does not deny that the first respondent told him that her name is Lisa and she had separated from her husband for two years. Furthermore, he confirms that the first respondent told him that the disputed lands belong to her and that she is the owner. However, the second respondent testified that he did not ask the first respondent whether her family has any lands; it was the first respondent who offered to sell him the disputed lands saying she is the owner. The second respondent further testified that the reason why the first respondent offered to sell to him the disputed lands was because she was in need of money for the upkeep of her children and family as she and her husband had separated.
    
17. The second respondent also said in his evidence that the price of the disputed lands was discussed between the first respondent and himself and they both agreed to the price of $180,000. He paid that amount by various instalments to the first respondent who gave him formal receipts from a receipt book but sometimes the first respondent gave him pieces of paper as receipts. However, the second respondent was not able to produce any of those receipts. These receipts were not mentioned by the first respondent during her evidence n chief and were not put to her during cross-examination so that she never had the opportunity to comment on these receipts whether she did issue such receipts to the second respondent. There is also no mention of any receipts in the affidavit filed by the second respondent in these proceedings before the trial. The first time there is any mention of these receipts was in the oral testimony of the second respondent which was given after the first respondent had given her evidence.
    
18. In the said affidavit by the second respondent, there is no mention that he had paid any monies for the disputed lands to the first respondent. What he says is that he paid the purchase price of $180,000 for the disputed lands directly to his solicitor. However, when counsel for the second defendant called the said solicitor to give evidence, he denied that the second defendant paid any $180,000 to him for the purchase price of the disputed lands. At the conclusion of the said solicitor’s evidence and before the second respondent took to the witness stand to give evidence, counsel for the second respondent made application on behalf of the second respondent to amend the said affidavit to read that the purchase price of $180,000 for the disputed lands was paid directly to the first respondent and not to the solicitor for the second respondent. So this amendment to the second respondent’s affidavit was only made after the affidavit was contradicted by the evidence of the second respondent’s own solicitor. The explanation given by the second respondent is that his affidavit was prepared in a rush the day before the trial started.
    
19. There is again an inconsistency between the evidence of the first respondent and the evidence of the second respondent as to how they went to the land registry office to do a search of the disputed lands. According to the evidence of the first respondent they went separately and when she arrived at where the land registry office is located, she had to wait for the second respondent to arrive. The second respondent on the other hand testified under cross-examination by counsel for the applicant that he went together with the first respondent to the land registry office. I accept the evidence of the first respondent on this point. For them to go together to the land registry during the day could have aroused suspicion about their relationship with some people, particularly as the land registry office was then located in the centre of Apia.
    
20. In his evidence, the second respondent did not deny that he pointed out the location of the land registry office to the first respondent. He said that when they arrived at the land registry office and did a search of the disputed lands, they found the name of Theresa Taufau Stowers in the records (faamaumauga). When he asked the first respondent as to who is Theresa Stowers, the first respondent replied it is she. The second respondent said that he had no suspicion about the true owner of the disputed land as he relied on his solicitor to do a proper search of the disputed lands to confirm all the relevant legal requirements. However, there is no evidence that the second respondent at any time asked the first respondent for the deed of the disputed lands to confirm that she is the real Theresa Taufau Stowers the true owner.
    
21. As to the will which the second respondent claims in his said affidavit to have been shown by the first respondent to him to further induce him to buy the said lands from her, the first respondent, as earlier mentioned, denied that she showed such a will to the second respondent. When the first respondent later cross-examined the second respondent about the will, the following was the question asked and the answer given:
    

Q. I did not give you a will transferring the lands to me from my husband. All that we did was we searched the documents pertaining to the lands which were given to you.
A. [The solicitor], the desire was to buy the land, the belief by the Stowers when they returned there.

22. As it would appear from the above, the question by the first respondent was clear and specific but the answer by the second respondent was vague and incomprehensible. Under cross-examination by counsel for the applicant, the second respondent said that the first respondent gave the will to his solicitor. When I questioned the second respondent about the will, he said it was him who gave the said will to his solicitor but he had not sufficiently investigated the will. However, the will transfers the disputed lands from "Herman" to Theresa Taufau Stowers which the second respondent said is the same person as herself. When I further asked the second respondent whether the will was that of Michael Stowers he replied perhaps that was the name. In fact Michael Stowers was the husband of the applicant who died in Auckland on 22 July 1992. When counsel for the applicant showed the second respondent the actual will by Michael Stowers in which the said lands are devised to his wife Theresa Taufau Stowers the present applicant and asked him whether that was the will shown to him, the second respondent said I cannot remember.
    
23. If, however, the second respondent is correct in his evidence that the second respondent had shown him a will to further induce him to buy the disputed lands from him, then that must have been the will of Michael Stowers. The problem here for the second respondent is that it is clear from the information contained in the will that the will does not apply to the first respondent so that the second respondent should have become immediately alerted to the fact that Lisa the first respondent is not the same person as Theresa Taufau Stowers mentioned in the will. If the will was given by the second respondent to his solicitor, then the solicitor should, upon reading the will, have also become immediately alerted to the fact that the first respondent is not the same person as Theresa Taufau Stowers named in the will. This is because the information contained in the will does not apply to the first respondent.
    
24. In any event, the said will is by one Michael Stowers deceased in which the disputed lands were devised by him to his wife Theresa Taufau Stowers. The first respondent had told the second respondent in 2002 that she and her husband had been separated for two years. There is no evidence that at any subsequent time had the first respondent told the second respondent that her husband had died. In fact there is no other evidence to show that the first respondent’s husband has died. As chief executive officer of a statutory corporation at the material time, I would expect the second respondent to be aware that a will only takes effect upon the death of its maker. Before that time, any land devised to a beneficiary under a will is still the property of the maker of the will. So if the first respondent had shown the said will with the name of Theresa Taufau Stowers to the second respondent and represented herself as Theresa Taufau Stowers, I would have expected that the first reaction or one of the first reactions of the second respondent was to ask the first respondent as to when her husband died. This is in order to make sure that the will has come into effect. However, the second respondent showed no such reaction. In fact in his evidence, the second respondent said that the reason why the first respondent offered to sell him the disputed lands was because she was in need of money for the upkeep of her children and family as she and her husband had separated. This does not suggest that the first respondent’s husband has died so that any will by him has come into effect. If anything, it suggests that the first respondent’s husband was still alive but separated from her.
    
25. When the second respondent’s solicitor gave evidence, he also made no mention of a will being given to him by the first or the second respondent as stated by the second respondent in his evidence.
    
26. It follows from what has been said that I accept the first respondent’s evidence that she did not show any will to the first respondent. The reference by the second respondent to a will alleged to have been shown to him by the first respondent to further induce him to buy the disputed lands from her seems to be an attempt to strengthen his claim to being a bona fide purchaser for value without notice without realising that it only weakens such a claim by reason of actual or constructive notice. It has, in any event, further affected the credibility and reliability of his evidence. This is because the Theresa Taufau Stowers described in the will as the devisee of the disputed lands cannot be the same person as Lisa the first respondent. The description of Theresa Taufau Stowers mentioned in the will does not fit the first respondent.
    
27. In relation to the search of the land register, I am satisfied from the first respondent’s evidence that she and the second respondent did a search of the land register and the documents obtained from that search were given to the second respondent who paid for the search fees and other expenses. It was not clear from the evidence of the first and the second respondents what those documents were. Those documents were then given by the second respondent to his solicitor. As earlier mentioned, the second respondent said he relied on his solicitor to do a proper search of the disputed lands to confirm all the legal requirements.
    
28. The principal land registry officer Filisita Ikenasio-Heather was called as a witness by the third respondent the Attorney General who should have been sued on behalf of the registrar of land and not on behalf of the Ministry of Natural Resources and Environment. Amongst the documents produced by the principal land registry officer were copies of the relevant pages of the land register and a copy of the deed of conveyance by which Theresa Taufau Stowers as the executrix of the will of her late husband Michael Stowers transferred to herself the disputed lands as devisee of those lands under her husband’s will. A copy of the said deed of conveyance is kept at the land registry office.
    
29. The first relevant entry on the pages of the land register that were produced, shows the registration of transmission 768z in relation to the estate of Michael Stowers of Auckland, New Zealand, formerly taxi proprietor, lately retired, deceased, to Theresa Taufau Stowers. The transmission was produced for registration on 27 May 1993.
    
30. There is no mention by the second respondent in his evidence whether he searched the land register when he and the first respondent went to the land registry office to do a search of the disputed lands. The reasonable inference to draw is that the second respondent did search the land register. I do not believe that the second respondent did not search the land register when it is obvious that the reason why he wanted to go to the land registry office must have been to search who holds the title to the disputed lands. Upon such a search, the second respondent could not have missed to notice the registration of the transmission in relation to the estate of Michael Stowers of Auckland, New Zealand, deceased, to Theresa Taufau Stowers. The second respondent also could not have missed seeing the notation on the land register that the transmission was produced on 27 May 1993.
    
31. The above information shows that the said lands were part of the estate of one Michael Stowers of Auckland, New Zealand, who has died, and he must have died prior to 27 May 1993 which was the date the transmission was produced to the land registry office. So Michael Stowers could not have been the husband of the first respondent because in 2002 when the first respondent and the second respondent first met, the husband of the first respondent was still alive but had been separated from her for two years.
    
32. The next relevant entry in the land register which immediately follows the first relevant entry just referred to above, is the registration of deed of conveyance 8115c from Theresa Taufau Stowers to Theresa Taufau Stowers which was produced to the land registry office on 7 September 1993. The same entry also refers to four parcel numbers and a plan.
    
33. The second respondent in his evidence did not mention that he searched the land register when he went with the first respondent to do a search of the disputed lands at the land registry office. He also made no mention that he noticed the entry in the land register regarding the registration of the deed of conveyance 8115c from Theresa Taufau Stowers to Theresa Taufau Stowers as devisee of the disputed lands under her late husband’s will. As I have already said, I do not believe that the second respondent did not search the land register when the obvious reason for him going to the land registry office was to find out who holds the title to the disputed lands. He said that from the search that was done, the owner of the said lands was found to be Theresa Taufau Stowers. That information must have come from the land register. It clearly suggests that the second respondent must have searched the land register. With respect, I also do not believe that it was the first respondent alone, who was only a hotel housekeeper who did the search.
    
34. When the second respondent was asked under cross examination by counsel for the applicant whether he discovered the name of the true owner of the disputed lands from the deed of conveyance he found during his search, the second respondent replied that there was no deed. This is inconsistent with the evidence of the principal land registry officer who produced a copy of the deed of conveyance 8115c which is kept at the land registry office. The only document which the second defendant mentioned under cross-examination to have obtained from the search is a copy of the scheme plan of the said lands. But such a document is hardly informative as to who is the owner of the said lands. I find it difficult to accept that the scheme plan is the only document that the second respondent saw during the search that was done. And I hope that the second respondent is not trying to avoid having seen the register and particularly the deed of conveyance 8115c in order to avoid being fixed with constructive notice of the fact that Lisa is not the same person as Theresa Taufau Stowers because of his defence of bona fide purchaser for value without notice. Any person looking at deed 8115c and is acquainted with the first respondent as the second respondent is, would not fail to see that Theresa Taufau Stowers mentioned in deed 8115c is not the same person as the first respondent.
    
35. The solicitor for the second respondent in his evidence testified that he also carried out a search of the disputed lands. In that search he checked the scheme plan, the survey plan and the registration of the said lands. This was done after the said solicitor had interviewed the first respondent and she said that she is the owner of the said lands.
    
36. The second respondent’s solicitor in his evidence in chief also testified that the second respondent did not give him a copy of the deed of conveyance. But there is no evidence that he ever asked the first respondent for the deed of the lands which she claims to belong to her. The second respondent’s solicitor also said in response to questions from counsel for the second respondent that he did not find a deed of conveyance during his search. It is not clear why the second respondent’s solicitor did not find a copy of the deed of conveyance during his search because it is clear from the evidence of the principal land registry officer who produced a copy of the deed of conveyance that the land registry office keeps a copy of the deed 8115c which is shown on the land register. There was also no evidence from the principal land registry officer that deed 8115c was ever removed from the custody of the land registry office at any time. The reasonable inference to draw is that deed 8115c was in the custody of the land registry office at all material times. I find as a fact that deed 8115c was at the land registry office at all material times.
    
37. A deed of conveyance was subsequently prepared by the solicitor for the second respondent to transfer the disputed lands to the second respondent. That deed is dated 24 December 2004 and was fraudulently signed by the first respondent as Theresa Taufau Stowers the vendor. This deed of conveyance was registered on 10 February 2005 as deed 13581c. Seven days later, the second respondent by deed of mortgage dated 17 February 2005 mortgaged the disputed lands to the Samoa Commercial Bank, the fourth respondent, as security for a loan by the construction company set up in 2003-2004 by the second respondent and his brother. The said deed of mortgage was registered on 17 March 2005.
    
38. The manager asset management and legal affairs of the fourth respondent was called as the only witness for the fourth respondent. In response to a question from counsel for the fourth respondent, who is also counsel for the second respondent, as to when the second respondent came to the fourth respondent for a loan, the said manager replied that the second respondent started to come to the fourth respondent for a loan in 2003 or 2004. However, it was not until the beginning of 2005 that a loan was granted to the second respondent with the disputed lands being used as mortgage security.
    
39. I am satisfied from the evidence of the said witness for the fourth respondent that when the fourth respondent granted the loan sought by the second respondent, the fourth respondent was acting bona fide without notice of any defect in the second respondent’s title to the disputed lands. Counsel for the applicant also decided not to cross-examine the fourth respondent’s witness.
    
40. It should also be noted here that even though the second respondent had testified that it was the first respondent who first offered to sell the disputed lands to him because she was in financial need, the evidence shows that the second respondent had wanted a loan in 2003 or 2004 from the fourth respondent for his construction company which was set up in 2003-2004 and he needed land as security for that loan. It was only when the disputed lands were offered by the second respondent as mortgage security at the beginning of 2005 that the said loan was granted by the fourth respondent. This evidence lends support to what the first respondent had said that it was the second respondent who first asked her in 2004 whether her family has any lands and that was the beginning of the dispute which has now ended up before the Court. It is contrary to the second respondent’s evidence that the issue regarding the disputed lands was first raised in 2004 by the first respondent who offered to sell the said lands to him as she was in financial need because her husband had left her and her children.
    
41. It is to be further noted that when the first and second respondents first met in 2002, the first respondent had already separated from her husband for two years. She must have been in need of money at that time to care for herself and her children. However, she did not touch the disputed lands. For the next two years from 2002 to 2004, the first respondent was still separated from her husband whilst at the same time having a relationship with the second respondent. During that time, she was still in financial need to care for herself and her children. However, she still did not touch the disputed lands. It was not until towards the end of 2004 when the second respondent was in need of a loan from the fourth respondent for his construction company and he needed land as security for that loan that the fraudulent transaction from the first respondent to the second respondent occurred. To my mind, the evidence in relation to this aspect of the case lends credibility to the evidence of the first respondent that it was the second respondent who first asked her regarding the disputed lands.
    

The essential facts

42. From the evidence I have discussed, the following is a narrative of the essential facts for ease of understanding.
    
43. The disputed lands which form the subject matter of these proceedings consists of four parcels of land with a total area of just over an acre situated at Lotopa and were owned by one Michael Stowers of Auckland, New Zealand. Michael Stowers died in Auckland in 1992 leaving a will under which he devised the said lands to his wife Theresa Taufau Stowers who is also the sole executrix of his will. The said Theresa Taufau Stowers is the applicant in these proceedings. Probate of the said will was granted in Auckland and then resealed in Apia where it is registered on the land register under transmission no.768z.
    
44. By deed of conveyance dated 16 June 1993, the applicant as executrix of her late husband’s will transferred the disputed lands to herself as devisee under the will. The said deed of conveyance was registered as deed 8115c on the land register in the land registry office in Apia on 7 September 1993. So the applicant became the registered owner of the disputed lands.
    
45. When the applicant visited Samoa in December 2007 and did a search of the land register she found that the disputed lands had been registered under the name of the second respondent pursuant to a deed of conveyance 13581c dated 24 December 2004 and registered on 10 February 2005. The said deed of conveyance was purportedly signed by someone as Theresa Taufau Stowers the vendor before a solicitor in Apia without the knowledge or authority of the applicant the true owner. The purchase price shown on the said deed is $180,000. The applicant also found from her search of the land register that the disputed lands had been mortgaged by the second respondent to the fourth respondent as security for a loan by virtue of a deed of mortgage dated 17 February 2005 and registered on 17 March 2005.
    
46. The applicant suspected that it must have been a relative of hers who was responsible for the fraudulent conveyance of the disputed lands to the second respondent. She made inquiries within her family and discovered that it was the first respondent who is married to a relative of her late husband who had fraudulently signed her name on the deed of conveyance which transfers the disputed lands to the second respondent.
    
47. What had happened was that the first respondent who was a housekeeper in one of the hotels met with the second respondent in 2002 at a dance in one of the nightclubs. The first respondent told the second respondent that her name is Lisa and the second respondent also gave his name to the first respondent. At that time, the second respondent was the chief executive officer in one of the statutory corporations. The first respondent also told the second respondent that she and her husband had been separated for two years. A friendship developed between the first respondent and the second respondent and they had an extra-marital affair. During all this time from 2002 to 2004, the first respondent was known to the second respondent as Lisa which is the second respondent’s true name.
    
48. In 2003 or 2004, the second respondent applied to the fourth respondent bank for a loan for a construction company which the second respondent and his brother had formed in 2003-2004. Security by way of real property was needed by the second respondent for that loan. The second respondent sometime in 2004 then asked the first respondent whether her family has any lands. The second respondent replied her family has lands and she lied to the second respondent that the said lands belong to her. At that time the first respondent who had been separated from her husband had been in need of money to take care of herself and her children. That fact must have been known to the second respondent as it appears from the evidence. The second respondent then suggested that they went to the land registry office to do a search of the said lands. There is no evidence that the second respondent at any time ever asked the first respondent for the deed of the lands she claimed to belong to her.
    
49. I am satisfied from the evidence that the search that was carried out included a search of the land register kept at the land registry office. I am also satisfied from the evidence that the second respondent was involved in the search of the land register.
    
50. The land register shows the registration of transmission 768z in relation to the estate of Michael Stowers of Auckland, New Zealand, deceased to Theresa Taufau Stowers and that the transmission was produced for registration on 27 May 1993. The same entry in the land register also refers to four parcel numbers and a plan. The second respondent did not ask to see the said deed of conveyance. He obtained only a copy of a scheme plan which hardly tells anyone about the true owner of any land. The second respondent, however, said that he relied on his solicitor to do a proper search of the disputed lands to confirm all the legal requirements.
    
51. During the search of the land register, the second respondent noticed the name of Theresa Taufau Stowers on the register. He asked the first respondent as to who is Theresa Taufau Stowers and the first respondent replied it is she. This is in spite of the fact that the first respondent had been known to the second respondent for two years as Lisa.
    
52. The first and second respondents then went to see the second respondent’s solicitor as required by the second respondent. When the second respondent’s solicitor interviewed the first respondent, she told him that she is Theresa Taufau Stowers which was of course a lie. The second respondent’s solicitor later carried out a search of the disputed lands at the land registry office. He checked the scheme plan, the survey plan and the registration of the disputed lands. Apparently, he did not check the transmission registered on the land register in respect of the estate of Michael Stowers deceased of Auckland, New Zealand, to Theresa Taufau Stowers. He also did not see the deed of conveyance from Theresa Taufau Stowers as executrix of the will of Michael Stowers deceased to Theresa Taufau Stowers as devisee of the disputed lands under the said will. As it appears from the evidence of the principal land registry officer, that deed of conveyance was in the custody of the land registry office at all material times. There is no evidence that the said deed of conveyance was removed from the land registry office at any time so that the reasonable inference to draw is that the said deed was in the custody of the land registry office at all times. It is also somewhat of a surprise that during all these dealings between the first respondent, the second respondent, and the solicitor for the second respondent there is no evidence that the second respondent or his solicitor asked the first respondent whether she had the deed of the said lands or to produce it to them.
    
53. Subsequently, the deed of conveyance 13581c dated 24 December 2004 was prepared by the second respondent’s solicitor and fraudulently executed by the first respondent as Theresa Taufau Stowers without the knowledge or authority of the applicant who is the real Theresa Taufau Stowers and the true owner of the disputed lands. That deed of conveyance was registered on 10 February 2005. Seven days later, the second respondent mortgaged the disputed lands to the fourth respondent as security for a loan by his construction company. This is evidenced by deed of mortgage dated 1 February 2005 and registered on 17 March 2005.
    
54. I am satisfied from the evidence that the fourth respondent is a bona fide mortgagee for value without notice of any defect in the second respondent’s title to the disputed lands.
    
55. I have also decided to accept the evidence given by the first respondent that no one lump sum payment was given to her by the second respondent for the purchase price of $180,000 of the disputed lands specified in the deed of conveyance 13581c which transferred the said lands to the second respondent. Only various sums of money were given to her at different times by the second respondent. In the first respondent’s estimate, the total amount of those various sums of money was about $20,000 or less; it could not have been more than $20,000.
    

The relevant law

56. The outcome of these proceedings turns on two issues. Firstly, whether the second respondent was a bona fide purchaser for value without notice and, secondly, whether the fourth respondent was a bona fide mortgagee for value without notice. Central to those issues is the doctrine of notice.
    

(a) Bona fide purchaser for value without notice.

57. The equitable doctrine of bona fide purchaser for value without notice was discussed by this Court in the recent case of Carter v Ioane [2010] WSSC 14 where it is stated at para 37:
    

"The equitable doctrine of bona fide purchaser for value without notice is usually raised in relation to interests in land where one person holds an equitable interest in land but another person subsequently acquires the legal estate in the same land in good faith for valuable consideration without notice of the prior equitable interest. In such a situation, the law has consistently maintained that the interest of the person who has acquired the legal estate in good faith for valuable consideration without notice prevails over that of the person with the prior equitable interest".

58. The often cited authority for the equitable doctrine that a bona fide purchaser for value without notice has ‘an absolute, unqualified, unanswerable defence’ to the claims of a person with a prior equitable interest is the judgment of James LJ in the English case of Pilcher v Ravelins [1872] UKLawRpCh 13; (1872) LR 7 Ch App 259, 268-269. This doctrine has already been adopted and followed by this Court in Taiene Paina v Public Trustee [2001] WSSC C 9, Meredith v Manoo [2002] WSSC 51 and Carter v Ioane [2010] WSSC 14. It needs to be borne in mind, however, that the doctrine applies where the legal estate has passed to a bona fide purchaser for value without notice.
    
59. As the requirement of ‘without notice’ is an integral part of the doctrine of bona fide purchaser for value without notice, it is important to understand the application of the doctrine of notice to the doctrine of bona fide purchaser. This is explained in The Principles of Equity (1996) ed by P Parkinson where it is stated at pp76-77:
    

"The question arises as to when notice of the earlier equitable interest will prevent the purchaser of the legal title taking free from that earlier interest....[Conceptually] there are three time stages when notice may be received by the purchaser of the legal estate of the existence of an earlier equitable interest. The first stage is before either the consideration or the legal title have been transferred. Clearly the doctrine does not apply and so the purchaser does not take a title free from the earlier equitable title if notice is received during this stage. The third time stage is after both the consideration and the legal title has been transferred. If notice is obtained at this stage, then the doctrine will clearly apply. The intermediate stage is the time between the payment of the consideration but before the transfer of the legal title. The question is, if notice is received in this second stage, whether the purchaser of the legal title acquires a title free of the earlier equitable title. Generally the purchaser who requires notice during the second time stage will defeat the equitable interest. The exception to this general rule depends on the nature of the earlier equitable interest. If the legal title to be transferred is that which a trustee holds and the equitable interest belongs to the beneficiary of that trust, and notice is received in this second stage, the purchaser takes the title subject to the equitable interest. If the purchaser pays the consideration and, prior to obtaining legal title, an equitable interest is created and then the purchaser obtains the legal title, the purchaser takes free of this equitable interest".

60. In Equity and Trusts in Australia and New Zealand (2000) 2nd by Dal Pont and Chalmers, the learned authors when dealing with how notice may affect the operation of the doctrine of bona fide purchaser for value without notice state at p 49:
    

"The purchaser must take the land without notice of any prior equitable interest. Notice will only operate to postpone a legal interest if it is communicated prior to the time consideration is furnished. If, however, a purchaser acquires notice after furnishing consideration, yet before obtaining legal title, her or his title will be taken unencumbered by any prior equitable interests provided the conveyance of the legal title is not a breach of trust. Notice of the purchaser may be actual, constructive or imputed".

61. Reference should also be made to the other statements of principle cited in Carter v Ioane [2010] WSSC 14 at paras 45 and 46 that a bona fide purchaser for value without notice has a complete defence against the claims of a person with a prior equitable interest provided he had no notice of such prior interest at the time he paid the purchase price, even if he had not yet obtained the legal title at that time.
    

(b) Bona fide mortgagee for value without notice

62. The equitable defence of bona fide purchaser for value without notice creates an exception to the common law maxim nemo dat quod non habet. It affords protection to a defendant who receives real property from a non-owner against a claim by the plaintiff who is the true owner. But the basis of the defence is that the defendant must have acted bona fide as purchaser for value without notice.
    
63. In Taiene Paina v Public Trustee [2001] WSSC 29 Vaai J held that the term "purchaser" includes a mortgagee. This must have been because of the definition of the term "purchaser" in s.2 of the Property Law Act 1952, which includes a mortgagee. It follows, according to Vaai J, that there is a defence of bona fide mortgagee for value without notice.
    
64. I accept that under our law of real property there is an equitable defence of bona fide mortgagee for value without notice. This affords protection to a defendant who lends money and receives land as mortgage security from a non-owner borrower against a claim by the true owner of the land who holds a mere equity. But the defendant must be a bona fide mortgagee of the legal estate in the mortgaged property for value without notice. If he is not, then he is not entitled to rely on this defence. This is the position under the deeds system. It also appears to be substantially the position under the Torrens system of registration of title. In Land Law in New Zealand (2003) vol 1 by Hinde, McMorland and Sim, the learned authors state at para 9.019:
    

"If registration has been obtained through the fraud of the registered proprietor or the fraud of the registered proprietor’s agent, the title is voidable at the suit of the person defrauded. For example, if a forger forges the signature of the registered proprietor of a parcel of land on a transfer of that land to the forger and then registers the transfer, the registered title is not indefeasible and the victim of the forgery (that is, the former registered proprietor) may recover possession of the land from the forger by virtue of s 63 (1) (c) of the Land Transfer Act 1952. But if the fraudulent person transfers or mortgages to a bona fide purchaser or mortgage for valuable consideration, the registered title of that bona fide purchaser or mortgagee is indefeasible".

65. Further on in Land Law in New Zealand (2003) vol 1 by Hinde, McMorland and Sim, the learned authors at para 9.020 refer to the Australian case of Heron v Broadbent [1919] NSWStRp 62; (1919) 20 SR (NSW) 101. In that case the plaintiffs, the Herons, were the registered proprietors of land in New South Wales. The defendant Broadbent forged transfers of the Herons’ land to himself and then handed the forged transfers to one Hussey as security for money which Broadbent owed to Hussey. Hussey took the transfers in good faith. It is then stated by the learned authors of Land Law in New Zealand (supra):
    

"Broadbent’s title, having been acquired by his own dishonest act in forging the transfer was, of course, impeachable for fraud – there was no dispute on that point. But there was no fraud on the part of Hussey: he had taken his mortgage in good faith for valuable consideration and was shielded by the protection of the purchasers section. Therefore no claim could be made by the Herons either against Hussey or against the subsequent owners of the mortgage. The result was that the fraudulent registration of Broadbent as proprietor could be set aside in favour of the former registered proprietors, but only subject to the mortgage".

66. We have now adopted the Torrens system of registration of title pursuant to the provisions of the Land Transfer Registration Act 2008. Section 35 of the Act provides protection for a bona fide purchaser or mortgagee for valuable consideration. The present case occurred before the Land Transfer Registration Act 2008 came into force. However, for the purpose of Samoan law, the defence of bona fide mortgagee of a legal estate for value without notice existed prior to the introduction of the Torrens system and applies to a mortgage under the deeds system.
    
67. If, however, I were to decide the dispute between the applicant as former registered owner of the disputed lands and the fourth respondent as a bona fide mortgagee for value without notice on the basis of the rules concerning priorities, I would hold that the interest of the fourth respondent takes priority over the applicant’s equity.
    
68. As already mentioned, the facts of this case occurred before the Land Transfer Registration Act 2008 while the deeds system of land registration was in operation. So the mortgage in this case was taken out under the deeds system. At the time the second respondent mortgaged the disputed lands to the fourth respondent, he was registered owner of the said lands. There was no other mortgage on the said lands. It follows that the mortgage between the second respondent and the fourth respondent was not an equitable but a legal mortgage. The legal estate in the disputed lands became vested in the fourth respondent as mortgagee. But the second respondent as mortgagor was entitled to redeem or obtain a reconveyance of the mortgaged property upon payment of the mortgaged debt. This is often referred to as the mortgagor’s equity of redemption. A mortgagor’s equity of redemption is an equitable interest: Land Law in New Zealand (2003) vol 1, para 4.017 Hinde, McMorland and Sim. The applicant, the former owner of the disputed lands, would have only a mere equity. Such an equity would, in the context of this case, consist of the right to set aside a deed of transfer for fraud: Latec Investments Ltd v Hotel Terrigal Pty Ltd [1965] HCA 17, per Kitto J at para 9; per Taylor J at para 3; per Menzies J at para 4. Citing Latec Investments LTD v Hotel Terrigal Pty Ltd, the learned authors of Land Law in New Zealand (supra) state at para 9.005 (g):
    

"A mere equity is ‘an equitable right which falls short of an equitable interest in land’. Examples of mere equities are: a right to set aside a transfer obtained by fraud or undue influence...’ The significance of the distinction between an equitable interest and a mere equity is that a bona fide purchaser for value of an equitable interest must take subject to all prior equitable interests whether such purchaser had notice of them or not, but will take free from mere equities unless he or she had notice of them when he or she took the assignment".

In Equity and Trusts in Australia and New Zealand (2000) 2nd ed by Dal Pont and Chalmers, the learned authors state at p.46:

"[The] distinction between mere equities and equitable interests arises chiefly in the context of priorities. Few difficulties arise where a prior equitable interest competes with a later mere equity – the first in time rule applies. However, it would appear to be established that a prior mere equity will be postponed to a later equitable interest acquired bona fide without notice of it because the latter is said to be the better equity. In other words, the defence of bona fide purchaser for value without notice is available by the owner of the equitable interest against the owner of the prior equity".

69. In terms of the above statements of principle, and given that this is a mortgage under the deeds system, the fourth respondent as mortgagee of the disputed lands which were unencumbered would be vested with the legal estate in the said lands. The second respondent who mortgaged the said lands to the fourth respondent would have only an equity of redemption which is an equitable interest. The applicant who has been defrauded of the said lands would have only a mere equity, that is to say, a right to set aside a transfer obtained by fraud. The question for determination is whether the legal estate vested in the fourth respondent as mortgagee takes priority over the applicant’s mere equity. On the authorities I have cited, I conclude that the legal estate vested in the fourth respondent as bona fide mortgagee for value without notice takes priority over the mere equity held by the applicant.
    
70. All in all then, I am of the view that under the deeds system a bona fide mortgagee of the legal estate for valuable consideration without notice has a complete defence against the claims of person with a prior mere equity. Alternatively, if I were to decide the dispute between the applicant and the fourth respondent on the basis of the rules concerning priorities, I would hold that the legal estate vested in a mortgagee for value without notice takes priority over a prior mere equity.
    

(c) Doctrine of notice

71. The doctrine of notice is at the heart of equity. It is central to the well known doctrine of bona fide purchaser for value without notice and to the less known doctrine of bona fide mortgagee for value without notice. There are three types of notice under the doctrine of notice. These are actual, constructive, and imputed notice. These three types of notice are explained in Equity and Trusts in Australia and New Zealand (2000) 2nd ed by Dal Pont and Chalmers where the learned authors state at p.49:
    

"Actual notice is actual knowledge of the facts. A rumour is sufficient to constitute actual notice if its source is someone who has an actual interest in the property. Vague rumours are insufficient, though it appears clear that relevant information obtained from third parties cannot be ignored. Constructive notice consists of that knowledge which would have come to a person’s attention had he or she made the inquiries which a reasonably prudent person would have made in the circumstances. A person has imputed notice of those facts that her or his agent has acquired in the particular transaction at hand, whether actual or constructive, such notice being imputed thereto. However, notice of one joint tenant will not be imputed to another".

72. As constructive notice is the most relevant to this case, I refer to Equity Doctrines and Remedies (1984) 2nd ed by Meagher, Gummow and Lehane where the learned authors state at para 854, p.244:
    

"A person is deemed to have constructive notice of all matters (a) of which he would have received notice if he had made the investigations usually made in similar transactions, and (b) of which he would have received notice had he investigated a relevant fact which has come to his notice and into which a reasonable man ought to have inquired. It follows that all cases in which a person is said to have constructive notice of a fact or thing are cases in which he has failed to inquire, either sufficiently or at all. The criterion of whether a total failure to make inquiries will affect a person with constructive notice is whether he has neglected to do that which is usually done by men of business in similar circumstances, as a matter of prudence with a view to their own security. It covers not only the case where there has been a deliberate abstention from inquiry in order to avoid possible notice, but on the view expressed in Ashburner on Equity 2nd ed pp61-2, all other cases in which, intentionally or otherwise, a person abstains from inquiry in circumstances where a reasonable man would inquire".

73. Further on in Equity Doctrines and Remedies (supra), the learned authors state at para 854, p 245:
    

"In ordinary conveyancing practice it is fairly clearly established that notice of the existence of a document constitutes notice of its contents, but it is unclear to what extent this operates in some spheres of company law".

74. Moreover, in Equity Doctrines and Remedies (supra), the learned authors state at para 856, p 246:
    

"It is but rarely that a purchaser neglects to inquire at all. The usual case where the doctrine of constructive notice is called into play involves circumstances where the purchaser has inquired, but has not inquired sufficiently. Any purchaser who, in the course of his inquiries, received notice of a relevant fact is affected with notice of all other relevant facts which he could have discovered by further proper investigation...If a purchaser learns that his vendor is not in possession of the title deeds to the property to be sold, and if he does not inquire sufficiently or at all about their whereabouts, he will be affected by constructive notice of the rights of any person who possesses them. It was laid down in Hewitt v Loosemore [1851] EngR 952; (1851) 9 Hare 449 at 458; [1851] EngR 952; 68 ER 586 at 590 that if he inquired and received an explanation of their absence, he will not have constructive notice of any outstanding equities if the explanation was reasonable and he accepts it; if unreasonable, and he abstains from further inquiries, he will be affected by notice. If a purchaser has notice of a deed, he has constructive notice of its contents if it necessarily affects the title, but not if the deed might or might not do so and he, on inquiry, is informed that it does not".

75. In Snell’s Equity (1990) 29th ed, the learned authors, in relation to constructive notice, state at p 54:
    

"A purchaser ought to require not only an abstract of the vendor’s title to be delivered, but also production of the title deeds. If he neglects to call for them, or is put off by an excuse for their non-production which would not have been acted upon by a prudent man without an attempt at verification, and it turns out that the deeds are in the possession of an equitable mortgagee, the purchaser will take subject to the mortgage....But the mere absence of the title deeds has never been held sufficient of itself to affect a purchaser with notice if he has bona fide inquired for the deeds and a reasonable excuse has been given for their non-production, for the Court cannot in such a case impute to the purchaser either fraud or negligence".

76. I have referred to some of the authorities on the doctrine of notice, and in particular constructive notice, at some length because the facts of this case occurred in 2004 and 2005 under the deeds system of registration. However, under the Torrens system of registration of title introduced by the Land Transfer Registration Act 2008, protection is afforded to a purchaser or mortgagee against the operation of the doctrine of notice unless he has been guilty of fraud: Land Law in New Zealand (2003) vol 1 by Hinde, McMorland and Sim at para 4.024. Also see s.35 of the Land Transfer Registration Act 2008.
    

Discussion

77. Applying the above statements of principle on constructive notice to the facts of this case, it is clear that when the second respondent asked the first respondent in 2004 whether her family has any lands and the first respondent said yes and that the lands belong to her, the second respondent never asked for the deed to the said lands so that the first respondent did not produce any deed. However, as it appears from Snell’s Equity (1990) 29th ed at p54, a purchaser ought to require production of the title deeds from the vendor. In other words, the second respondent did not inquire of the first respondent at all about the deed to the lands she claimed to belong to her. Whether such failure to inquire was deliberate or not, the second respondent would be affected with constructive notice of the rights of the person in possession of the deed: Equity Doctrines and Remedies (supra) para 856, p246; Snell’s Equity (1990) 29th ed p54. The person who was in possession of the deed in this case would most probably have been the applicant the true owner of the disputed lands.
    
78. Instead of asking the first respondent, who claimed to be the owner of the disputed lands, about the deed to the said lands, the second respondent asked the first respondent to go with him to make a search of the lands at the land registry office. I am satisfied from the evidence that what was searched by the first and second respondents at the land registry office was the land register. The second respondent must have noticed the name Theresa Taufau Stowers on the register because he asked the first respondent as to who is Theresa. The first respondent replied it is she which was a lie. The second respondent made no further inquiries of the first respondent even though for two years he had known her as Lisa and not as Theresa.
    
79. The second respondent must also have noticed on the land register the registration of transmission 768z in relation to the estate of Michael Stowers of Auckland, New Zealand, deceased, to Theresa Taufau Stowers and that that transmission was produced for registration on 27 May 1993. However, he made no further inquiries about the transmission. If he had done so, I am confident he would have discovered that Theresa Taufau Stowers whose name appears on the register is the wife of Michael Stowers deceased who must have died prior to 27 May 1993, the date on which the transmission was produced for registration. That should have reminded the second respondent that when he met the first respondent in 2002, the first respondent told him that she had been separated from her husband for two years which suggests that by 2002 the husband of the first respondent was still alive. So the first respondent could not have been the same person as Theresa Taufau Stowers whose husband died prior to 27 May 1993.
    
80. The second respondent must also have noticed on the land register the registration of deed of conveyance 8115c from Theresa Taufau Stowers to Theresa Taufau Stowers which was produced for registration on 7 September 1993 and the reference to parcel numbers. However, there is no evidence that the second respondent asked for the deed or made any further inquiries about it. The evidence given by the principal land registry officer shows that deed of conveyance 8115c was in the custody of the land registry office at all times. If the second respondent had asked for the said deed he would have seen from the deed that Theresa Taufau Stowers mentioned in the deed could not have been the same person as the first respondent. The description of Theresa Taufau Stowers given in the deed does not fit the first respondent. That should have shown to the second respondent that what the first respondent had told him that she is Theresa Taufau Stowers was not true.
    
81. As it is stated in Equity Doctrines and Remedies (1984) 2nd ed by Meagher, Gummow and Lehane at para 854, p244, "all cases in which a person is said to have constructive notice of a fact or thing are cases in which he has failed to inquire either sufficiently or at all". This "covers not only the case where there has been a deliberate abstention from inquiry in order to avoid possible notice...but all other cases in which, intentionally or otherwise, a person abstains from inquiry in circumstances where a reasonable man would inquire". This notion of constructive notice is succinctly put in Equity and Trusts in Australia and New Zealand (2000) 2nd ed by Dal Pont and Chalmers where it is stated at p49: "Constructive notice consists of that knowledge which would have come to a person’s attention had he or she made the inquiries which a reasonable prudent person would have made in circumstances".
    
82. Furthermore, in Equity Doctrines and Remedies (supra) it is stated at para 854, p245 that in ordinary conveyancing practice "notice of the existence of a document constitutes notice of its contents". And at para 856, p246 of the same text it is there stated: "Any purchaser who, in the course of his inquiries, received notice of a relevant fact is affected with notice of all other relevant facts which he could have discovered by further proper investigation...If a purchaser learns that his vendor is not in possession of the title deeds to the property to be sold, and if he does not inquire sufficiently or at all about their whereabouts, he will be affected by the rights of any person who possesses them...If a purchaser has notice of a deed, he has constructive notice of its contents if it necessarily affects the title, but not if the deed might or might not do so and he, on inquiry, is informed that it does not".
    
83. In Snell’s Equity (1990) 29th ed it is stated at p54 in relation to constructive notice that a purchaser ought to require production of the title deeds but "the mere absence of the title deeds has never been held sufficient of itself to affect a purchaser with notice if he has bona fide inquired for the deeds and a reasonable excuse has been given for their non-production".
    
84. It appears from the requirements of constructive notice that it is not sufficient for a purchaser to be honest, he also has to be diligent. If he is not diligent and fails to make inquiries in circumstances where a reasonable prudent person would have done so, he would be fixed with constructive notice.
    
85. On the basis of the above statements of principle, I am satisfied that the second respondent had constructive notice of the contents of transmission 768z and deed 8115c which appear on the land register. The contents of those documents would have shown to the second respondent that the first respondent was not the applicant Theresa Taufau Stowers the true owner of the disputed lands. It follows that the second respondent had constructive notice that the first respondent was not Theresa Taufau Stowers. It follows that the second respondent’s defence of bona fide purchaser for value without notice cannot succeed. It is therefore not necessary to deal with the bona fide or good faith requirement of the defence and whether there is in fact such a separate requirement.
    
86. I have also considered the evidence in relation to the search of the land register carried out by the second respondent’s solicitor who was an agent for the second respondent. I am satisfied that the second respondent’s solicitor had constructive notice of the contents of transmission 768z and deed 8115c. Such constructive notice would be imputed to the second respondent as principal. It follows that the second respondent also had imputed notice of the contents of transmission 7682 and deed 8115c. On that basis, his defence of bona fide purchaser for value without notice would also have failed.
    
87. In respect of the fourth respondent, I am satisfied from the evidence in this regard that it is a bona fide mortgagee of the legal estate in the disputed lands for value without notice and therefore has a complete defence to any claim by the applicant. If, however, the matter needs to be decided on the basis of the rules concerning priorities, then the legal estate in the disputed lands which was acquired by the fourth respondent as a bona fide mortgagee for value without notice takes priority over the applicant’s mere equity, that is to say, the applicant’s right to set aside the mortgage because of the fraud by other parties of which the fourth respondent had no notice. In other words, the applicant’s mere equity is subject to the fourth respondent’s interest as bona fide mortgagee for value without notice.
    

Conclusions

88. For all the foregoing reasons, I have come to the following conclusions:
    

i. The deed of conveyance registered on 10 February 2005 from the first respondent to the second respondent is declared void for fraud.

ii. I will not grant the declaratory order sought by the applicant to have the deed of mortgage registered on 17 March 2005 from the second respondent to the fourth respondent declared void for fraud; and

iii. It is declared that the applicant is the rightful owner of the disputed lands but her right of ownership is subject to the interest of the fourth respondent as a bona fide mortgagee for value without notice.

89. Counsel to file submissions as to costs in 14 days.
    

CHIEF JUSTICE

Solicitors
Fepuleai & Roma Law Firm
R V Papalii Law for second and fourth respondents
Office of the Attorney General for the third respondent