Chan Tung v Anaua [2010] WSSC 70 (28 May 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

CP 202/03

BETWEEN:

HARRY CHAN TUNG, Businessman of Pesega.
Plaintiff

AND:

AMOSA ANAUA, married man and SILIA ANAUA his wife of Vaitele-uta.
Defendants

Counsels: Ms LV Tamati for the plaintiff
Ms FV Hoglund for the defendants

Judgment: 28 May 2010

JUDGMENT OF NELSON J.

[1] This litigation is a little unusual. The plaintiff is a businessman and planter and at one time operated fishing vessels. The defendants son worked on one of the vessels and in or about March 1997 he died while working thereon. At that time the defendants were employed by the plaintiff and were with his consent occupying a quarter-acre parcel of freehold land situated at Vaitele belonging to the plaintiff. There is a dispute as to whether the land was orally gifted by the plaintiff to the defendants as compensation for the loss of his son as claimed by the defendants or whether as claimed by the plaintiff, the land was to be given to them once they and the plaintiff together paid off the balance of the plaintiffs loan which was secured against the land. But whatever the case may be, it is common ground the defendants son was with the consent of the plaintiff buried on the property.

[2] In 2003 the second named defendant passed away and without the plaintiffs consent and against his wishes, she was buried on the land by the first named defendant. The plaintiff consequently brought proceedings to evict the defendant and his family and to remove the two graves from the property. The defendant has defended the action and filed a counterclaim seeking specific performance of what he said was a 1997 oral agreement to transfer the land to him and his family. Those proceedings were adjourned sine die in 2004 and the defendant travelled overseas in 2005 to visit family leaving his children residing on the land. In 2006, the lending bank foreclosed on its security, the property was sold and the defendants family were evicted. There still remains on the property as of the date of hearing the graves of the defendants wife and son.

[3] In 2007, two further things happened. Firstly, the plaintiff discontinued his action against the defendant and secondly, the defendant amended his counterclaim against the plaintiff by restricting it to a claim for damages for breach of the contract to gift the land. Defence counsel in her submissions said that is because the plaintiff is no longer the registered owner of the property and an order of specific performance to transfer the land would therefore be pointless. The defendant accordingly seeks "equitable damages as a substitute and/or alternative to specific performance". What consequently remains for adjudication in this case is the defendants counterclaim.

[4] At the outset, as the second named defendant is deceased, the counterclaim by her as against the plaintiff is discontinued leaving her husband as the sole remaining defendant. As the facts in this matter are very much in dispute, I move firstly to consider the evidence and determine therefrom whether a cause of action in equity based on the contract to gift the land has accrued to the defendant. A determination of the facts would also be crucial to the issue of limitation and any question of the application of the equitable doctrine of laches.

The plaintiffs version:

[5] The plaintiff said he returned to Samoa in 1991 and set up business as a planter and farmer of among other things pigs and chickens. The defendant and his children were employed by him for many years. Originally the family lived behind his fathers shop at Vaimoso but for reasons not relevant to this matter they needed another place to reside. As they were good workers and he had a vacant quarter acre property next to him at Vaitele, he offered that property for the defendant and his family to live on. He says he provided materials for them to build a Samoan fale and this was confirmed by the defendant to a large extent in his evidence. The Samoan fale was subsequently replaced by a larger European style house built by the defendant for approximately $4,000 tala, a dwelling which the defendant agreed was not by any standards luxurious.

[6] Before 1997 there was no suggestion the land in question would be purchased or otherwise acquired by the defendant and as far as the plaintiff was concerned the occupational arrangement was temporary. In 1997 however the defendants son Aisoli who worked on the plaintiffs fishing boat died while attempting to swim ashore from the vessel which had become stranded on a sandbar seaward of the village of Vaiala in Apia. Aisoli was caught in a notorious rip in that area and tragically drowned. Although it was no ones fault, the plaintiff obviously felt responsible as the young boys employer for what had happened. The evidence is he helped the defendants through what was a difficult time and he says he paid for most of the funeral expenses including the coffin and the grave for the young man as well as funeral expenses, matters which he estimated cost him over $10,000 tala. A significant figure even by todays standards.

[7] The defendant originally denied the extent of the plaintiffs contributions to the funeral but eventually in cross-examination accepted that the contribution was substantial. The plaintiff also no doubt out of the same sense of responsibility for the familys loss agreed for the son to be buried on the quarter acre parcel but he says it was on the condition that the defendant and his children help pay off the bank loan on the property following which the property would then be conveyed to Aisolis son. At this time the loan balance on the property had reduced from the original $80,000 to some $26,000 tala and the plaintiffs evidence was that if the defendant and his children made a reasonable contribution to repayment of the loan balance, he was happy for that to be the consideration for the transfer of the land to Aisoli's son which was his preference or to the defendant and his family. He says this discussion was held at the defendants house and further that the defendant and his wife at that stage gave no firm answer to the proposal until some time later when they returned with a counterproposal that since they would be paying off the loan that the land be put in the name of their son Talavou who was the highest paid earner in the family and who was capable of making the largest contribution from his wages. Talavou like the other children of the defendant also worked for the plaintiff and this was a choice that the plaintiff supported.

[8] It appears however that this transaction was never finally resolved before the previously happy relationship between the parties began to deteriorate. The main cause of unhappiness was the plaintiff's laying off of another son of the defendants named Aukuso together with some other employees for theft of eggs from his chicken farm. The plaintiff explained to the defendants he could not discriminate between the other employees and the defendants child and he was therefore standing the son down for a time as a lesson. It is clear from the testimony that I have heard that the defendants wife was most unhappy with this decision. Following this, no one of the family came to work and this disappointed the plaintiff who consequently called a meeting with the family at his house at Vaitele. Present at that meeting were the defendant, his wife and all their children. He said that at that meeting he reminded them of the arrangement concerning the land and made it clear that if the loan was not paid the land could not eventually become theirs. However nothing concrete eventuated and the plaintiff said by this time their relationship was going downhill. He was having problems with the defendants wife who seemed to regard herself as the head of the family although she was not even one of his employees only a temporary housekeeper.

[9] Shortly thereafter the plaintiff moved residence from Vaitele to Fugalei and as nothing was happening he called another meeting with the defendant who attended at his Fugalei residence with his wife. Also at the meeting was the plaintiffs own wife. The plaintiffs evidence was he was not concerned with them continuing to work for him but for them to find the money to help pay off the bank loan. They then indicated to him they were hoping to raise funds through sale of a music CD recorded by the defendant and his children, part of the proceeds of which would be applied towards the loan.

[10] However this too did not eventuate and he called a further meeting at Fugalei with the defendant and his wife and advised them the bank was now requiring payments of at least $1,000 per month. He further advised them that if they cannot pay, another option would be for them to move to another piece of land owned by Samoa Land Corporation (SLC) that he had paid a deposit upon and they could take over the payments of approximately $1,200 per year on that property and have that put in their name instead and release the Vaitele quarter-acre. The plaintiff said he did this because he was concerned about the effect non-payment to the bank of the loan was having on his business reputation.

[11] At the request of the defendants husband they inspected this land and the only question the defendant had was if his son could be re-interred onto the land. He told the defendant to ask Samoa Land Corporation because until the land is paid they remain the owners of the property. Still nothing further happened leading to another meeting with the defendants where he explained that if they did not shift to the new land the bank would repossess the Vaitele property and evict them. There was however no further meetings as it became clear to the plaintiff the defendants were not heeding his proposals or requests and shortly thereafter the defendants wife died and these proceedings were launched.

[12] In cross examination the plaintiff denied he had agreed to transfer the land outright to the defendants family as compensation for Aisoli's death. He also testified that bank savings books were opened in the names of the defendant and his children into which deductions from their salaries were made for the loan payments but these were constantly used for faalavelaves and when no one returned to work he returned the savings books to the defendants family.

[13] The plaintiffs wife gave evidence in support of her husband as to the meetings with the defendant and his family over the period 1999 to 2001. She confirmed her husband constantly reminded the family of the arrangement to pay off the bank loan but acknowledged that she was not present at every meeting. She also confirmed they stopped coming to work around the year 2000 when Aukuso was stood down by the plaintiff.

[14] Also testifying in support of the plaintiff was one Ms. Pai Tuilaepa, a neighbour of the plaintiff at Vaitele from 1998 to 2001. She testified about an occasion when she was doing work beside her boundary fence with the plaintiffs house when she overheard the defendant, his wife and the plaintiff talking. She heard the plaintiff advise the couple that Aukuso had been laid off with other employees for stealing eggs from the chicken farm. One week or so later she witnessed another meeting between the plaintiff and the defendant and his children arising from the fact that the defendant and the children were not turning up for work. Her attention was drawn to it because the plaintiff was angry and was speaking loudly complaining about payments to the bank and none of the children working. She was at that time employed by the plaintiff part-time in his house and was standing very close to where this discussion was being held. She thinks these events occurred some time during the year 1999.

The defendants evidence:

[15] The defendants witnesses consisted of himself and his son Anaua who was present at the initial meeting with the plaintiff. The defendants evidence was that in or about 1992 his family moved from Salamumu to Vaimoso and he and his son worked for the plaintiff on his Tapatapao plantation and farms while some of his boys worked on the plaintiffs fishing vessels. In or about 1996 the plaintiff rewarded their dedication and hard work by offering them the quarter acre at Vaitele to live on. Initially they built a fale on the property which was later replaced by the European style "faleapa" that has been previously referred to.

[16] In March 1997, Aisoli died while serving as a crew member on the plaintiffs fishing vessel and he testified that a few days later the plaintiff came to his house and spoke to him and his wife. His sons were also present at this meeting. He said that the plaintiff apologized for their loss and said he had no money to give them as compensation but offered them instead the land that they were occupying. He said they accepted it and their agreement was confirmed during a visit by the plaintiff the following day. That is why Aisoli was buried on the land otherwise he would have been buried elsewhere, either in Vaimoso or Salamumu.

[17] He rejected completely the plaintiffs evidence as to the terms of acquisition of the land and as to any agreement to deduct monies from their salaries for payment of the bank loan. But he accepted that before his wife died he went with the plaintiff and viewed another piece of land at Nu'u that the plaintiff wanted them to shift to and that he was told they would have to pay off the balance of the purchase price of that land. But he refused this "offer" saying to the plaintiff that "e leai se tagata e oti fa'alua" (no one dies twice).

[18] In 2003, his wife passed away and she was buried next to Aisoli. He said that police officers sent by the plaintiff came to stop her burial that day but he told them of his agreement with the plaintiff and they left. He also asked them to tell the plaintiff to come and talk but the plaintiff never turned up. Subsequently he left for overseas after these proceedings were filed and was shocked to be told by his children residing on the land that the bank had taken possession and evicted the family from the property. The land is now in the hands of other owners but his wife and sons graves still remain thereon. He says that they have incurred costs in removing their structures and houses from the land and will incur more in relocating the graves.

[19] For this action he seeks half a million tala in damages for the plaintiffs breach of contract but apart from the relocation costs, he does not provide any other particulars of the damage he says he has suffered. Presumably he also seeks to found an equitable claim on the loss of opportunity to own the land.

[20] The defendants support witness was one of his sons who was allegedly present when the promise to convey the land to the defendant and his family was made. This is the witness Anaua Amosa. No other children of the defendant who were allegedly present were called and this witness confirmed his fathers evidence that the plaintiff gave them the land because he had no money to give them as compensation.

Discussion:

[21] The court has heard the witnessess evidence and because of the head on conflict of the testimony, I carefully observed their demeanor and answers in cross examination. I have also reviewed the evidence with the assistance of the transcript and I must say that I have problems with the evidence of the defendant. Generally his answers in cross examination were evasive, unconvincing and self-effacing. In my observation of him I would say he was an unimpressive witness and was less than honest when it suited his purposes. A classic example of this is his cross examination on the issue of the plaintiffs contributions to his son's funeral; see pages 11-13 of his evidence where only after prolonged questioning did he finally concede that the plaintiff had paid for the coffin, the grave and some funeral expenses and that this was in keeping with the customary norms of this country for such an occasion and the plaintiffs status as an employer of a good, hard working employee who has limited or insufficient funds, suddenly confronted by a faalavelave.

[22] There are other problem areas in the defendants evidence. For example, he was aware the land was registered to the plaintiff, he said so in paragraph 4 of his affidavit produced into evidence and in paragraph 25 he said his understanding was the plaintiff would sign over the land as he promised. But his testimony also was that he never requested the land deeds and told his wife off when she did. Furthermore he did nothing about attempting to obtain these deeds until the plaintiff sued him in 2003 following his wifes death. But for that act of God he would have still been doing nothing to enforce the plaintiffs so called promise to convey the land to him and his children.

[23] Similarly in relation to his testimony about the bank mortgage. At one stage in cross examination he said he knew of the mortgage in 1997; see pages 5-7 of the transcript. He chopped and changed his answers several times but if the court is to accept that he knew of the mortgage in 1997 or at least at some other time before the 2006 eviction by the bank, his evidence was that he did nothing about the loan to the bank. He took no steps to pay it or even to inquire about it from the plaintiff or from the bank. Instead he claims he was "shocked and dismayed" (paragraph 39 of his affidavit) when informed by his children in 2006 that the bank had taken possession of the land and evicted his family. Surely what else would he expect to follow from his inactivity and a failure to pay the loan? I do not believe that the plaintiff is so uninformed or naïve that he would have done nothing about such matters given their importance to him and his family.

[24] I am also puzzled as to the actions of Aisolis wife and child. The defendants evidence was that one year post death, the wife left the land relinquishing her rights in favour of the defendant and his wife. If the land was truly the price of her husbands life, I find it hard to accept she would so willingly depart the property without taking any steps to ensure some benefit or part of it would derive to her child. There may well have been legitimate reasons for her leaving but that was not what the defendant had testified to.

[25] I also note that there are areas of the defendants evidence where he agreed with the plaintiff. For example the evidence as to the bank savings books, the plaintiff said that they were for the payments towards the bank loan. The defendant agreed in cross examination such bank books existed but maintained they were done by the plaintiff "mo le lumanai o a'u ma le fanau" (for the future of myself and my children). This is a notion that is consistent with the evidence of the plaintiff as to the purpose of the bank books.

[26] There are other areas where the defendants evidence does not make sense. For example, his testimony in paragraph 35 of the affidavit about police officers trying to stop the wifes burial. If he is correct in his allegation, why would the plaintiff send police officers to do this? The most plausible explanation is the plaintiff did it because the property had not been promised to the defendant at all to do with as he pleased and again refer paragraph 32 of his affidavit, if the plaintiff agreed to give them the land why would he try and move them to an alternative property without the remains of the dead son?

[27] The evidence of the defendant is in my judgment not credible. He is asking the court to believe that a man who had no money to compensate him for his sons loss and then give him his land instead still had sufficient funds to pay for the cost of the sons coffin, grave and other funeral expenses. The defendants credibility is not boosted by the evidence of his son who was the only child called as a witness.

[28] I prefer instead the evidence of the plaintiff and his wife as corroborated by the nosy neighbour with the big ears. Having seen the plaintiff testify, I formed the clear view he is a careful and capable businessman who to put it bluntly would not be foolish enough to give away anything for nothing. His account of the transaction and the basis thereof is far more believable and I find it to be the true facts of this sorry saga. If anyone was damaged by a breach of contract in this matter, it was the plaintiff who because of the defendants failure to uphold their end of the bargain and attend to payment of the bank loan, resulted in the loss of that property to the plaintiff.

[29] In a counterclaim, the defendant becomes a plaintiff and the burden of proof is on him to establish the facts supporting his claim. Such facts have to be established on a balance of probabilities. He has not done so in this case and he has not proved to the required standard that there was a promise made that equity requires to be enforced or failing that, which equitable principles say should be the subject of compensation because of its breach.

[30] A subsidiary problem with the defendants counterclaim is the lack of quantification of the damage he is alleged to have suffered as a result of the broken promise. Apart from the costs of removal of structures and relocation of graves, neither of which was the subject of any specific dollar evidence, it is unclear what other damage the defendant suffered which may be compensatable. It must also be remembered that he and his family had the free and unencumbered use of the plaintiffs Vaitele property for almost a decade while they were in occupation thereof.

[31] The counterclaim in this matter fails, it must be dismissed. Judgment will be entered in favour of the plaintiff on the counterclaim and the plaintiff is entitled reasonable costs on the counterclaim. If counsel cannot agree on the issue of costs, the matter can be brought back to me for determination.

[32] Finally my thanks to counsels for their diligently researched submissions on the issues of law that were raised by the court. These would have been fully considered had the matter required to proceed to that stage.

JUSTICE NELSON