Tuimavave v Lemana [2010] WSSC 98 (13 August 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

JANET MARIA TUIMAVAVE (nee ROPATI) Retired of Auckland, New Zealand, Proprietress of the freehold land at Moamoa, near Apia.
Plaintiff

AND:

MAAVE LEMANA sued on her behalf and on behalf of her family members presently occupying the freehold land at Moamoa, near, Apia
Defendant

Counsel: Fotu Hoglund-Vaai for the plaintiff
TRS Toailoa for the defendant

Decision: 13 August 2010

DECISION OF THE COURT

Introduction

1. The plaintiff a 70 year old widow is the registered proprietor of a 1 acre parcel of land (the land) at Moamoa, being the residue of her inheritance from the estate of her late father. Her late husband passed away at Auckland New Zealand in 1996 where they have been living since 1977 with their 13 children. To finance the family's migration to New Zealand the plaintiff subdivided and sold part of her inheritance leaving the residue, the land, the subject of this action. When the plaintiff and her family moved to New Zealand the land had a two storey building erected on it which has since been damaged by the two cyclones in the early 1990s.

2. The defendant is also a 70 year old widow; a sister in law of the plaintiff, sister of the husband of the plaintiff. Her husband who died in 1997 served as Roman Catholic Catechist in a number of villages in Samoa. The defendant's father also served as a Roman Catholic Catechist until he retired in 1964 and later died in 1965.

The Land

3. The plaintiff, her husband, her mother and their children were living in the two storey building on the land in 1964 when they were joined by the defendants parents, (parents in law of the plaintiff), upon their retirement from the church ministry. The plaintiff's mother borrowed monies from the defendant's father before and during 1964, and to repay the borrowed money, the plaintiff's mother agreed to sell to the defendant's father part of her land, across the road, opposite the two storey building. How much money was agreed upon as the price of the land and how much money was given to the plaintiff's mother is unknown.

4. When the defendant's father died in 1965, the defendant's mother continued to live with the plaintiff on the land, whilst the defendant and her husband entered the Catholic Theological College. One of the defendant's brother Lino, his wife and children also lived with the plaintiff.

5. As a result of a dispute between the plaintiff's mother and one of the defendant's brother in 1965 the plaintiff's mother terminated the land deal and told the defendant's mother and brother to find some other land to buy. Defendant's mother was also removed from the land and taken to the defendant at the Theological College to be looked after by the defendant.

6. But the disagreement was soon patched up, and the defendant's mother returned to the land to live with the plaintiff and her family until she died in 1974. In 1977 the plaintiff and her family migrated to New Zealand leaving her daughter Bella and husband on the land. Bella and family moved to NZ in 1978 and Siaosi and Pauga Terry (Terry) moved onto the land into the two storey house as pre-arranged with the plaintiff.

7. About 1987 or 1988 the defendant's children with the consent of the plaintiff moved into the two storey building after Terry moved out. Cyclone Ofa in 1990 damaged the two storey building and the defendant requested the plaintiff through the plaintiff's husband for monies to do the repairs. Three thousand tala ($3,000) was remitted. In 1991 Cyclone Valerie severely damaged the house. A request by the defendant through the plaintiff's husband for monies to repair the house was declined by the plaintiff. Without the knowledge of the plaintiff, the defendant, with the assistance of her brothers in the United States of America, erected a new building on the foundation of the two storey building.

8. The plaintiff's husband died in 1996. The defendant's husband died in 1997 and from then on the defendant moved onto the land where she is currently living up to now.

The Plaintiff's claim

9. The plaintiff wants the defendant and her family to leave the land, but because they refused to leave, the plaintiff is seeking an eviction order which the defendant is resisting.

10. The plaintiff through her affidavit and oral testimony told the court she succumbed to pressure from her husband to allow the defendant's children to live on the land in 1987 or 1988. The request by the defendant to place her children on the land was made to the plaintiff's husband when he visited Samoa in or about 1987 or 1988.

11. In the same year, the defendant offered through the plaintiff's husband to buy part of the land for eight thousand tala ($8,000) which was rejected by the plaintiff. At the time the defendant and her husband were out in one of the village as Roman Catholic Catechist. As she had no land, and no home to move to after her husband's death in 1997, the defendant moved onto and resided with her children on the land. Her request to bury her husband on the land was declined by the plaintiff.

12. In 2001 the defendant saw the plaintiff at Auckland New Zealand and again offered to buy the land which was again denied. This was followed by a letter dated 12th May 2003 from the plaintiff to the defendant impressing on the defendant to look for somewhere to move to and to vacate the land.

The Defendant's Defence and counterclaim

13. It is contended by the defendant that in 1963 while her parents were Catechist at Leulumoega parish the plaintiff's mother started to borrow cash from her father. Before the defendant's father retirement in 1964 the plaintiff's mother offered part of her land in return for the monies she borrowed.

14. It is not disputed that after the defendant's father's death, the plaintiff's mother terminated the agreement and it appears that the monies she borrowed and given to her for the land were not refunded to the defendant, or defendant's mother. The defendant contended that the plaintiff, in the presence of the defendant and her mother pointed out to them the northern end of her land as a gift to them. Defendant's brother Lino then built a house on the land gifted by the plaintiff. The gift was to compensate the defendant, her mother and brothers for the monies paid to the plaintiff's mother for a piece of land.

15. Whilst the defendant and her husband were serving as Catechist at the Luatuanuu village on or about 1972 or 1973 the defendant was sent for by the plaintiff who told her she wanted to sell the piece of land originally pointed out for her family and she would allocate them in substitution the southern end of the land next to the two storey building. The defendant responded that she will have to consult her mother and brothers.

16. It was then agreed that the piece of land to the southern end will be conveyed to the defendant and her brother Sanele and an agreement for the sale was signed before the Real Estate Agent in Apia by the plaintiff, the defendant and Sanele for the transfer of part of the land to the south of the two storey building.

17. A brother of the defendant Pepe Tuimavave told the court that when he left for America in 1962 he had already heard about the arrangement concerning the land sale between his father and the plaintiff's mother. He also subsequently heard about the deal concerning the plaintiff's land. To assist in compensating the plaintiff for her land, the defendant's brothers in America sent two second hand vehicles and bought or paid US$8,000 for a vehicle purchased in Samoa for the plaintiff and her husband while the defendant's mother was still alive and before the plaintiff and family moved to NZ.

18. The defendant's children moved onto the land in 1987 after the plaintiff's husband's trip to Samoa and when the house was damaged by cyclone Ofa in 1990 the $3,000 sent by the plaintiff was not sufficient to complete the repairs, and US$3,000 was sent by the defendant's brothers to complete the repairs.

19. Cyclone Val in February 1991 completely damaged the house and the defendant's request to the plaintiff through her husband for repair costs was denied. They were told to seek assistance from America which they did and they built a house where the old two storey house stood.

20. After the funeral of the plaintiff's husband in 1996, the defendant said, she and her brother reminded the plaintiff about the land for them, and the plaintiff responded to the effect she has not forgotten.

21. In 2002 the defendant said she and her brothers met with the plaintiff in Auckland New Zealand. They reminded the plaintiff about the monies paid by their parents to the plaintiff's mother and wanted to forget what transpired and what monies were paid but for the plaintiff to state a price for her land. Her usual response was she has not forgotten, the defendant can continue to live on the land.

22. The defendant denies she received a letter dated 12th May 2003 from the plaintiff telling her to vacate the land. She did say however that one of the plaintiff son, Tony, did survey the land in 2001 and he also delivered a letter from the plaintiff to the defendant telling the defendant to vacate the land. The letter prompted the defendant to travel to New Zealand the same year and confronted the plaintiff who told the defendant that the land is for the plaintiff's children.

23. The defendant counterclaims that the plaintiff did originally in 1965 gifted to the defendant's family part of her land to the northern and when she subsequently sold that piece, she gifted another area to the southern end of her two storey building. As a consequent of the plaintiff gifting part of her land the defendant's family, in particular the defendant's brothers living in America gifted cars and monies to the plaintiff and her family in return for her kindness.

24. The defendant also counterclaim that the plaintiff did agree to convey part of the land to the defendant and an agreement to purchase part of the land was signed.

25. The defendant rely on the equitable doctrine of estoppel as a defence on the basis that the plaintiff encouraged the defendant and her family in their expenditure of money on the faith of an assurance or promise that part of the land has been gifted to them.

26. The defendant also relies on the equitable doctrine of constructive trust and claim that the plaintiff holds the land for herself and as constructive trustee for the defendant as equitable purchases of the land. The defendant claims she is entitled to about a quarter (1/4) acre of the land.

Plaintiff's response to the Counterclaim

27. The plaintiff denies she offered part of her land to the defendant's mother and family in 1965 to substitute for her mother's land which was offered but not given to the defendant's family. Neither did she point out a piece of her land to the defendant's family to own and possess. She was under no obligation to offer the defendant and her family any land.

28. She admitted that one of the defendant's brother Lino, did construct a Samoan fale on part of her land, but it was for the reason that the two storey house was overcrowded by her family, her mother, defendant's parents and defendant's brother Lino and his family.

29. She denies sending for the defendant in 1972 or 1973 while she was at Luatuanuu with her husband. It was her husband who sent for the defendant to talk about their family matters; the land was not the subject of the discussion.

30. She also denies the defendant's contention that she pointed out to the defendant and her mother a portion of the land to the Southern boundary to substitute for the piece at the northern boundary which the defendant alleged the plaintiff formerly pointed out to the defendant, for her family to build a house.

31. She concedes that the defendant's children occupied the land in 1988 but the request came through her husband as she never received any direct request from the defendant. As her in-laws the plaintiff was prepared to allow the family of her husband to occupy the land free of charge whilst they saved for a land of their own. And in 1991 following cyclone Ofa, she was prepared to help and did send $3,000 in response to the defendant's request through the plaintiff's husband to repair the house. When the same request, again through the plaintiff's husband was made following the damages caused by Cyclone Val, the plaintiff denied further assistance. She was not aware that the defendant with the assistance of her brothers built a house where her old two storey building was standing. In the same year the defendant through the plaintiff's husband requested the plaintiff to sell her the land for $8,000.

32. When the defendant came to Auckland in 2001 and for the first time personally requested the plaintiff to sell her the land the offer was declined and was told to vacate the land. She denies telling, or encouraging the defendant or anyone of her family to continue to occupy the land or that she will convey part of her land to the defendant or anyone of her family.

33. In 2005 the plaintiff took steps to evict the defendant.

Did the plaintiff gift part of her land to the defendant's family

34. Defence counsel submitted that the plaintiff who looked after her mother was under pressure to compensate her husband's family who suffered financially from the aborted land deal with the plaintiff's mother, prompting the plaintiff to gift the northern part of her land to the defendant's family. And this was the part of the land where the defendant's brother, Lino, built his house.

35. It was also submitted that in 1972 or 1973 when the plaintiff sold the northern end of her land to finance their intending migration to New Zealand, the plaintiff pointed out to the defendant the land to the southern end of the house as substitution. It was agreed then, that, that piece should be conveyed to the defendant and her brother Sanele and the agreement was signed at the office of the Real Estate Agent.

36. It is extremely difficult to accept the evidence of the defendant that she was sent for by the plaintiff in 1972 or 1973 to be told that the northern end of the plaintiff's land has been subdivided and sold. Similarly her allegation that an agreement was executed at the office of the Real Estate Agent soon after cannot be accepted. The northern side of land was not subdivided by the plaintiff until 1977, the subdivision plan was submitted for approval in April 1977 and was approved by the Director of the Department of Lands and Survey (as it was then known) on the 19th May 1977. The plaintiff could not have sold her land and executed any agreements or conveyances until after May 1977. Indeed in 1972 or 1973 the plaintiff was not the registered owner of the land. She was the registered owner on the 6th August 1976 when the deed of conveyance dated 28th July 1976 conveying the land from the administrator of the estate to the plaintiff was registered.

37. The plaintiff cannot be argued to be under a moral duty to put right what her mother appeared to have committed against the defendant's parents. As against the defendant personally the plaintiff owed nothing. In 1964 when the defendant's parents came to live with the plaintiff, the plaintiff had a mother and six infant children to care for. The defendant's parents were also accompanied by the defendant's brother Lino his wife and children, as well as the defendant herself, although she did not appear to stay long.

38. I accept the plaintiff's evidence that Lino built a Samoan fale next to the two storey house to avoid overcrowding of the two storey house. The Samoan fale was not constructed at the northern end of the land as asserted by the defendant to identify the land allegedly gifted by the plaintiff.

39. It cannot be ignored that when the defendant's parents retired from serving the church, they had no land or home of their own to move to. The evidence did indicate that the defendant's father did spend time at his family at Falefa before his death but when he did die in 1965 his widow lived with the plaintiff until her death in 1974 so that for some ten years the plaintiff took care of the defendant's mother. Similarly when the defendant's husband died in 1977, the defendant had no land or house to move to compelling her to join her children living on the land free of charge.

40. If the defendant was sincere about her assertions that the plaintiff in 1972 or 1973 pointed out to her part of the land to the southern boundary for the defendant and her family, and if indeed an agreement for the transfer was executed soon after to transfer the land to the defendant and her brother, then there was no good reason to stop the defendant and her brothers from building a house on the land for them and their mother. And after cyclone Val they could have built their house there instead of erecting one where the plaintiff's two storey building once stood. Neither was it necessary for the defendant to request the plaintiff to bury her husband on the land if they already had their own land allegedly pointed out, gifted and transferred in 1972 or 1973.

41. Although the plaintiff did admit she visited the office of the Real Estate Agent, she did so for the purpose of selling her lands to the northern end after her subdivision plan was approved. I accept her evidence she did not accompany the defendant to the office of the Real Estate Agent and she did not sign any agreement with the defendant or with anyone of her family. One would expect the defendant or a member of her family to safeguard the copy of the agreement which endowed her and her family with such a valuable gift.

Did the plaintiff encourage the defendant and her family to provide vehicles or other form of monetary assistance or to lay out money upon the land?

42. It is blatantly clear the defendant personally did not provide, give or contributed to the three motor vehicles provided by her brothers. It is also blatantly clear the defendant did not contribute to monies paid by her parents to the plaintiff's mother. Above all, there is nothing to suggest that the plaintiff either personally or through her husband requested any form of payments for rent, maintenance and upkeep from the defendant, her parents or her brothers during the time the parents were living with the plaintiff and before the plaintiff and her family left the land in 1977 for New Zealand.

43. The three motor vehicles given by the brothers then living in the United States of America could not be labeled as a form of payment for the land. They were not specifically given to the plaintiff.
There was no encouragement from the plaintiff to provide the vehicles. I reject the evidence of Pepe, the brother of the defendant that when he left for America in 1962 he already knew about the land deal between his parents and the plaintiff's mother because according to the testimony of the defendant the plaintiff's mother started to borrow from the defendant's father in 1963. It was this borrowing which led to the land deal. The land deal did not exist in 1962 as Pepe testified. Similarly I reject his evidence that when he purchased the vehicles for use by the plaintiff and her family, it was for the purpose of compensating or reciprocating the plaintiff's generosity in giving her land. Pepe's mother and family members living with the plaintiff also needed transport.

44. It seems however that the provision of vehicles by the brothers in the United States of America appeared to cease after the death of their mother. One of the vehicles purchased in Samoa with the assistance of Pepe was hired to the government not only to pay for the balance of the purchase, but also to provide and assist the plaintiff and her family with the maintenance and upkeep of the defendant's mother. In providing the vehicles, the defendant's brothers felt obligated to assist their brother (husband of the plaintiff) and the plaintiff, with the upkeep, care and maintenance of their mother.

45. During the lifetime of the plaintiff's husband it seems quite obvious that all the requests by the defendant and her family concerning the use and occupation of the land were channeled to the plaintiff through her husband. When the defendant's children occupied the plaintiff's two storey building in 1987 or 1988 the request for them to live in the house was made by the defendant to the plaintiff through the plaintiff's husband. Permission was then granted by the plaintiff. When the two storey building was damaged by Cyclone Ofa, the request by the defendant for monies to effect the repairs was again made by the defendant through her brother, husband of the plaintiff. When the house was ravaged by Cyclone Val the following year the request was again made by the defendant through her brother. When the defendant offered to buy the land, the request was channeled through her brother.

46. I accept the evidence of the plaintiff that she was ignorant of the construction by the defendant and her brothers of a house on the foundation of her old two storey building. The defendant told the court that in response to her request through her brother for moneys to repair the house she was told to seek assistance from the United States of America. What transpired between the defendant and her brother (husband of the plaintiff) was kept away from the plaintiff. At the time, the defendant was desperate as she and her children had no roof for shelter and her brothers living overseas were probably her only hope. And constructing a house on an existing foundation was cheaper and quicker than constructing a new foundation.

47. But what is certain is that the plaintiff did not know and certainly did not encourage the defendant or anyone of her family to expend money upon the land. She certainly did not create an expectation in the defendant that she or others in her family have an interest in the land. In fact all the plaintiff wished for was for her in laws to vacate the land.

Conclusion

48. In relation to the defence based on the equitable doctrine of estoppel, the defence must fail as the plaintiff did not verbally agree to gift her land to the defendant or anyone of her family; she did not create an expectation in the defendant or anyone that she or anyone has interest in the land; she did not encourage or created an encouragement in the defendant or anyone else that she has interest in the land, and she did not encourage the defendant or anyone to expend money on the land. The often quoted passage in this area of the law is that of Lord Kingsdown in Ramsden v. Dyson (1866) LR, HL 129:

"The rule of law applicable to the case appears to me to be this: If a man, under a verbal agreement with a landlord for certain interest in land, or, what amounts to the same thing, under an expectation, created or encouraged by the landlord, that he shall have an interest, takes possession of such land, with the consent of the landlord, and upon the faith of such promise or expectation, with the knowledge of the landlord, and without objection by him, lays out money upon the land, a Court of equity will compel the landlord to give effect to such promise or expectation. This was the principle of the decision in Gregory v. Mighell [1811] EngR 580; (18 Ves 328) and as I conceive, is open to no doubt."

48. Similarly in relation to the equitable doctrine of constructive trust, the evidence as I have determined above does not support or justify the imposition of a constructive trust. It must suffer the same fate as the proprietary estoppel.

49. For the foregoing reasons I conclude as follows:

(i) Judgment is given for the plaintiff

(ii) The defendant and her family are to vacate the plaintiff's land and remove their house within three (3) months from today.

(iii) The defendant will pay costs of $2,000.

JUSTICE VAAI