Lafaele v Talipeau [2014] WSSC 18 (15 May 2014)

SUPREME COURT OF SAMOA
Lafaele v Talipeau & Ors [2014] WSSC 18

Case name: Lafaele v Talipeau & Ors

Citation: [2014] WSSC 18

Decision date: 15 May 2014

Parties:
MARETA LAFAELE and MALIA LAFAELE as Administrators of the Estate of KALALA LAFAELE and SIONE TALIPEAU of Taufusi and VISE IOSEFO of Taufusi and USUGAFA TOVIO, LAFAELE LUI, SULIETA VISE IOSEFO and VISE IOSEFO c/- of Sogi Law, Tamaligi.

Hearing date(s): 4 Feb, 9 May, 1 August 2013

File number(s): CP 16/12

Jurisdiction: CIVIL

Place of delivery: MULINUU

Judge(s): CHIEF JUSTICE PATU FALEFATU SAPOLU

On appeal from:

Order:

Representation:
P A Fepulea’i for plaintiffs
M G Latu for first, second and third defendants

Catchwords:
Intestacy, dismantle,

Words and phrases:
rules of succession, cause of action, unjust enrichment, proprietary estoppel,

Legislation cited:
An Introduction to Land Law (2007)
Elements of Law of Real Property, 5th edition (2009)
Law of Real Property, 7th edition (2008)
Snell’s Equity, 31st edition (2005)
The Law of Restitution (1993) 4th ed

Cases cited:
Elisara v Elisara [1994] WSSC 4
Paul v Tuanai [1994] WSSC 15.
Pettkus v Becker [1980] 2 SCR 834, p.847
Public Trustee v Brown and Others (1994) (unreported, 21/93; judgment
Rathwell v Rathwell [1978] 2 SCR 436
Stanley v Vito [2010] WSCA 2
Willmott v Barber (1880) 15 Ch.D.96
Thorner v Major and Others [2009] UKHL 18

Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: CP 16/12

BETWEEN

MARETA LAFAELE and MALIA LAFAELE as Administrators of the Estate of KALALA LAFAELE

Plaintiffs

A N D:

SIONE TALIPEAU of Taufusi.

First Defendant

A N D

VISE IOSEFO of Taufusi.

Second Defendant

A N D

USUGAFA TOVIO, LAFAELE LUI, SULIETA VISE IOSEFO and VISE IOSEFO c/- of Sogi Law, Tamaligi.

Third Defendants

Counsel:
P A Fepulea’i for plaintiffs
M G Latu for first, second and third defendants
Judgment: 15 May 2014

JUDGMENT OF SAPOLU CJ

Proceedings

1. As it appeared during the hearing of this matter, the plaintiffs are seeking orders to evict the first, second, and third defendants from the land in dispute and for the defendants not to interfere with the removal and relocation of the graves of the plaintiffs parents which are on the land. The plaintiffs are also seeking an order for the removal of caveat no. 32220 lodged by the third defendants against the title to the land. On the other hand, the third defendant Sulieta Talipeau and her brother Pio Talipeau, who is not named as a party in these proceedings, have counter-claimed for compensation on the basis of unjust enrichment for improvements which they claim to have made to the land.

The parties

2. All the parties to these proceedings are members of the same family. They are descendants of one Lafaele Matalavea and his wife Selina Lafaele who had served as catechists in the Roman Catholic Church. The plaintiffs are twin sisters. They are daughters of Lafaele Matalavea and Selina Lafaele. They were born on 2 December 1939 and both would now be 74 years old. They have brought these proceedings as administrators of the estate of their late sister Kalala Lafaele who passed away intestate and without heirs in Wellington, New Zealand, on 5 February 1999.
3. The third defendant Sulieta Talipeau is a daughter of Talipeau Visesio Lafaele, the elder brother of the plaintiffs, who died in 1988. The counter-claimant Pio Talipeau who has not been cited as a party and did not give evidence in these proceedings is a brother of Sulieta Talipeau. Thus, Sulieta Talipeau and her brother Pio Talipeau are a niece and nephew of the plaintiffs. Pio Talipeau migrated to New Zealand (date unknown) and is now living in New Zealand. Even though he returned to Samoa in 1990 he went back to New Zealand. So he is no longer in occupation of the disputed land.
4. The first defendant Sione Talipeau is a son of the said Sulieta Talipeau. He was living on the disputed land at the time the plaintiffs brought these proceedings but is no longer living on the land. He did not give evidence in these proceedings.
5. The second defendant Vise Iosefo is the son of Kilisitina Lafaele another sister of the plaintiffs who has passed away. So Vise Iosefo is a nephew of the plaintiffs. He is a beneficiary of the estate of Kalala Lafaele, through his mother, by reason of the rules of succession in the case of an intestacy. However, he did not appear to give evidence at the hearing of these proceedings. It also appears that he is no longer living on the disputed land as it appears from the evidence of Sulieta Lafaele that it is only Sulieta Lafaele, her husband Tele’a Su’a, and some of her children who are still living on the disputed land . When the Court inspected the disputed land, the only buildings on the land are the two storey building used to be occupied by Mareta Lafaele and the wooden dilapidated house occupied by Sulieta, her husband, and her children. There is no house of Vise Iosefo on the land.
6. The third defendant Usugafa Tovio has never lived on the disputed land. It appears he is a member of the plaintiffs’ family but his actual connection to the plaintiffs is not clear. Usugafa Tovio also did not appear to give evidence.
7. The third defendant Lafaele Lui used to live on the disputed land but has migrated with his family to New Zealand. He did not appear in these proceedings and therefore no evidence was received from him.

Background

(a) History of the title to the land

8. The land in question, which is about a quarter of an acre, was purchased by the parents of the plaintiffs from the Roman Catholic Church around 1960 when they retired as catechists. The land was swampy in places and the plaintiffs father dug up soil from the ditch that ran alongside the land in order to elevate the land. The plaintiffs parents then dismantled their two storey Samoan house which was on customary land belonging to the title Tomaagauaune of Vaimoso and reassembled it in the middle of the land. At that time, the plaintiffs who were born in 1939 were both about 21 years old. The two storey Samoan house must have been renovated since that time because when the Court inspected the land during the hearing of these proceedings, the house has a roof of corrugated iron and the ground floor has a concrete foundation and posts. The plaintiffs elder brother Talipeau Lafaele, the father of Sulieta Talipeau, also dismantled his wooden house which was on the same land of the title Tomaagauaune and reassembled it on what is now the front part of the disputed land facing the public road at the Fugalei Market. Sulieta who was born in 1959 would have been about one year old at that time. The parents of the plaintiffs, their children, and their grandchildren then lived peacefully on the land.
   9. When the father of the plaintiffs passed away on 21 December 1972, he was buried on the land. The land was then transferred to the plaintiffs mother and Mareta Lafaele. The deeds of conveyance were not drawn up and registered until 1975. The plaintiffs mother and Mareta Lafaele then became the registered owners of the land as tenants in common in equal shares. In 1976, the plaintiffs mother decided to transfer her undivided half interest in the land to her daughter Kalala Lafaele in New Zealand because Kalala had been contributing to the payment of the purchase price of the land. Mareta Lafaele and her sister Kalala Lafaele then became the registered owners of the land as tenants in common in equal shares. When the plaintiffs mother died on 6 September 1982, she was also buried on the land.
10. Subsequently, Mareta Lafaele, sold her undivided half interest in the land. Her sister Kalala Lafaele then died in Wellington, New Zealand, on 5 February 1999. She left no will. At the time of her death, Kalala had no children and her husband had pre-deceased her. Likewise, her parents. The plaintiffs were then appointed administrators of her estate. On 25 November 2011, the plaintiffs entered into a sale and purchase agreement for the sale of Kalala’s undivided half interest in the land to a third party. One of the conditions of this sale and purchase agreement is that the plaintiffs provide vacant possession of the land to the purchaser and the graves on the land be removed before payment of the balance of the purchase price.

(b) Occupation of the land

11. As already pointed out, the plaintiffs parents and their family first occupied the land around 1960. They relocated their two storey Samoan house from where it was and reassembled it in the middle of the land. The plaintiffs elder brother Talipeau Lafaele also brought his house and reassembled it on what is now the front part of the land.
12. In 1960, the plaintiffs’ sister Kalala Lafaele left Samoa for New Zealand. In 1964, the plaintiff Malia Lafaele also left for New Zealand. By 1970, the plaintiffs other sister Anastacia had also left for New Zealand. So by 1970, those siblings of the plaintiffs were no longer occupying the land. That must have left the plaintiffs parents, the plaintiff Mareta Lafaele, and the plaintiffs elder brother Talipeau Lafaele and his wife and children still living on the land. The evidence given by Sulieta Talipeau suggests there was a third house on the land at that time. So there must have been other family members living on the land at that time. But it is not clear from the evidence who they were.
13. In 1988 Talipeau Lafaele, the father of Sulieta, died and was buried on the land.
14. Then in 1990, Sulieta Talipeau re-married to Tele’a Su’a as her first husband had passed away. Around that time, Pio Talipeau, the brother of Sulieta Talipeau who had migrated to New Zealand (date unknown), returned to Samoa and set up a small shop in front of the wooden house built by their late father Talipeau Lafaele on the land.
15. In 2000, the wooden house built by Talipeau Lafaele and in which Sulieta Talipeau and her family were still living was renovated after Sulieta had sought and obtained the consent of her aunty Mareta Lafaele. On inspection by the Court of the land, this house looks small, cheap, and dilapidated. Then in 2005, Sulieta Talipeau left for Australia to educate some of her children. The other children of Sulieta and their father Tele’a Su’a who operates a carpentry business on the land remained on the land. Every year, Sulieta returns to Samoa to visit her family and lives with her family on the land.
16. In 2007, Mareta Lafele who had always been living on the top floor of the two storey house left the land. She has not lived on the land since. Thus the only people who are still living on the land are Sulieta, her husband Tele’a Su’a, and her children. It does not appear that there is anyone else living on the land. On inspection of the land by the Court, the only structures that still remain on the land are the two storey house, the wooden house in which Sulieta and her family live, the graves of the plaintiffs parents, and the grave of Talipeau Lafaele the father of Sulieta.

(c) Reclamation of the land

17. As already mentioned, around 1960 the land in question was swampy in places. But it could not have been all swampy. That is because the plaintiffs parents were able to reassemble their two storey Samoan house in the middle of the land and the plaintiffs elder brother Talipeau Lafaele, the father of Sulieta, was also able to reassemble his wooden house on what is now the front part of the land. There is also evidence that there was a third house on the land. Before the plaintiffs’ family moved onto the land around 1960, the plaintiffs father had also dug up soil from the ditch that ran alongside the land to fill some of the swampy parts. When the plaintiffs’ father died in 1972, he was buried on the land. Likewise, when the plaintiffs’ mother died in 1982, she was also buried on the land. When Talipeau Lafaele died in 1988 he was also buried on the land. Around 1990, Sulieta’s brother Pio Talipeau returned from New Zealand and set up a small shop on the land. Thus the land, which is only about quarter of an acre, could not have been all that swampy as the evidence of Sulieta seems to suggest. When the Court inspected the land during the course of these proceedings, only a very tiny part of it behind the two storey building is still watery.
18. Parts of the evidence given by Sulieta about the alleged reclamation work done on the land by her father and siblings in New Zealand are unconvincing and do not inspire confidence. According to Sulieta’s evidence, from 1990-1991 her family paid for 20 truckloads of soil and aggregate from Leauvaa at $300 per load, 15 loads of boulder from Levi, Saleimoa, at $200 per load, and about 20 loads of aggregate from Moamoa at $250 per load to fill the swampy parts of the land. This would be 55 truckloads. The cost of the fill did not include the cost of the trucks which was $100 per load. In other words, the total cost of the fill would be $14,000 and the total cost of the trucks would be $5,500. Together, the total cost of the reclamation would be $19,500. The labour was provided by Sulieta’s own family.
19. Sulieta testified that her father was responsible for the initial loads of fill from Leauvaa. This cannot be true. If Sulieta’s father died in 1988, then he could not have been responsible for the loads of fill from Leauvaa in 1990. Sulieta’s father had also been paralysed from the waist down since 1965 and was not employed. He became a cripple. So he could not have earned any money to pay for the loads of fill from Leauvaa.
20. Sulieta then said that when her father died her brother Pio Talipeau returned from New Zealand and built a small shop on the land and continued the reclamation of the land with his income from the shop. I am not convinced that the reclamation claimed by Sulieta could have been financed in a major way from the small shop of her brother Pio given the life in Samoa and the smallness of the shop. Sulieta also said that her other siblings in New Zealand also contributed to the costs of reclamation. There was no evidence as to who were those other siblings of Sulieta in New Zealand. Neither Pio Talipeau nor any of those other siblings of Sulieta appeared to give evidence.
21. I would also be surprised if Sulieta did not know in 1990-1991 that the land in question was registered in the names of her aunties Mareta Lafaele and the late Kalala Lafaele. It is more likely than not that she was aware of that fact in 1990-1991 because in 2000 when she wanted to renovate her late father’s house on the land she sought the consent of her aunty Mareta. It is also difficult to believe that Sulieta’s brother Pio and her other siblings in New Zealand, none of whom appeared to given evidence, would have spent such a large sum of money of about $19,500 to fill in the swampy parts of the land knowing full well that the land belonged to Mareta and Kalala and not to them. I would also have expected Pio and Sulieta’s other siblings in New Zealand to come over and give evidence in this case, if it is true that it was them who financed the reclamation work claimed by Sulieta, otherwise the estate of their aunty Kalala Lafaele would make an unjust gain at their expense. But none of them came to Samoa to give evidence. Only Sulieta who admitted she did not contribute financially to the alleged reclamation work, but is living on the land with her husband and children, appeared to give evidence.
22. Furthermore, even if it is accepted that Sulieta’s siblings did contribute to the reclamation of parts of the land that were still swampy in 1990 - 1991 as alleged by Sulieta, it is also clear from Sulieta’s own evidence that much of the fill sank to the bottom and disappeared or was washed away. Such fill, therefore, did not improve the value of the land because it either sank to the bottom and disappeared or it was washed away during high tide or heavy rain. Counsel for the defendants said that the land would have been in a worse condition if Sulieta’s siblings had not reclaimed the land. However, there was no evidence to support such an assertion. What counsel says from the bar table is not evidence.
23. Perhaps, it should also be mentioned at this junction that since Sulieta’s father passed away in 1988, Sulieta and her family have continued to live on this land free of rent. Her present husband Tele’a Su’a has also been operating a carpentry business on the land up to now rent free. Likewise, when Sulieta’s brother Pio operated a small shop on the land he did not pay any rent. The evidence also clearly suggests that when Sulieta’s father was alive he did not pay rent for staying on the land with his wife and children. This was notwithstanding the fact that Mareta became a registered co – owner of the land in 1975 and Kalala in 1976.
24. The land is situated in the Taufusi/Fugalei area close to the centre of Apia. It is therefore very convenient. Undoubtedly, Sulieta and her family who have lived on this land for so many years up to now have greatly benefitted from their occupation of the land.
25. The evidence of the plaintiff Mareta Lafaele regarding the alleged reclamation is that she had been living on the land in her family’s two storey house since her parents moved onto the land around 1960. It was not until 2007 that she left the land. In 1990-1991 she was still living in the top storey of the two storey house and she did not see any reclamation work being done by Sulieta and her family on the land. If there had been such reclamation work she would have known about it. Mareta also said that in 1980 she had requested loads of fill from the then Minister of Works and five truckloads of fill were sent to the land. That was the only reclamation done to the land. She denied that Sulieta and her family brought any truckloads of fill to reclaim parts of the land.
26. After careful consideration of the evidence, I prefer the evidence of Mareta Lafaele to that of Sulieta and the other witnesses for the defendants regarding the alleged reclamation in 1990-1991.

The defendants counter claim

(d) Unjust enrichment

27. Sulieta and her brother Pio have counter-claimed against the plaintiffs on the basis of unjust enrichment for compensation for the improvements alleged to have been made by them to the land. Unjust enrichment as a cause of action was first adopted by this Court in the case of Public Trustee v Brown and Others (1994) (unreported, 21/93; judgment 24 January 1994, pp.21, 41) and in Elisara v Elisara [1994] WSSC 4. Since that time, unjust enrichment as a cause of action has been applied in a number of subsequent Samoan cases.
28. The cause of action for unjust enrichment consists of three elements. These three elements have been expressed in various ways. In Stanley v Vito [2010] WSCA 2, para 20, the Court of Appeal said:

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

29. In Canada in the case of Pettkus v Becker [1980] 2 SCR 834, p.847, Dickson J stated the elements of unjust enrichment in these words:

“In Rathwell v Rathwell [1978] 2 SCR 436 I ventured to suggest there are three requirements to be satisfied before an unjust enrichment can be said to exist: an enrichment, a corresponding deprivation and absence of any juristic reason for the enrichment”.

30. In the English text The Law of Restitution (1993) 4^th ed by Goff and Jones, the learned authors stated at p.16:

“[Unjust enrichment] presupposes three things. First, the defendant must have been enriched by the receipt of a benefit. Secondly, that benefit must have been gained at the plaintiff’s expense. Thirdly, it would be unjust to allow the defendant to retain the benefit”.

31. The plaintiffs in this case deny that the defendants carried out any reclamation to the land. Therefore, the estate of Kalala deceased has not gained any benefit to the land at the expense of the defendants. I have already decided to prefer the evidence of the plaintiff Mareta as opposed to the evidence given by the third defendant Sulieta and the other witnesses for the defendants on this aspect of the case. It follows that the counter-claim for unjust enrichment cannot succeed.
32. I have also mentioned earlier that much of the fill which Sulieta said her family had brought onto the land in 1990-1991 had sunk to the bottom and disappeared or washed away during high tide or heavy rain. So such fill could not have improved the value of this quarter acre of land which already had three houses and three graves on it. Counsel for the defendants tried to say from the bar table that the land would have been in a worse condition without that fill. There was no evidence to support this assertion by counsel. Anyhow, I cannot see how the fill disappeared or washed away could have enhanced the value of the land. The counter-claimants would have to show that the estate of Kalala has incontrovertibly benefitted from their alleged reclamation. They have not done so.
33. Furthermore, Sulieta, according to her own evidence, did not contribute financially to the alleged reclamation of the land. She has always been unemployed. She testified that her father started the reclamation in 1990. She then testified that it was her brother Pio and her other siblings in New Zealand who contributed money to the reclamation. Sulieta was also not involved in the alleged transportation of fill from Leauvaa, Saleimoa, and Moamoa onto the land. So even if I were to accept the reclamation claimed by Sulieta, it cannot be said that the estate of Kalala had gained a benefit at the expense of Sulieta who had contributed nothing to that reclamation. On this basis, the counter-claim by Sulieta for unjust enrichment would also fail.

(e) Proprietary estoppel

34. The counter-claim in proprietary estoppel is not pleaded in the statement of defence and counter-claim but was introduced by counsel for the defendants at the commencement of the hearing of these proceedings. Counsel for the defendants rely in this part of the counter-claim on the five probanda enunciated as the basis of the doctrine of proprietary estoppel in Willmott v Barber (1880) 15 Ch.D.96 where Fry J said at p.106:

“(1) The plaintiff must have made a mistake as to his or her legal rights.

“(2) The plaintiff must have expended some money, or must have done some act on the faith of his or her mistaken belief.

“(3) The defendant, the possessor of the legal right, must know of the existence of his or her own legal right which is inconsistent with the right claimed by the plaintiff. If he or she does not know of it, he or she is in the same position as the plaintiff.

“(4) The defendant, the possessor of the legal right, must know of the plaintiff’s mistaken belief of his or her rights. If the defendant does not, there is nothing to call upon him or her to assert his or her own right.

“(5) The defendant, the possessor of the legal right must have encouraged the plaintiff in his or her expenditure of money or in the other acts which he or she has done, either directly or by abstaining from asserting his or her legal rights”.

35. There have been more recent formulations of the requirements of proprietary estoppel which are referred to in the judgment of this Court in Paul v Tuanai [1994] WSSC 15. It will be sufficient of the purposes of this case to deal with the counter-claim in proprietary estoppel on the basis of Willmott v Barber [1880] UKLawRpCh 183; (1880) 15 Ch. D 96, 106 and its five probanda as cited by counsel for the defendants.
36. For several reasons which I will explain, I must say that the doctrine of proprietary estoppel cannot apply to the house of Sulieta and her family which is presently on the land. What had happened was that around 1960, Taipeau Lafaele, the father of Sulieta, dismantled his wooden house which was on customary land which belonged to the title Tomaagauaune of Vaimoso and reassembled it on the land in question. Talipeau and his wife and children then lived in that house. The house became decayed (pala) and Sulieta and her children wanted it renovated. Sulieta then asked Mareta for permission to renovate her father’s house in which she was staying with her family and Mareta gave her consent. Sulieta and her children then renovated the house. This was in 2000.
37. If anything, it appears that Sulieta and her children are living on the land as licensees, that is to say, with the permission of Mareta. I find it difficult to accept the evidence of Sulieta that she had a belief that she had a right to the land because the land belonged to her grandparents. That is because she asked Mareta for permission before they renovated or re-built their house in 2000. I also find it difficult to accept that since Mareta acquired a half interest in the land in 1975 and Kalala the other half interest in 1976, Sulieta was never aware of that fact even though she has been living on the land with Mareta. This is particularly so when considering that her grandfather died in 1972 and her grandmother in 1982 and one would expect the family members living on the land to be interested in finding out about the then status of the land.
38. Anyhow, even if it is assumed that Sulieta had a mistaken belief that she has a right to the land, there is absolutely no evidence that the plaintiffs knew of Sulieta’s mistaken belief that she has a right to the land (probanda 4 in Willmott v Barber). There was also no evidence that Sulieta informed the plaintiffs of her belief. What Sulieta did was simply to request permission from Mareta to renovate her father’s house because it was decayed. Mareta consented and Sulieta and her children then went ahead and renovated or rebuilt the house. So Mareta did not encourage Sulieta and her children to expend money in renovating the house they were living in (probanda 5 in Willmott v Barber). It was Sulieta, herself, who wanted to renovate her father’s house she was living in with her children because it was decayed. She wanted to make the house livable. Anyway, upon inspection by the Court of the land, Sulieta’s renovated house looks small and dilapidated.
39. Mareta does not want the house. She wants it to be removed from the land. There is no reason why she or the estate of Kalala should pay for the costs of dismantling and relocating the house. After all, it was not Mareta who wanted to have the house renovated or rebuilt. It was Sulieta. Since the house was renovated in 2000, Sulieta and her family have not paid for any rent or were charged with any rent. Likewise, Sulieta’s husband has also been using part of the house for his carpentry business rent free.
40. The counter-claim in proprietary estoppel must also fail.
41. Before leaving proprietary estoppel, I want to refer to the recent formulation of the elements of proprietary estoppel by the House of Lords for the assistance of counsel in future cases. In Thorner v Major and Others [2009] UKHL 18, Lord Walker of Guestingthorpe said at para 29:

“This appeal is concerned with proprietary estoppel. An academic authority (Simon Gardner, An Introduction to Land Law (2007) p. 101) has recently commented:

“‘There is no definition of proprietary estoppel that is both comprehensive and uncontroversial (and many attempts at one have been neither)”.

“Nevertheless most scholars agree that the doctrine is based on three main elements, although they express them in slightly different terms: a representation or assurance made to the claimant; reliance on it by the claimant; and detriment to the claimant in consequence of his (reasonable) reliance (see Megarry & Wade, Law of Real Property, 7th edition (2008) para 16-1001; Gray & Gray, Elements of Law of Real Property, 5th edition (2009) para 9.2.8; Snell’s Equity, 31st edition (2005) paras 10-16 to 10-19; Gardner, An Introduction to Land Law (2007) para 7.1.1)”

42. Lord Neuberger of Abbotsbury at para 72 of his judgment expressly agreed with the formulation by Lord Walker of the elements of proprietary estoppel.
43. Even if this modern formulation of the elements of proprietary estoppel was applied to this case, the counter-claim in proprietary estoppel would still fail. In the first place, there was no representation or assurance given by Mareta to Sulieta that the land does not belong to her or her sister Kalala but to her parents (the grandparents of Sulieta). Nothing of the sort appears from the evidence. Secondly, because no such representation or assurance was given by Mareta, Sulieta could not have relied on such a non - existent representation or assurance to her detriment.

One final matter

44. There is one final matter that was repeatedly stated in the evidence of Sulieta and is also repeated in the written submissions of counsel for the defendants. This is the tautua (service) Sulieta claims to have provided to Mareta over the years in terms of food for her. If this is true, I do not consider such Samoan generosity to the elderly people of a family to be an improvement to the land. Counsel for the defendants also did not refer to any legal authority that such Samoan generosity is compensable in law. In any event, Sulieta must not forget that she and her family have lived on the land and make use of the land for many years without having to pay anything for their occupation and use of the land. Given the location of the land which is so close to the centre of Apia, they have greatly benefitted from their occupation and use of the land.

Conclusions

45. (1) The defendant Sulieta Talipeau, her husband, and her children together with all their relatives, servants and agents are ordered to vacate the land in question within 2 months.

(2) The defendant Sulieta Talipeau, her husband, and her children are also ordered to dismantle and remove their house from the land within 2 months.

(3) The defendant Sulieta Talipeau is also ordered to remove the grave of her father Talipeau Lafaele from the land within 2 months.

(4) Any of the other defendants (first, second, or third) who may be living on the land is ordered to vacate the land within 10 days.

(5) All defendants together with their relatives, servants, and agents are restrained from interfering in any way with the removal by the plaintiffs of the graves of their parents Lafaele Matalavea and Selina Lafaele which are on the land.

(6) The third defendants caveat no.32220 is to be removed forthwith.

(7) The plaintiffs are to pay to the second defendant Vise Iosefo his share in the estate of Kalala from the balance of the purchase price from the purchaser of the land if the second defendant has not already been paid his share in the estate.

46. Counsel to file memorandum as to costs in 10 days if agreement cannot be reached.

CHIEF JUSTICE

Solicitors
Fepulea’i and Roma Law Firm for plaintiffs
Latu Lawyers for defendants