IN THE SUPREME COURT OF SAMOA
Fuimaono v The Public Trustee [2017] WSSC 33

Case name: 	Fuimaono v Public Trustee and Hunter	
		
Citation: 	[2017] WSSC 33	
		
Decision date: 	07 April 2017	
		
Parties: 	VAVAE FUIMAONO widow and ELISAPETA FUIMAONO, Caregiver both of New South Wales, Australia and lately of Ululoloa, Executrices and Trustees of the estate of GAFATASI MIKA FUIMAONO, deceased (Plaintiffs) AND THE PUBLIC TRUSTEE, a corporation sole  established pursuant to the Public Trust Office Act 1975, as Administrator of the Estate of TEARIKI (also known as TEALIKI) APAI, deceased. (First Defendant) AND THE PUBLIC TRUSTEE, a statutory body established pursuant to the Public Trust Office Act 1975, as the Administrator of the Estate of PATU AFAESE HUNTER. (Second Defendant) AND TILAFONO DAVID HUNTER and THE HEIRS OF LILI AND TIRESA, being the sisters of Teariki. (Third Defendants).	
		
Hearing date(s): 	07 – 10 November 2016	
		
File number(s): 	CP 172/09	
		
Jurisdiction: 	Civil	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Nelson	
		
On appeal from:		
		
Order:	The plaintiffs have established on a balance of probabilities that they are descended from the Rarotongan man ‘Keliki’ also known as ‘Teariki’ who by his union with Faaluaumeke of the Sā-Fuimaono family of Falefa produced a son Valeriano Lafoia who held the title Fuimaono in the village of Falefa.

Further, that they are descended from the said Fuimaono Valeriano Lafoia.

The plaintiffs have not established on a balance of probabilities that ‘Keliki’ also known as ‘Teariki’ of Falefa is Teariki of Apia, son of Teariki Apai of Rarotonga and Sieni Tamapua of the Sā-Tamapua family of Matafagatele.

They accordingly have no claim to lands of the Estate of Teariki of Apia currently being administered by the first defendant.

Had they satisfied the court they were descendants of Teariki of Apia, their claim would still fail on the basis of the equitable doctrines of laches and acquiescence given their inactivity until in or about 2006.

There is no merit in the legitimacy or Limitation Act arguments.

Or in the Counter-claim which should be dismissed.

Judgment will therefore be entered in favour of the defendants and the third defendants Counter-claim is dismissed.

As each party has to some degree been successful, I make no order as to costs.	
		
Representation: 	J.A.D Needham and S.J Chapple for plaintiffs
S Leung Wai for first and second defendant
M Hunter-Betham for third defendants	
		
Catchwords: 	vigilantibus non dormientibus iura subveniunt’ (“the law assists those that are vigilant not those who sleep on their rights”).	
		
Words and phrases:	Admissibility of hearsay – fundamental issues – judicial notice – equitable doctrines of laches and acquiescence – adverse possession – limitation – business record – estate - heirs	
		
Legislation cited:	Evidence Act 2015	
		
Cases cited:	Alii and Faipule of Laulii v Trustees of Jacob Helg Estate [2011] WSSC 48
Su’a Rimoni v Mulitalo Vui and the Electoral Commissioner (delivered on 01 August 2006)
Commonwealth Shipping Representative v P. & O. Branch Service [1923] AC 191(HL)
Holland v Jones [1917] 23 CLR 149
Weld-Blundell v Stephens [1920] AC 956 at 87
Keane v Mt.Vernon Colliery Co. Ltd [1933] AC 309
Ingram v Percival [1968] 1 All ER 657, 659
Denton v Auckland City [1969] NZLR 256
Whitelocke v Baker (1807) 13 Ves 511
Re Simpson [1984] NZLR 738
Berkley Peerage  Case (1811) 4 Camp 401, 416
Miller v Minister of Pensions [1974] 2 All ER 372 at 373
Curry v Dempsey [1967] 2 NSWR 532 (FC)
Belhaven and Stenton Peerage Case (1875) 1 AC 278 at 279
Lindsay Petroleum Co. v Hurd (1874) LR 5 PC 221
Orr v Ford (1988) 167 CLR 316 at 341
Erlanger v New Sombrero Phosphate Co. (1878) 3 AC 1218, 1279 (HL)
Habib Bank Ltd v Habib Bank AG Zurich [1981] 2 All ER 650
Inwards v Baker [1965] 1 All ER 446, [1965] 2 QB 29
Crabb v Arun District Council [1975] 3 All ER 865, [1976] Ch 179
Taylor Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1981] 1 All ER 897, [1981] 2 WLR 576
Ramsden v Dyson  (1866) KR 1 GK 129
Ah Yeung v Jay To [2010] WSSC 49
McBride v Public Trustee [2010] WSSC 79
Hughes v Schofield [1975] 1 NSWLR 8
Bonney v Ridgard (1784) 29 ER 1101
Lamshed v Lamshed (1963) 109 CLR 440
Leeds v Earl of Amberst (1846) 41 ER 886, 888
Browne v Dunn (1893) 6 R 67 (HL)
Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 44 ALR 607	
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER: 
of Administration Act 1908 (New Zealand).
		
AND:
of the Public Trust Office Act 1975 and the Administration Act 1975

BETWEEN:

VAVAE FUIMAONO widow and ELISAPETA FUIMAONO, Caregiver both of New South Wales, Australia and lately of Ululoloa, Executrices and Trustees of the estate of GAFATASI MIKA FUIMAONO, deceased
.
Plaintiffs

AND:

THE PUBLIC TRUSTEE, a corporation sole  established pursuant to the Public Trust Office Act 1975, as Administrator of the Estate of TEARIKI (also known as TEALIKI) APAI, deceased.
First Defendant

AND:

THE PUBLIC TRUSTEE, a statutory body established pursuant to the Public Trust Office Act 1975, as the Administrator of the Estate of PATU AFAESE HUNTER.
Second Defendant

AND:

TILAFONO DAVID HUNTER and THE HEIRS OF LILI AND TIRESA, being the sisters of Teariki
Third Defendants

Counsel:	
J.A.D Needham and S.J Chapple for plaintiffs
S Leung Wai for first and second defendant
Ms Hunter-Betham for third defendants

Hearing:	07 – 10 November 2016

Submission:	14 November and 13 December 2016

Decision:	07 April 2017

DECISION OF NELSON J
Background
[1] 	The plaintiffs are the executors of the estate of the late Gafatasi Mika Fuimaono of New South Wales, Australia.  Mr Fuimaono was the original plaintiff in this matter.  It is claimed he is a grandson of Fuimaono Valeriano Lafoia (“Lafoia”) of the village of Falefa in Samoa.  Lafoias parents are said to be a male ‘Keliki’ also known as ‘Teariki’ of Rarotonga in the Cook Islands and Faaluaumeke of the Sā-Fuimaono family of Falefa.
[2] 	The evidence establishes that a person named ‘Teariki’ of Rarotonga in the late 1800’s owned and also inherited from his father Teariki Apai substantial properties in the urban Apia area in the villages of Matautu-uta, Vaiala and Matafagatele in eastern Apia and Sogi in western Apia.  According to the plaintiffs tally, some 20 plus acres of prime freehold land.  The plaintiffs say ‘Keliki’ of Falefa and ‘Teariki’ of Apia are one and the same person and is the great-grandfather of the original plaintiff.
[3] 	The evidence also establishes that Teariki of Apia had sisters Lili and Tiresa from whom are descended the third defendant.  By consent of all parties the court in one of a number of pre-trial motions amended the pleadings to show the third defendant in its current form.  
[4] 	At all material times, Tearikis lands were occupied by the third defendant family. Numerous parcels have been conveyed to members of the family by the Public Trustee who was appointed Administrator of the Estate of Teariki of Apia on 08 September 1958 pursuant to an Election to Administer.  The Public Trustee is also Administrator of the Estate of Patu Afaese Hunter one of the beneficiaries of the Estate.  Hence his citation as first and second defendant. 
[5]  	The plaintiffs say they are the proper heirs to Tearikis Estate and are by the laws of succession entitled to all of the Estate lands.  In portions to be appropriately determined by the first defendant. The defendants maintain there was no such person as ‘Teariki’ of Falefa who had a son Lafoia by Faaluaumeke Fuimaono and therefore the plaintiffs are not beneficial heirs.  The third defendant says their family has never heard of Faaluaumeke or Lafoia and the plaintiffs claims are fraudulent, statute barred and unsustainable by virtue of the equitable doctrines of laches and acquiescence as they were made for the first time in or about 2005/ 2006.  In addition the defendants assert the Public Trustee at all times in his distribution of Teariki Estate assets acted in good faith based on the information available to him at the relevant time.
[6] 	Central to the proceedings therefore is the question of whether or not the plaintiffs can prove to the required standard they are descendants of Teariki the Apia landowner.  The debate revolves around the existence or otherwise of the union of Teariki and Faaluaumeke and if so whether this is Teariki of Apia.  This genealogical exercise will be the starting point of the inquiry.  
[7] 	It should be noted at the outset that much of the evidence on this issue is hearsay.  As both sides rely on such evidence, no objection was taken on this basis.  
[8] 	That does not however abrogate the necessity to comply with the requirements of section 10 of the Evidence Act 2015 which relevantly provides:
“10. General rule as to admissibility of hearsay – (1) Subject to subsections (2) to (4) and section 12 (both of which have no application here), a hearsay statement is admissible in any proceedings if:
(a)	the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and 
(i)	the maker of the statement is unavailable as a witness; or 
(ii)	 the Judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness.”
[9] 	The court must accordingly be reasonably satisfied that the statement/s in question is/are considering “the circumstances relating to the statement ……….reliable” and the maker is “unavailable as a witness.” It is common ground a deceased person is for these purposes quite “unavailable”: see also section 9(2)(a).
[10] 	For these purposes “circumstances” is defined in section 9(1) of the Act:
‘“circumstances”, in relation to a statement by a person who is not a witness, includes:
(a)	the nature of the statement; and
(b)	the contents of the statement; and 
(c)	the circumstances that relate to the making of the statement; and
(d)	any circumstances that relate to the veracity of the person; and
(e)	any circumstances that relate to the accuracy of the observation of the person.’
[11] 	This court has had regard on many previous occasions to hearsay evidence of Samoan custom, tradition and genealogy.  In Alii and Faipule of Laulii v Trustees of Jacob Helg Estate [2011] WSSC 48 at paragraphs 33 and 34 my brother Slicer, J said:
“Samoan history is based on an oral tradition passed on by generations (see generally: Producing the Text of Culture by Dr Emma Kruse Vaai (2011) National University of Samoa).
In Alii and Faipule of Siumu District v Attorney General of Samoa (supra) Nelson J. received into evidence and paid regard to historic evidence given through the oral tradition.  His decision was upheld by the Court of Appeal.  Sapolu CJ did the same in the O.F.Nelson Properties Ltd v Feti (supra) hearing, another decision upheld by the Court of Appeal.  A similar course was taken by the Election Court in Su’a Rimoni v Mulitalo Vui and the Electoral Commissioner (delivered on 01 August 2006), when Fuimaono Fereti Tupua gave evidence on the customs of o’o and momoli.  It should be clearly pointed out that in the last mentioned case the court paid respect to the oral testimony but did not accept the conclusion of the historian. Indeed it fulfilled its own duty and rejected his version as to the modification of custom.” 
There are other examples in the case-law.
The plaintiffs case
[12]	Counsel for the plaintiffs in very helpful and detailed submissions correctly avers that the claims by the plaintiffs and the third defendant “are in a sense parallel” and “can co-exist”.  Counsel makes a number of  important points on page 4 of her submissions:
“The plaintiffs case is that Lafoia was the son of Teariki.  The Public Trustee, while having distributed on a different basis to date, did not raise a substantive case against that proposition (or, indeed, a case in support of the prior distributions).  His case was that the estate had been administered in accordance with the information available to him at the time.  As noted in the Opening Submissions, the Plaintiffs accept that the statutory exercise of good faith has been made out, on the basis of the declarations from David Hunter and Tauvela Hunter in 1958, which, along with documents from the Cook Islands and correspondences of the Office’s own, made the distribution to nieces and nephews a reasonable option at the time.
On the other hand, the Third Defendant sought to prove:-
(a)	That the various persons represented by him were in fact descendents of Lili and Tiresa (a fact which was not contested by the Plaintiffs in this hearing);
(b)	The descendents of Lili and Tiresa knew nothing about Lafoia or indeed about Teariki having a son (a fact which the Plaintiffs say is not inconsistent with their case).” 
[13]	But the claims of the plaintiffs and the third defendant diverge on the fundamental issue of whether Teariki the Apia landowner brother of Lili and Tiresa from whom the third defendant is descended had a son Fuimaono Valeriano Lafoia by Faaluaumeke Fuimaono of Falefa from whom the plaintiffs are descended.  That is a question of fact to be determined from the evidence.
[14]	In this regard, the plaintiffs rely upon: 
(i)	Family books kept by the sister of Faaluaumeke and her descendants;
(ii)  	Documentary records kept by the Roman Catholic and Congregational Christian Churches in Samoa; and 
(iii)	Statements by family members as to their genealogy.
Each will be considered in turn.
Family Books
[15]	These were introduced into evidence by Kolopa Tapumanaia the wife of Asofa Tapumanaia the son of Gagau Fuimaono Koli (“Gagau”), grand-daughter of Vailiili the sister of Faaluaumeke of Falefa.  Her evidence was her husbands family including Gagau emigrated to Leonē in Apia some 30 or 40 years ago.  She lives in Leonē with the family and they only visit Falefa for “fa’alavelaves” (weddings, funerals, etc) and important family gatherings.  The family lives in Leonē to the present day.  
[16]	I take judicial notice of the fact that Leonē adjoins the village of Matautu-uta.  Further that the villages of Leonē, Faatoia, Matautu-uta, Matautu-tai and Vaiala are all located within the same area in eastern Apia and are part of what was traditionally referred to as ‘Matafagatele.’  In fact the main east coast road that separates Matautu-uta and Matautu-tai is on old road maps designated ‘Matafagatele Street’ (now divided into ‘Matautu Street’ and ‘Matafagatele Street’ on Government maps).
[17]	As noted by Lord Sumner in Commonwealth Shipping Representative v P. & O. Branch Service[1923] AC 191 (HL) at 212, judicial notice requires –
“that at the stage when evidence of material facts can be properly received, certain facts may be deemed to be established, although not proved by sworn testimony, or by the production, out of the proper custody, of documents, which speak for themselves.  Judicial notice refers to facts, which a judge can be called upon to receive and to act upon, either from his general knowledge of them, or from inquiries to be made by himself for his own information from sources to which it is proper for him to refer.”
Elsewhere in his judgment (page 211):
“My Lords, to require that a judge should affect a cloistered aloofness from the facts that every other man in court is fully aware of, and should insist on having proof on oath of what, as a man of the world, he knows already better than any witness can tell him, is a rule that may easily become pedantic and the futile.”  
The courts should not take a “detached and blindfold attitude”  towards events well known to all. 
[18]	See also Isaacs, J delivering the judgment of the High Court of Australia in Holland v Jones [1917] 23 CLR 149 at 153:
“The only guiding principle - apart from Statue - as to judicial notice which emerges from the various recorded cases, appears to be that wherever a fact is so generally known that every ordinary person may be reasonably presumed to be aware of it, the court “notices” it, either simpliciter if it is at once satisfied of the fact without more, or after such information or investigation as it considers reliable and necessary in order to eliminate any reasonable doubt.
The basic essential is that the fact is to be of a class that is so generally known as to give rise to the presumption that all persons are aware of it.  This excludes from the operation of judicial notice what are not “general” but “particular” facts….
A judge (sic) must, however, be fully satisfied of the fact, and must be cautious to see that no reasonable doubt exists.  To prevent doubt he may seek information in various ways, illustration of which are found in Taylor on Evidence, vol.1, pp.21-22.  His own knowledge may for this purpose, and not as evidence in the real sense, be relied on, as the Magistrate did in the present case.  And for this position authority is, if necessary, found in the judgment of Wills J. in R v Field (1). It is evident that no exhaustive list can be compiled of things that are open to judicial notice.  Illustrations of this truism will occur to everyone.”
[19]	There are other areas of the evidence where the court has taken judicial notice of certain facts, practices, customs and traditions.  This is a case where the court in assessing the veracity of the witnesses and their various assertions is compelled to consider not only applicable ‘fa’a-Samoa’ (“the Samoan way”) but also the social context and circumstances of everyday life in Samoa in which these matters of fact are said to reside.  
[20]	The plaintiffs in their submissions accept the court may have regard: 
“to matters of custom, or of accepted professional practice.….historical facts (and to some extent)  the Judges personal knowledge.
Importantly for this case, the court may take judicial notice of “ordinary human nature”).  Lord Sumner said in Weld-Blundell v Stephens [1920] AC 956 at 987, “we must take men as we find them, and we find them as often bad as good.” 
See paragraphs 50 to 53 of their submissions.
[21]	This echoes the views of the House of Lords in Keane v Mt. Vernon Colliery Co. Ltd [1933] AC 309 where their Lordships unanimously held that an arbitrator was entitled to use his own judicial knowledge of local conditions in arriving at his decision. Per Lord Buckmaster at page 317:
“In order to get rid of the question that the arbitrator has raised as to the admissibility of such knowledge, I may say that I think that, properly applied, and within reasonable limits, he was entitled to use it.  To hold otherwise would involve that a number of witnesses would have to be called in order to bring under judicial notice by legal proof facts within the common knowledge of everyone in the district.  I see no objection to his having made his judicial experience in this respect available.”
Lord Warrington at page 337 expressed it in these terms:
“His finding was attacked because he took into account his judicial knowledge of local conditions.  But there is a series of decisions that an arbitrator in such cases is entitled if indeed he is not required to do as this arbitrator has done.  It is only necessary to refer to the judgment of Fletcher Moulton L.J. in Roberts & Ruthven v Hall and of Scrutton L.J. in Pearl v Bolckow, Vaughan & Co. I have never heard this principle questioned, and I entirely agree with Fletcher Moulton L.J. and Scrutton L.J. that to require, as a matter of principle, evidence in such cases and to exclude the judge’s knowledge and experience would be a positive misfortune as tending to increase expense and delay.” 
Similarly Lord Parker, Chief Justice in Ingram v Percival [1968] 1 All ER 657, 659:
“Accordingly, on the view I take of this case, the result depends on whether the justices were entitled to make use of the knowledge which they said that they had.  In my judgment they were fully entitled to do so.  It has always been recognized that justices may and should – after all, they are local justices – take into consideration matters which they know of their own knowledge, and particularly matters in regard to the locality.”
These principles have been applied in New Zealand: see for example Denton v Auckland City [1969] NZLR 256 and generally Cross on Evidence 7th New Zealand ed page 183 et seq.
Book ‘A’
[22]	Kolopa’s evidence is the books in question both Book ‘A’ and Book ‘B’ represent records kept by her and her mother-in-law Gagau relating to family genealogies and other matters.  Book ‘A’ is based on Gagaus old book destroyed in the floods of Easter 1989. It contains notations by both her and Gagau and in her case, based on information supplied by Gagau.  There was some suggestion Book ‘A’ also contains material provided by Gagaus father Fuimaono Koli but I am unable to determine from the evidence or  Book ‘A’ specifically where or in relation to what.  I am however satisfied Book ‘A’ contains notations made by both Gagau and Kolopa.  Kolopas further evidence was the book was stored by her on instructions from Gagau and was preserved in good condition as she kept it over the years securely wrapped in a pillow-case at the bottom of either her dressing table or her “pusa-lavalava” (clothes chest).
[23]	The two most significant aspects of Book ‘A’ from the plaintiffs point of view is firstly it contains a list of Fuimaono title holders of the family in Falefa and in Uafato, a village in the neighbouring district of Fagaloa. That list includes the notation that the fourteenth title-holder was “Fuimaono Lafoia of Falefa (Rarotonga)”: annexure KT-1 to Kolopas affidavit Exhibit “P-22” for the plaintiffs.
[24]	Secondly it records the genealogy of the Aiga Sa-Malietoa (Malietoa Family) which is the paternal line of the descendants of Vailiili.  It also shows the ancestry of Gagau the “author” of Book ‘A’: Exhibit “P-12” for the plaintiffs.
Book ‘B’
[25]	Kolopas evidence is Book ‘B’ was also a collaborative effort but this time between herself, her husbands brothers wife Iutita and their mutual mother-in-law Gagau.  The Book is styled the ‘Fuimaono Family Book’ suggesting the book is of matters pertaining to the family Sā-Fuimaono.  It contains writings some in her hand, some in Iutitas hand and some in Gagaus hand. 
[26]	Kolopa said the Book was written for Fuimaono Luka the brother of the original plaintiff and the current holder of the family Fuimaono title.  This cannot be correct as the Book has all the hallmarks of a general family record similar to Book ‘A’.  But I accept the book was given as a gift from Gagau to Fuimaono Luka on or about 23 March 1998 before his “saofai” (conferral ceremony) for the title Fuimaono on 09 September 1998.  This is evidenced by the entry at the bottom of the first page:
“Mo Luka Fuimaono
Meaalofa mo outou aua le aiga mo le lumanai
Alofa atu o si ou tina
Gagau Fuimaono Koli
Apia, Leonē, 23 March 1998.”
(For Luka Fuimaono
A gift for you for the sake of the future of the family
With love from your mother 
Gagau Fuimaono Koli
Apia, Leonē, 23 March 1998.)
[27]	There was evidence the relationship between Gagau and Fuimaono Luka was close and that she regarded him as her “son.”  Fuimaono Luka in his evidence says at page 26:
“Question:	did you have a good relationship with Gagau?
Answer:	ia e alofa tele Gatau ia a’u
Question: 	do you a lady called Kolopa?
Answer:	ia o lea lava
Question:	and do you remember them giving you a present when you were bestowed the title of Fuimaono?
Answer:	na tuuina mai le api, o le api lea o tusitusiga o faamaumauga, fai mai o lana meaalofa lena ia te a’u i le taimi lea, o le gafa o le aiga.
Question:	do you read very much Fuimaono?
Answer:	leai
Question:	so what happened when you got this book?
Answer:	na o le tilotilo lava iai ise taimi puupuu, e le fiafia tele lo’u olaga i nei mea o le faitau o ni tusi ma ni mea faapena.
Question:	did somebody look after the book for you?
Answer:	na vaai e le loomatua ma tamaiti, le ma fanau.
Question:	what do you understand that book to be contained?
Answer:	a faitau mai na pau a lena, o a’u ou te le maitaua, ae fai mai o tala i gafa o le aiga, pei o le mea lena.”
It appears from this that sadly, Fuimaono Luka does not seem to regard the contents of the Book as useful or important.
[28]	The plaintiffs place much value on Book ‘B’ as it contains several references to the Rarotongan ‘Keliki.’  In particular:
(i)	the second page of the Book which lists the Fuimaono title-holders including ‘F.Lafoia I’ as the holder before Fuimaono Koli, Gagaus father: Exhibit “P-16” for the plaintiffs; and
(ii)	the fourth page of the Book which sets out the genealogy of Faaluaumeke and her sister Vailiili and refers to the union of ‘Keliki’ the Rarotongan and Faaluaumeke from which issued Lafoia who held the title Fuimaono of Falefa: Exhibit “P-18” for plaintiffs. Copy is at annexure KT-2 of Exhibit “P-22.” This assertion is repeated in other pages of the Book: see Exhibits “P-20” and “P-21.”
[29]	They also argue Book ‘B’ is based on older books kept by Gagaus father Fuimaono Koli.  This is referred to in an excerpt produced as Exhibit “P-19” for the plaintiffs which states:
“O nei mea uma o lo’o tusia i tusi tetele a lo’u tama o Fuimaono Koli.” 
(All these things are written in the big books belonging to my father Fuimaono Koli).
[30]	Kolis books also appear to be referenced at the bottom of the page numbered 33 in Book ‘B’ which has this notation in Gagau’s hand:
“Na si’i mai i tusi 1900, 1901, 1902 e o’o mai i le 1993” 
(Taken from the books of 1900, 1901, 1902 up until 1993).
[31]	No evidence was offered  as to the fate of Fuimaono Kolis books and records.  Other than an indication from Kolopa in cross examination that they have been destroyed (“faatamaia”).
Analysis
[32]	I have grave concerns about the authenticity and reliability of these Family Books.  Firstly, there is no reference in either Book to the parentage or origins of ‘Keliki’ other than the notation that he was “Rarotongan.”  No mention of a village or place of residence or how he came to be in Falefa.  Certainly no mention that he was from Apia or that his mother was the daughter of a high ranking chief of Moataa in Apia (a fact not disputed by the plaintiffs).  Compare this to the lineages and descriptions of other males married into the family (“usuga”)  as recorded in the Family Books.  In addition there is no mention of what became of ‘Keliki’ in particular when or why he left Falefa and his wife and son.
[33]	Secondly, these are not records kept by the line of Faaluaumeke.  They were compiled and kept by the descendants of the branch of her sister Vailiili.  They have been handed down from cousin to cousin and no-one of Faaluaumekes branch appears to have knowledge of these matters.  I acknowledge Fuimaono Luka the current holder of the Fuimaono title is a descendant of Faaluaumeke but he does not seem to have much familiarity or regard for the Books or their contents.
[34]	Thirdly these are records compiled and kept by Gagaus daughters-in-law, initially Kolopa and subsequently Kolopa and Iutita.  According to “P-22”, Kolopas husband Asofa had sisters.  Gagau also had daughters by her other three unions, Asofa’s father Tapumanaia being the fourth union.  No explanation emerges from the evidence as to why such precious family information was entrusted to “outsiders”.  This is unusual in the Samoan custom and tradition.
 [35]	Fourthly the Books are not the original records.  They are according to the evidence copies of the “tusi tetele” of Fuimaono Koli.  The reference in Book ‘B’ to “1900,1901 and 1902” suggest these existed prior to  the birth of Fuimaono Koli on 27 August 1896.  The evidence does not indicate who compiled these earlier Books and from what, or how or when they came into the possession of Fuimaono Koli.  The question also arises as to how much personal knowledge Fuimaono Koli would have of the affairs of his aunt Faaluaumeke and her liaisons.  And how much of this he imparted and to whom before these Books found their way into the hands of Gagau.
 [36]	The dangers of misrecording and misinterpretation of oral history cannot be under-stated.  These are not akin to a “carefully curated family history” recorded in the “family bible in the English tradition” as submitted by the plaintiffs.  They are second and third hand recordings of information in long destroyed books and from at least two generations past concerning the husband of an auntie of the supposed original recorder.  They are not notations by Fuimaono Koli in a family book of the kind contemplated by Lord Eldon in Whitelocke v Baker (1807) 13 Ves 511; neither are they comparable for example to the “Burns declaration” in Re Simpson [1984] 1 NZLR 738.  They are recordings made many many years later by Gagau who had no personal knowledge of such matters considering she was, according to the plaintiffs case, about 4 years old when Fuimaono Koli died in or about 1936.
 [37]	I am also disturbed by a clear contradiction between Gagaus Book ‘A’ and Book ‘B’ on important aspects of the Fuimaono title.  According to Book ‘A’ (see Annexure KT-1 of “P-22”) there were four (4) Fuimaono title-holders in the village of Uafato: the second Fuimaono - Fuimaono Tuimalatu; the fifth Fuimaono - Fuimaono the son of Leutele Asini; the fifteenth Fuimaono - Fuimaono Laupua and the seventeenth Fuimaono - Fuimaono Foketi.  The remaining sixteen (16) held the title in the village of Falefa.  However according to Book ‘B’ and the corrections communicated to Kolopa by Gagau, only the last six (6) Fuimaono title-holders were from Falefa.  The previous fourteen (14) were from Uafato.  The six includes ‘F. Lafoia I’ but this time, without reference to his being a Rarotongan.
 [38]	If the original entries represent Fuimaono Kolis listing as recorded in Book ‘A’, then Gagau has altered that list by increasing the number of Uafato title-holders from four (4) to fourteen (14) and decreasing the number of Falefa Fuimaonos from sixteen (16) to only the last six (6) holders.  Her purpose is unclear but the result is she has significantly altered the lineage and therefore the genealogy of the Sā Fuimaono family in both villages.  If the original entries are incorrect then she has cast doubt on the accuracy of her fathers records.  Although it is difficult to see how her information concerning such matters could be better and more reliable than her fathers.  Either way, it does not bode well for the credibility of Gagau and her Family Books.  
 [39]	Also disconcerting is the notation below the list of the Falefa Fuimaonos, a notation which was not altered by Gagau:
“Vaai o le mea na e sesē e leai ni tagata faapea i Falefa o Fuimaono uma i lalo i Uafato. Tau na tuu atu ai pea sei tou vaai iai.”
(Note the records are wrong, there are no persons like this in Falefa, they are all Fuimaonos from down in Uafato.  But these are placed here anyway for you to see).
Apart from the problem referred to above, there would seem little point in including such misinformation other than to support the suggestion that it could prove useful at some stage to someone for some purpose.  A sort of covering all the bases type of genealogical approach. 
 [40]	This highlights a sad but common reality in this country.  Authors and custodians of family genealogies have been known to insert untrue details and material in an effort to broaden the scope of a genealogy for various purposes including incorporating persons and particulars of persons who are not in fact part of the family.  A relatively simple exercise for those with knowledge in this area as genealogies especially the older ones are by and large orally handed down from one generation to the next.  Such is the controversy engendered in such matters that it frequently results in litigation in the Land and Titles Court. 
[41]	This very problem is recognized by Gagau.  In her own hand on the page numbered 27 in Book ‘B’ where she exhorts her family to be careful about custody and access to the Books, she says:
“Faitau lelei ma maitau i lea tagata ma lea tagata a fa’apea e alu atu seisi e fia fai sana tala i le api aua le avea i ai.  Fai i ai e alu toe sau ai ae tago oe e tusi i ai se pepa.  Leaga o le isi tagata e ala ona alu atu o lona fia iloa.  Ona alu lea fai ai sona gafa fa’apipi’i.  Pe faaopoopo.  Ae tatou te le suli faatasi.”
To the extent that she even warns Fuimaono Luka about his own wife:
“Luka le api lenā e te poto ai i mea o lo tatou aiga.  Alofa ia Malia.  Ua na o oulua. Ae aua le avea i ai” (emphasis mine).
(Luka this is the book so you may know the affairs of our family. Love Malia. There is only the two of you. But do not give it to her – emphasis mine).
This coming from the same “mother”-in-law who the plaintiffs say shared information with and entrusted the Family Books to her daughters-in-law.
Church records
[42]	The plaintiffs evidence in this regard consists of: 
(i)	from the records of the Roman Catholic Archdiocese of Samoa-Apia, the marriage certificate of Fuimaono Valeriano Lafoia and the baptismal certificate of Maria Etevise, his daughter and mother of Fuimaono Luka and the original plaintiff; and
(ii)	a letter from the Congregational Christian Church of Falefa confirming the death of Fuimaono Lafoia at Falefa on 29 September 1943.
[43]	The marriage certificate produced as Exhibit “P-1” for the plaintiffs purports to record the marriage of “Valeriano Lafoia of Sogi” son of “Tealiti and Faaluaumeke” to Maria Fonoti of Taufusi on 17 December 1912 at Taufusi.  The evidence of Father Fereti Tautunu current custodian of the Church Archives is “P-1” is based on the Marriage Register for that period and copies of the relevant entry were produced as Exhibit “P-1(a)”.  The latter shows some editing of the relevant entry in particular the letters “e” and “a” in the name ‘Tealiti’.  Similar changes have been made to the names of the brides parents.  The purpose for such editing was not explained neither was it clear as to having been done by whom and when.  The records are based on information supplied but again it is not known by whom or when.
[44]	Also produced was the baptismal certificate of Maria Etevise the mother of Fuimaono Luka: Exhibit “P-2” for the plaintiffs.  That shows “Lafoia Tealiki Fuimaono” as Marias father.  There did not seem to be much dispute about this but who supplied the information and when is again unknown.
[45]	The other document the plaintiffs rely on is a letter dated 02 September 2005 from Reverend Elder Faatauoloa Maualaivao of the Congregational Christian Church in Falefa confirming that “Fuimaono Lafoia (also known as Fui) ……… died on  September 29th, 1943 according to our church records”: Exhibit “P-9” for the plaintiffs.  This was produced into evidence by its writer who testified it is based on what is contained in the Church “Api o le galuega” (Church Work Book).  A copy of the relevant entry in the Book shows one “Fui” who died on “29 September 1943”: Exhibit “P-10” for the plaintiffs.  He said this was Fuimaono Lafoia because he was the only Fuimaono title-holder at the time and “Fui” is short for “Fuimaono”.  However he also said this information was given to him by the descendants of the plaintiffs when they came to him requesting this certification in 2005.  He did not know the gentleman in question or have personal knowledge of these particulars as he was not alive in 1943.
Analysis
[46]	There is no question these documents are admissible under Part 2 of the Evidence Act 2015.  They are a “business record” as “business” pursuant to section 9(1) includes an “organization or society” and “business record” means “a document:
(a) 	that is made - 
(i)	to comply with a duty; or 
(ii)	in the course of a business and as a record or part of a record of that business; and 
(b)	that is made from information supplied directly or indirectly by a person who had, or may reasonably be supposed by the court to have had, personal knowledge of the maters dealt with in the information he or she supplied.”
[47]	Churches are for these purposes “businesses” and their records are “business records.”  I am also satisfied the person who supplied the information is now deceased and is accordingly unavailable within the terms of section 11(a).
[48]	The issue is whether the Catholic Church records can be safely relied upon given the alteration to the marriage certificate entry and the fact that the scource of such information is unknown.  As for the Congregational Christian Church certification, this is dubious certainly questionable at best, given that the original entry related to a “Fui” and the evidence that it was the plaintiffs descendants who came in 2005 with the alias “Fuimaono Lafoia.”
Family statements
[49]	The evidence here comprises inter alia the testimony of Fuimaono Luka and his wife Sose that Fuimaono Luka was often teased about being of Rarotongan heritage.  Attributable they say to his being descended from Fuimaono Lafoia and Teariki.  Falefa villagers also filed affidavits and statements admitted by consent and without cross-examination referring to Lafoias reputation in the village as being from another part of the Pacific, in particular Emile Luamanu who lived next door to Lafoia who said (see Exhibit “P-29” for the plaintiffs): 
“When I was young I remembered hearing people of Falefa calling him the Lalotoga (Rarotongan). I asked my mother why people of Falefa call him Lalotoga and she said because Lafoia’s father is not a Samoan he’s from Lalotoga (Rarotonga).  Even my mother and her family call his children Lalotoga (Rarotonga).  I even heard them call Lafoia by the name Liki the Rarotongan.  My mother said Liki is Lafoias fathers name.  She said the full name is hard to pronounce so they just shortened it to Liki.  Even after Lafoias death I still heard people of Falefa calling Etevises children Rarotongans.”
Analysis
[50]	This is strong evidence of pedigree.  As observed early on in the common law:
“General rights are naturally talked of in the neighbourhood; and family transactions among the relations of the parties.  Therefore, what is thus dropped in conversation upon such subjects, may be presumed to be true.” (per Lord Mansfield in the Berkley Peerage Case (1811) 4 Camp 401, 416).
[51]	This approach was adopted by the New Zealand Court of Appeal in Re Simpson [1984] 1 NZLR 738 which relied upon - 
“the powerful opinion of Wigmore on Evidence that the underlying theory must be that the constant (though casual) mention and discussion of important family affairs, whether of the present or of the past generations, puts it in the power of members of the family circle to be fully acquainted with the original personal knowledge and the consequent tradition on the subject; and that those members will therefore know, as well as anyone can be expected to know, the facts of the matter.  And so Wigmore concludes in para 1487 that, while it is not necessary to maintain that the statements of any friend are always admissible, it is desirable to disavow any limitation which would exclude the statements of one whose intimacy with the family could leave no doubt as to his sufficient knowledge, equally with the family members, of the facts of the family history” (page 745 of the judgment).
[52]	The court went on to hold:
“Hearsay evidence is admitted in pedigree cases because there would otherwise be a failure of justice in those inevitable situations where it is not possible to prove by living witnesses the relationships of past generations.  Gone are the days, if they ever existed in New Zealand, when it could reasonably be said that any relative necessarily has a greater interest in seeking information on the subject, a better opportunity for obtaining it and less reason for falsifying it.  In some cases the degree of intimacy and confidence subsisting between the declarant and the person in question may be far closer than it is between some relative in our mobile society.  We favour adopting the Wigmore test as best calculated to advance the interests of justice in this country.”
[53]	Villages in this country are typically not large communities physically or numerically.  Even smaller in 19th Century Samoa when there were fewer people.  New Zealand historical scources estimate the population in November 1918 when the Spanish Flu Panademic reached Samoa to be around 40,000.  In the turbulent times of the latter half of the 19th Century it would have been less.  Life in a Samoan village then as now is quite intimate and the social fabric being what it is, everyone literally knows everyone.  Knowledge of the familial ties and ancestry of ones neighbours and fellow villagers is an everyday reality of Samoan life from which there can be no escape!  
Discussion
[54]	It is trite law that he who brings a claim must prove it.  And that in civil cases the standard is proof based on a balance of probabilities.  In the words of  the eminent jurist when referring to the proof of a plaintiffs case:
“It must carry a reasonable degree of probability…….. If the evidence is such that the tribunal can say:” We think it more probable than not”, the burden is discharged, but if the probabilities are equal it is not.” (Denning, J in Miller v Minister of Pensions [1947] 2 All ER 372 at 373)
[55]	Furthermore and in relation to the particular matter at hand, viz proof of the genealogy of Fuimaono Lafoia:
“The burden of proof in the sense of establishing a case lies on a plaintiff if the fact alleged is an essential element in his cause of action, for example, if its existence is a condition precedent to his right to maintain the action”: Curry v Dempsey [1967] 2 NSWR 532 (FC).
[56]	It is necessary for the plaintiffs to establish two core matters: firstly that they are descended from Teariki the Rarotongan through his union with Faaluaumeke Fuimaono of Falefa. And secondly that Teariki the Rarotongan of Falefa is one and the same person as Teariki the Rarotongan landowner of Apia and brother to Lili and Tiresa.
[57]	As to the first question, I have already expressed reservations concerning the reliability of the evidence bearing in mind the relevant “circumstances” of the Family Books and Church records although not so much in relation to the evidence of pedigree.  Individually, each piece of evidence does not in my mind attain the level of proof necessary.  But when considered collectively, like the strands of rope in a cord of circumstantial evidence, a clearer evidentiary picture emerges.  As Lord Cairns L.C. aptly stated in the Belhaven and Stenton Peerage Case (1875) 1 AC 278 at 279:
“My Lords, in dealing with circumstantial evidence, we have to consider the weight which is to be given to the united force of all the circumstances put together.  You may have a ray of light so feeble that by itself it will do little to elucidate a dark corner.  But on the other hand, you may have a number of rays, each of them insufficient, but all converging and brought to bear upon the same point, and, when united, producing a body of illumination which will clear away the darkness which you are endeavouring to dispel.”
[58]	Viewed from this perspective and according particular weight to the independent pedigree evidence,  I am satisfied there was more probably than not a Rarotongan named ‘Keliki’ also known as ‘Teariki’  who by his union with   Faaluaumeke of the Sa-Fuimaono family of Falefa produced a son Valeriano Lafoia who held the title Fuimaono in the village of Falefa.  Further that the plaintiffs are descended from the said Fuimaono Lafoia.
[59]	For these purposes I am not persuaded by the defendants argument that the variation in names is a reference to different individuals.  In this country, unlike Rarotonga whose language does not contain the letter “l”, it is common to interchange the “r” and “l” and the “T” and “K”.  So that “Teariki” can become “Tealiti” and “Teleki” can become “Keleki” or “Keleti”.  Ditto with the “e” and “i”.  The Samoan penchant for invoking variants of a persons name or the dreaded “aka” is a recognized fact and the bane of many a travel agent and immigration officer.  The defendants own documents display this pattern beginning with the will of Tearikis father Apai devising his holdings “unto my son Teleki” but known to the defendants as ‘Teariki’.  See also the evidence of the very convincing kaumatua Tekeu Emil Framhein, J.P. accepted by the plaintiffs as “a witness of truth” and the various Cook Islands documents.  There is nothing in this argument and if judicial notice of the above be required, I do so duly note.
[60]	The second core issue is far cloudier and more contentious: whether ‘Teariki’ of Falefa is ‘Teariki’ the Apia landowner.  The plaintiffs here argue that it would be “an extraordinary coincidence” if there were two such Rarotongans living in Samoa with Samoan wives, owning land in Apia and  leaving Samoa permanently around 1894, the undisputed date deposed to by Framhein when Teariki returned to Rarotonga to succeed to the high-ranking Apai Mataiapo tribal title he now holds.  This is perhaps mis-interpreting the position as there is no evidence Teariki of Falefa owned land in Apia, or as to when or why he left Falefa or that Teariki of Apia had a wife/partner.  What is clear is only one Teariki landed in Rarotonga, the one who came with Rore/Lole and ancestor of the third defendant.
[61]	In any event, the presence of Rarotogans in Samoa is not as improbable as the plaintiffs suggest.  Historical records such as exist, which I take judicial notice of, shows their presence in this country beginning with the arrival in 1830 of the pioneering London Missionary Society (“LMS”) missionary John Williams and “eight Tahitian and Rarotongan teachers”  on the ‘Messenger of Peace’ to convert Samoa to Christianity.  Williams was then based in Rarotonga where he built his crusading vessel and he made subsequent trips to Samoa including in 1832 “in the company of a chief from Rarotonga and a teacher for the people of Manono”.  There is some suggestion this was the Chief Ariki or “ King” of the island of Rarotonga.  See generally on the topic ‘Lagaga: A Short History of Western Samoa’ pp. 55-60 by Malama Meleisea (1987) which draws upon various scources of information (see Appendix 1 thereof).
[62]	There are other scattered references to Rarotogans living in Samoa in the late 1800’s.  Thus when writing about his experiences in trying to recover the safe of the USS ‘Vandalia’ sunk in Apia Harbour by the Great Hurricane of 1889, author and prominent local businessman H. J. Moors wrote the following as part of a series of articles published between 13 June 1924 and 02 April 1926 in the then only newspaper in Samoa, the Samoa Times: these passages are reproduced in full for historical interest, context and significance:
“20 March 1925
The Hurricane
I shall not attempt to retell the story of the hurricane of 1889 which Mr Stevenson has handled so graphically, but I may add a few small particulars which may be of interest, and which have not so far been mentioned.
The morning before the fateful day opened with a strong gale, blowing down from the mountains, over which heavy dark clouds hung like a funeral pall.  Some of the gusts were exceedingly powerful, but they contained no rain, and great banks of scud passed over us going north-west.  By eight o’clock the wind already commenced to lighten up, and by nine the sun was out; Apia harbor was as smooth as a small lake; and the glass, which had been low, had risen and was moving upward.  The warships were reassured and gave extensive liberty to their men, who soon filled the streets……
About 4p.m. the glass began a downward course about this time, although it was almost quite calm, for it is evident we were just then in the very calm centre of the hurricane, without ourselves knowing it.  But by 5 p.m the threatening became so ominous that all the ships set their recall signals, and their men hastened abroad that were ashore on liberty that day, but I think not.  The glass continued its downward course, and the ships should have gone out any time before 8 p.m.  The appearance of the skies was so terrible before dark, that I closed up our store early and had heavy battens nailed outside the doors and windows facing the seaside.  I do not remember any thunder or lightning or rain before the gale was piping strong about nine at night; from ten forward the gusts were tremendous, coming from E.N.E. From a convenient position indoors through the  blinds, I watched the dancing lights of the warships then tugging at their anchors, and trying to avoid one another.  At times, the whole body of my store building seemed lifted off it foundations and would then recover itself with a great bump.  The night was indeed a fearful one, and I was afraid that daylight must disclose numerous disasters.
As soon as there was light enough to see, I went out by the back way and came around under the lee of my building, so that I might view the harbor which was in a wild yeasty foam.  The warships seemed all in place, but wildly tempest tossed.  The ‘Vandalia’ had lost her boats and her funnel, and the headgear of the ‘Olga’ was damaged by a collision.  The ship in most immediate danger was the ‘Eber’, right in front of my premises, not thirty fathoms off the reef, which was ‘breaking’ tremendously.  This warship had five anchors down and was steaming full speed ahead, to relieve her ground tackle. Some officers of the ‘Nipsic’ had rented two cottages from me, and were sleeping in them, - I aroused them to assist in case the ‘Eber’ did come ashore, for we might possibly aid her struggling sailors.  We had a short wharf in front of my store, and I got out a supply of ropes and we braced one another as we stood awaiting the event: a terrible catastrophe instantly expected.”
“27 March 1925
I did not see the ‘Adler’ come ashore, as I was too busily engaged with the ‘Nipsic’ and ‘Vandalia’ disaster, but I had a good view of the remarkable escape of the ‘Calliope’ – about 2 p.m. This fine ship, the most modern construction in the harbor, had all her anchors down, and was steaming to relieve them, until she got so close in towards the reef (just eastward of where the ‘Adler’ now lies) that we momentarily expected to see her strike.  It did not seem as though anything could save her but some act of Almighty Grace, which indeed must have been the power which stayed a great tragedy. While looking for her almost immediate destruction, we saw her funnel belch dense volumes of black smoke (I think they were feeding oil or fat into the furnaces), and someone noticed that she appeared to move forward.  She really did do so, but although I got a line on her bows by getting two trees in range I could barely perceive her first movements.  When we were sure that she was actually moving ahead everyone was greatly relieved, and many silent thanks were inwardly uttered.  The officers and men of this gallant ship had been in port for some weeks, and had numerous friends ashore, who were very anxious.  We could still dimly see the ole ‘Trenton’ quite far out in the mist and smoke, and the ‘Calliope’ made towards her and safety.  The wild hurly-burly of the seas drowned all other noises, and none of us heard the cheers of the ‘Trenton’s’ crew, as the gallant Britisher passed them, and was soon out of sight in the dense murk of the gale.”
 [63]	And in the aftermath of the Hurricane, the relevant part: 
“The ‘Nipsic’ and ‘Olga’ were easily hauled off the beach and anchored.  Tenders were called, for the raising of the ‘Vandalia’s’ safe, and my offer to get it up for 10 percent of its contents was accepted; and nearly cost me my life.  No one could say how much there was in the safe, as both the paymaster and clerk were drowned.  As the ‘Vandalia’ lay at low tide, there was about one foot of water above her deck hatch combings and it was necessary to dive into the bowels of the ship, enter the wardroom and get into the Paymaster office, where the safe was secured to the floor.  No diving dress was used on this job, but I assembled about a dozen reputed Rarotongans and Manihikians, who for $5 per day were willing to do their best, and I must say they rendered almost incredible services.”
(‘Manihiki’ is an atoll in the Northern Cook Islands famous for the quality of its black pearls. ‘Rarotonga’ is an island in the Southern Cooks in which is situated Avarua the capital of the Islands).
[64]	The above articles are published in book form in ‘Some Recollections of Early Samoa’ by H. J. Moors (1986).  Which also refers at page 49 (article of 12 December 1924) to ‘Old Tekori’, a retired Rarotogan parson who served as unofficial aide-de-camp to King Malietoa Laupepa.  And contains a reference on page 7 (article of 04 July 1924) to the absence of buildings on the seaward side of  Main Beach Road in Apia in 1876 “except several tumbledown native constructions and a Rarotogan Church of small size.”  An indication there were either Rarotogan builders resident in Apia at the time (i.e. it was a church built by Rarotogans) or there existed within Apia a Rarotogan community large enough to warrant their own Church; or both.  In this background, it is reasonable to conclude there were a number of Rarotogan men living in Samoa in the late 1800’s. 
[65]	It is also relevant to consider Framheins evidence that the name ‘Teariki’ or ‘Te Ariki’ translates to “the chief”: paragraph 16 of his affidavit Exhibit “D-9” for the defendants.  Therein he says: 
“It is not a title.  It is not a rank.  It is just a name.”  
Further and more significantly “it is a common name in Rarotonga” (emphasis mine).
[66]	Bearing these in mind, I have come to the conclusion it is entirely possible and not necessarily extraordinary that there would be living in late 19th Century Samoa two Rarotongans bearing the name Teariki or one or other of its derivatives.  I cannot accept that is an improbable coincidence.  
[67]	There are also personal identifying characteristics which support the conclusion that these were two different men.   These emerge from Framheins evidence and were not challenged by the plaintiffs.  The first from paragraphs 20 and 21 of “D-9” which note that Teariki of Apia had a “Samoan tattoo or tatau.”  Amplified upon in paragraph 19 of Framheins first affidavit annexed to “D-9” as being one from the “waist down to below his knees.” 
[68]	This is the description of a traditional Samoan “pe’a” tattooed on young Samoan males as a rite of passage to manhood.  It is conspicuous and is often displayed on occasions ceremonial and social as a mark of courage and pride.  It is not designed or intended to be covered up and the “aumaga” or untitled group of men in a village are required to oil and expose it when undertaking traditional duties or participating in customary events and undertakings for example at weddings, funerals, “saofai”, “ta’alolo” and events involving the district (“itumalo”) or other villages.  Those who have such an adornment are well known in any community, certainly within the family, the village and surrounding areas.  This would be especially notable if carried by a non-Samoan.  There is no indication anywhere in the evidence adduced by the plaintiffs that Teariki of Falefa possessed such a tattoo.
[69]	I questioned Mr Framhein about this and on page 19 of his evidence asked him:
“Question:	its very distinctive isn’t it?
Answer:	yeah
Question:	and you certainly noticed it as a young person?
Answer:	correct, you can’t miss it” (emphasis mine).
[70]	The second identifying feature noted by Framhein was Tearikis skill as a carver: see paragraph 20 of “D-9” and Framheins first affidavit which testifies to how he “carved canoes and sold them at the market on the waterfront by Avarua Wharf”.  Again there is no evidence from the plaintiffs family or Falefa inhabitants that Teariki of Falefa possessed such qualities, which in 1800’s  Samoa would have been unique and of significant commercial value.
[71]	The plaintiffs have invited the court to find that Teariki of Falefa and Apia either left Samoa ignorant of the fact that Faaluaumeke was carrying his child or that he deliberately abandoned them.  They accept however that Teariki arrived in Rarotonga in 1894 absent Faaluaumeke but with 3 year old ‘Rore’ also known as ‘Lole’, daughter of his sister Tiresa as his feeding child.  ‘Rore’ or ‘Lole’ is Framheins grandmother.  For this scenario to hold true, the evidence must show or at least support the reasonable inference that Teariki, after going to live with Faaluaumeke in Falefa, returned childless and wifeless to his family in Apia, uplifted Lole as his feeding or adopted child, the two then leaving permanently for Rarotonga and his new life.  
[72]	I discount the suggestion that Teariki would abandon either a pregnant Faaluaumeke or his son Lafoia and instead prefer to take to Rarotonga his sisters daughter.  That makes no sense particularly in the traditional patriarchal societies then existing and to a large extent continuant today in Samoa and Rarotonga.  There is no reason appearing from the evidence why Teariki would take such drastic action in defiance of custom.  
[73]	Furthermore, a child was important to Teariki.  Hence his taking Lole as his feeding child.  Perhaps as his heir for Rarotongan custom is more disposed to females holding Ariki titles than that of this country.  Or perhaps as a reminder of his Samoan heritage.  Either way, I have no doubt Teariki would have taken with him the pregnant Faaluaumeke or his male son Lafoia.
[74]	Mention is made in the plaintiffs submissions of Tearikis acknowledgement in correspondence that he had a wife. This is found in the notation on the second page of a letter dated 05 August 1931 from Messrs Wynyard Wilson Baxter and Andrews, Solicitors of Auckland, New Zealand to the Cook Islands Administration Office enquiring on behalf of the third defendants ancestor about Teariki: Exhibit “P-4” for the plaintiffs.  The handwritten note reads
“Wife died 40 years ago – not remarried since.” 
[75]	The response from the Administrator is Exhibit “P-5” for the plaintiffs which says:
“Teleki informed me that his wife died very many years ago, and that there were no issue, and that he has not remarried again.  He has, therefore, no children of his own, but he adopted Rore as mentioned in my letter to the Public Trustee.” 
The plaintiffs rely on this as evidence of Tearikis relationship with Faaluaumeke.
[76]	The problem with this piece of evidence is it does not refer either specifically or generally to a woman from Falefa or Samoa named Faaluaumeke.  It speaks of Tearikis marriage to a woman but of what nationality and whether in Samoa or Rarotonga it does not say.  On its own, the evidence is neutral and does not greatly assist the plaintiffs.
[77]	The unknown heir would seem the most realistic argument for the plaintiffs.  The difficulty with that is twofold: firstly having lived and co-habited with Faaluaumeke in Falefa for presumably a period of time, there is no apparent explanation why Teariki would subsequently rule her out of contention for his trip to Rarotonga to take up the premier title of his family.  She was of a chiefly line with links to the Malietoa title, one of the four paramount titles of Samoa and whose holder in 1894 was Malietoa Laupepa, crowned King of Samoa by the ruling colonial powers pursuant to the Final Act of the Conference of Berlin on Samoan Affairs (the ‘Berlin Act’ 1889).  Reason and status would decree her inclusion not exclusion.
[78]	Secondly, once Faaluaumeke gave birth, no effort was made by her or family members to seek out the whereabouts of the father or his family.  The records and other evidence indicate she well knew the identity of the father.  It is inconceivable that Teariki would not have disclosed or mentioned his roots and the lineage of his Samoan family in Apia. A family that through his mother holds the Tamapua title, one of the paramount titles of the Fuaiupolu District of Vaiala, Matafagatele and Magiagi.  A connection any Samoan family would be keen to establish and nurture. 
[79]	It is clear from Books ‘A’ and ‘B’  Gagau the family historian went to great lengths to collate and document family ties to other high-ranking and strategically important titles.  Thus for example “P-12” in relation to the Malietoa title and “P-13” in relation to the Afamasaga title of Apia.  The Books are littered with references to others.  These were of obvious importance to the family as they are to every Samoan family.  Yet the evidence is clear.  The plaintiffs line claim ignorance of the existence of the family of Teariki of Apia for almost 100 years.  There is also no reference in Gagaus Family Books to any connection to the Tamapua title. A significant omission.
[80]	Which leads to an attempt to try and unravel another mystery that will become of relevance  later.  The evidence of Kolopa is that her husbands family including Gagau emigrated to Leonē in Apia some 30 or 40 years past, i.e. sometime in the 1960’s or 1970’s.  But this is the extent of Kolopas limited knowledge based on her time living within the family.  The evidence of the older Tulai Patolo a matai of Falefa whose affidavit was tendered by consent is that in 1939, he moved to Apia to attend Marist Brothers School in Mulivai living behind the School in the centre of town.  At that time he would sometimes see “Fuimaono Lafoia when they came to Apia”: paragraph 5 of Exhibit “P-23” for the plaintiffs.  On those visits Lafoia would undoubtedly stay with his Apia family, that of his first cousin in Leonē, Fuimaono Koli Gagaus father.  
[81]	Patolo also reminds that after the death of his first wife Maria, Lafoia remarried Malaea from the village of Vaimoso in Apia and that “he then lived in Apia, somewhere in Faatoia.”  Leonē adjoins the village of Faatoia.  The affidavit evidence of Fuimaono Luka is that he lived in Leonē with Fuimaono Lafoia and Malaea.  He says Lafoia owned the Leonē property.  Further, that Malaea talked about his grandfathers Matautu land but as this evidence is not supported by any other witness for the plaintiffs, I give it little weight.  Plainly however, Lafoia the Rarotongan from Falefa had a long association with Apia and the village of Leonē.
[82]	As noted, Leone adjoins the village of Matautu-uta.  The third defendants have for many decades according to the evidence and the legal descriptions of their lands inter alia occupied a large portion of the eastern (‘Lefoka’) and central (‘Tuvao’) part of Matautu-uta.  These lands front onto the main roads of the villages of Leonē and Matautu-uta.  Traversing these roads would mean continually passing the properties occupied by the third defendant family since at least about the 1920’s according to Public Trust Office records.
[83]	Given that the villages of that era were smaller and Apia town was nowhere near the size of today, the plaintiffs claim that they had no contact or knowledge of the family of Teariki the Rarotogan landowner of Apia, specifically the Matautu-uta, Vaiala and Matafagatele area defies belief.    Because these villages and the village of Leonē are in the same district and are located in the same area.  Samoan society being what it is requires constant interaction between people and families not only within a village but with immediate neighbours and adjuncts. Moreso in the late 1800’s when people lived a more traditional life-style. These villages together form traditional districts commonly with inter-linking genealogies, cultural and other ties.  This does not take into account shared places of worship, employment, business and the such-like. 
[84]	Our present Head of State Tuiatua Tamasese Efi often epiphanises - “Samoa is not a country, it is a family.”  It is exceedingly difficult to accept that two families with a common ancestor from a foreign country can co-exist literally side-by-side in blissful ignorance of each other on every level for almost a century.  Especially considering Fuimaono Lafoias history in Apia and the fact that the so-called “author” of the plaintiffs Family Books and keeper of their genealogies lived in the adjoining village of Leonē for some 30 to 40 years.  Plus the fact that Gagaus father Fuimaono Koli was according to Kolopas affidavit, the “mayor of Apia” (paragraph 13 of “P-23”) and as such would have been well conversant with the inhabitants and affairs of his constituents and area.  Especially vis-a-viz foreigners.
[85]	I also struggle with the notion that persons living in close proximity to each other in this country would be unaware of potential links to persons or family owning and/or controlling pieces of prime freehold land in their area.  Perhaps the plaintiffs forefathers were naïve and ill-informed.  But, I very much doubt that given the evidence that this is a family who kept extensive family records handed down from generation to generation.  The plaintiffs case is Gagau was the latest in a long line of keepers of the family genealogy.  Such information is not amassed by non-participatory patrolling of the side-lines.  It is gleaned from full immersion in village, family and district affairs and the constant maintenance of traditional and customary links.  I am not persuaded the heirs of Faaluaumeke and Vailiili, in particular Fuimaono Lafoia who lived in Leonē with his second wife Malaea most probably on the same property as his first cousin Fuimaono Koli, and Gagau the diligent and dedicated record keeper, were ignorant of the existence of the family of Teariki the Rarotongan of Matautu-uta, Vaiala and Matafagatele.  
Conclusions
[86]	I have accordingly reached the following conclusions as to the facts:
(i)	I am satisfied from the preponderance of evidence in particular the independent pedigree evidence that there was more probably than not a Rarotongan named ‘Keliki’ aka ‘Teariki’ of Falefa who by his union with Faaluaumeke of the Sa-Fuimaono family of Falefa produced a son Valeriano Lafoia who held the title Fuimaono in the village of Falefa.  Further that the plaintiffs are descended from the said Fuimaono Lafoia.
(ii)	But the evidence does not satisfy me this was Teariki of Apia who possessed a full traditional Samoan tattoo (“pe’a”) and who was a skilled canoe carver.
(iii)	Neither did he abandon a pregnant Faaluaumeke or a son Lafoia in Falefa before leaving for Rarotonga with Rore as his feeding child.
(iv)	I am also satisfied that more probably than not the plaintiffs family knew about Teariki the Rarotongan man from Apia but did nothing to explore the possible link between him and Teariki of Falefa or otherwise bring this fact to the attention of the defendants until about 2005/2006 when the original plaintiff lodged with the first defendant a formal claim of ancestry.
[87]	It follows the plaintiffs have failed to establish a fundamental pre-requisite of their claim viz that they are descendants of Teariki the Apia landowner and entitled to share in his Estate.  But in case I am in error in this regard, I move on to consider the substantive defences raised by the defendants and for the sake of completeness the Counter-claim by the third defendant.  
The defence case
[88]	The facts relevant for these purposes are: on 29 August 1942 Teariki died in Rarotonga.  Leaving no wife, no issue and no will.  At the date of his death he was the registered owner inter alia of the lands variously described as ‘Lefoka’ (also known as the ‘Apia Park Land’) in Matafagatele an area of some 3 acres 2 roods 5 perches (3a.2r.5p) and ‘Lelepa’ a piece of land comprising 1 acre 1 rood 25 perches (1a.1r.25p) located in Vaiala.  To this was later formally added ‘Tuvao’ in Matautu-uta comprising some 8 acres 3 roods 9 perches (8a.3r.9p) pursuant to a decision of the Land Titles Investigation Commission dated 13 December 1973.  But the evidence is this too had been occupied by the third defendant family at all material times: see for example from the Bundle of Documents helpfully supplied by the plaintiffs as Numbers 23 and 24 correspondence dated 23 October 1959 from the first defendant to the Registrar of the Land and Titles Court and his reply dated 09 November 1959.
[89]	It is not disputed that by letter dated 01 November 1956, David (also known as ‘Keve’) Hunter the grandfather of the third defendant Tilafono David Hunter requested the first defendant to administer Tearikis Estate.  A statutory declaration of Family History was on 25 August 1958 filed by Tilafonos father Joseph Hunter and his cousin Tauvela Patu Hunter son of Tina the daughter of Lili, confirming Teariki died without issue but that his sisters were ‘Teleka’ also known as ‘Tiresa’, mother of Keve and others, and Lili who also had children.  In the case of the former, three children:  Rore who accompanied Teariki to Rarotonga, Keve and Fare.  For the latter, five children the eldest being the declarant Tauvela whose estate is second defendant in these proceedings.  The Declaration also referred to brothers who died without issue.  
[90]	On 08 September 1958 the first defendant elected to administer the Estate and has over the years distributed portions of the Estate lands to individual members of the third defendant family.  For reasons that will become apparent it is not necessary to further investigate these distributions. Documents establishing these matters are in the afore-mentioned Bundle of Documents as well were produced by Assistant Public Trustee Paniani Vaa numbered 1-10 in the file Exhibit “D-1” for the defendants.
[91]	The first defendant maintains that in accordance with applicable statutory procedure, on 18 July 1958 a Notice to Creditors having claim on Tearikis Estate, in Samoan and in English (Numbers 11 and 12 of “D-1”), was published in the local ‘Press News’ and ‘Samoa Bulletin’.  This is evidenced by Exhibit “D-10” for the defendants being correspondence concerning other Estates referred to in the 18 July 1958 notice; see in particular letters dated 01 September 1958 from the Public Trustee to various persons concerning the estate of F.E. Haubold which say: 
“I attach hereto a copy of a notice calling on all creditors in the abovementioned estate to forward their claims duly certified as due and owing as at date of death of the deceased to the Samoan Public Trustee on or before 30th August, 1958.  This notice was published in the Press News and Samoa Bulletin on 18th July, 1958”.  
No response to the Notice in respect of Tearikis Estate was received from anyone other than the third defendants.
[92]	Vaas further evidence was administration of the Estate was delayed for various reasons, including internal disputes as to distribution within the third defendant family, resulting in a concerted effort in 2001 with the assistance of the Attorney Generals Office to settle all estates over 50 years old.  Consequently a further notice from the first defendant (Number 16 of “D-1”) was published in or about November 2001 requiring “all potential beneficiaries of the Estate of Teariki” to submit “evidential proof of their beneficial status on or before the …………….day of ………..2001” after which date the Estate would proceed to “be administered and distributed having regard only to those whose beneficial status have been proven.”  Exact dates of publication and expiry of the Notice are unclear.  But it was also published in the Cook Islands News as evidenced by 13 and 14 of “D-1”.  There is no evidence the plaintiffs responded to the Notices.
[93]	For these purposes I ignore the letter dated 10 April 1996 from Reverend Pio Field of Auckland, New Zealand as it appears from the other signatories to that correspondence it was on behalf of the heirs of Lili (Tuiala Tulepu and Mayo Hunter) and at least one heir (Tekeu Framhein) of Rore; and seems to relate specifically to the Tuvao land.  There is no indication the Reverend or any other party was representing the plaintiffs.
[94]	There would also have been publication by the Land Titles Investigation Commission of the 1973 Land Commission claim by the first defendant in respect of Tuvao as required by section 18(1) of the Land Titles Investigation Act 1966 which provides:
“The Commission:
shall give public notice of all claims (hereinafter called the advertised claims) and of the fact that any person desiring to object to any claim shall, within a period of 6 months after the first publication of the public notice of that claim, give notice in writing of his or her objection and pay the prescribed fee to the Secretary and give a copy of that notice to the claimant; and
may, on request by the claimant or when it appears to the Commission or the Chairperson thereof to be necessary and on payment by the claimant of the survey fees, order a survey of the land to which any advertised claim relates;
shall, as soon as reasonably possible after the expiration of the period of 6 months for giving notice in writing of an objection to an advertised claim, and after the deposit of the plan of any survey ordered in respect of the land to which the claims relates, make a fixture for the hearing of that advertised claim, and give at least 2 weeks’ notice in writing of the fixture to the claimant thereunder and to each objector thereto.”
There is no evidence the plaintiffs or any of their family objected or otherwise responded to this claim.
[95]	The plaintiffs claim was formally lodged on 20 June 2006 through their solicitor and former Public Trustee Toleafoa R.S. Toailoa.  Although I accept there is some evidence the issue of beneficial ownership was raised with the Public Trust Office in 2005 by the original plaintiff.  The difference is insignificant.  
[96]	The question now arising is whether in the circumstances the original plaintiff is estopped from proceeding because he has slept upon his rights.  The defendants have raised the equitable defences of laches and acquiescence.  The third defendant also says Fuimaono Lafoia was not the product of a marital relationship and the law in force at the time required that Teariki and Faaluaumeke be married in order for the son to inherit.  They further raise albeit very peripherally the issue of acquisition of title by adverse possession. I will address each in turn.
Laches
[97]	The locus classicus of the equitable doctrine of laches is the statement by Sir Barnes Peacock in the Privy Council in Lindsay Petroleum Co. v Hurd (1874) LR 5 PC 221 at 239 (although Deane, J in the High Court of Australia in Orr v Ford (1988) 167 CLR 316 at 341 attributed the words to Lord Selbourne, LC for reasons not clear in an otherwise powerful dissenting judgment):
“The doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine.  Where it would be practically unjust to give a remedy, either because the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where, by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases lapse of time and delay are most material.  But in every case if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any  statute of limitations, the validity of that defence must be tried upon principles substantially equitable.  Two circumstances always important in such cases are the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy.”
[98]	Of this Lord Blackburn observed in Erlanger v New Sombrero Phosphate Co. (1878) 3 AC 1218, 1279 (HL):
“I have looked in vain for any authority which gives a more distinct and definite rule than this; and I think, from the nature of the inquiry, it must always be a question of more or less, depending on the degree of diligence which might reasonably be required, and the degree of change which has occurred, whether the balance of justice or injustice is in favour of granting the remedy or withholding it.  The determination of such a question must largely depend on the turn of mind of those who have to decide, and must therefore be subject to uncertainty; but that, I think, is inherent in the nature of the inquiry.”
[99]	After referring to these classic pronouncements, Oliver, LJ in Habib Bank Ltd v Habib Bank AG Zurich [1981] 2 All ER 650 quipped: 
“To this counsel for the plaintiffs retorts that that applied only where you are considering the doctrine of laches or acquiescence in relation to the assertion of equitable rights and not where you are considering the enforcement by equitable means of legal rights; and we were regaled with authorities on both sides for the purpose of establishing whether a plaintiff in a passing-off action is protecting a legal right or an equitable right.
I have to confess that I detect in myself, despite the erudition displayed by both counsel, a strong predilection for the view that such distinctions are both archaic and arcane and that in the year 1980 they have but little significance for anyone but a legal historian.  For myself, I believe that the law as it has developed over the past twenty years has now evolved a far broader approach to the problem then that suggested by counsel for the plaintiff and one which is in no way dependent on the historical accident of whether any particular right was first recognized by the common law or was invented by the Court of Chancery.  It is an approach exemplified in such cases as Inwards v Baker [1965] 1 All ER 446, [1965 2 QB 29 and Crabb v Arun District Council [1975] 3 All ER 865, [1976] Ch 179.  We have been referred at length to a recent judgment of my own in Taylor Fashions Ltd v Liverpool Victoria Trustees Co  Ltd [1981] 1 All ER 897, [1981] 2 WLR 576 in which I ventured to collect and review the authorities.  I said this ([1981] 1 All ER 897 at 915-916, [1981] 2 WLR 576 at 593):
‘Furthermore, the more recent cases indicate, in my judgment, that the application of the Ramsden v Dyson ((1866) LR 1 HL 129) principle (whether you call it proprietary estoppel, estoppel by acquiescence or estoppel by encouragement is really immaterial) requires a very much broader approach which is directed rather at ascertaining whether, in particular individual circumstances, it would be unconscionable for a party to be permitted to deny that which, knowingly or unknowingly, he has allowed or encouraged another to assume to his detriment rather than to inquiring whether the circumstances can be fitted within the confines of some preconceived formula serving as a universal yardstick for every form of unconscionable behaviour.’
Whilst having heard the judgment read by counsel I could wish that it had been more succinct, that statement at least is one to which I adhere.”
[100]	About which his colleagues in the Court of Appeal said:
“Watkins LJ - I agree, and there is nothing I could possibly add to that judgment.
Stephenson LJ - I agree and would like to express my concurrence with what Oliver LJ has said, both about archaic and arcane distinctions and his statement in Taylor Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1981] 1 All ER 897 at 915-916, [1981] 2 WLR 576 at 593 which he read from his judgment.”
[101]	Lindsay Petroleum has been recognized by this court as the applicable test: Ah Yeung v Jay To [2010] WSSC 49.  It has on occasion been applied: see for example by Slicer, J in McBride v Public Trustee [2010] WSSC 79 where laches defeated a testamentary challenge lodged 34 years post-death.
[102]	As noted earlier, I am satisfied the plaintiffs family more probably than not knew of the existence of Teariki the Rarotongan from Apia and the occupation by his family of the lands in question.  If not of all three parcels, certainly of Lefoka in Matafagatele and Tuvao in Matautu-uta.  They were also well aware from the evidence of reputation and the Family Books of Teariki the Rarotongan man of Falefa and his son Lafoia.  The evidence shows Fuimaono Lafoia had substantial connection to Apia and lived in Leonē following the death of his first wife Maria the grandmother of Fuimaono Luka and the original plaintiff. Yet no effort was made to claim the inheritance of their grandfather or make the lineage known to the defendants.
[103]	I have concluded this is because they were well aware these were two different men but on the supposition that they were not, the plaintiffs claim must fail on the basis of laches.  Nothing was done to advance their claims or bring the matter to the notice of the defendants by Fuimaono Lafoia or Fuimaono Luka on behalf of the descendants of Faaluaumeke or by Fuimaono Koli or Gagau on the part of the descendants of Vailiili or their children during their lifetime. No-one responded to the 1958 publication in the Press News and Samoa Bulletin, no-one responded to publication of the 1973 Land Commission claim by the first defendant and no-one responded to the Notice in 2001. 
[104]	It is no answer for the plaintiffs to say they had no knowledge of whether or not Teariki left a will.  Their own evidence is Fuimaono Lafoia was Tearikis son.  Whether Teariki had a will or not would not from any perspective alter the fact that he was Tearikis heir.  In terms we Samoans understand very well, he was a “suli” (heir).  And thus entitled to that which his father had, including property.
[105]	It is the very essence of laches that “it would be unconscionable for a party to be permitted to deny that which, knowingly or unknowingly, he has allowed or encouraged another to assume to his detriment……” (Oliver, LJ above – emphasis is mine). It applies where in the words of Sir Barnes Peacock “it would be practically unjust to give a remedy because the party has by his conduct and neglect put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted.”  Laches is the equity by which the court will intervene where justice requires to estop a party from reversing that which he has knowingly or unwittingly created.  
[106]	The plaintiffs argue that if there has been any unconscionable delay, it has been on the part of the first defendant and the discordant third defendant beneficiaries.  Whilst I agree the first defendants administration of Tearikis Estate has been “shoddy” and unjustifiably tardy and that there has been some delay occasioned by disputes among the Estate beneficiaries, again this does not excuse the plaintiffs inaction.  They well knew there was property in Apia belonging to the family of one reputed to be ‘Teariki’ of Rarotonga yet chose to do nothing.  Including not responding to any of the public advertisements concerning Tearikis Estate and the lands in question.
[107]	The plaintiffs argue prejudice as a result of the delay is an essential component of the doctrine.  I accept the most common laches scenario is where prejudice has occurred.  For example the death of witnesses, loss of written evidence and failure of memory: Hughes v Schofield [1975] 1 NSWLR 8 per Needham, J. But it can also arise in other circumstances.  The learned authors of ‘Equity Doctrines and Remedies’ by Meagher Gummow and Lehane 3rd ed at paragraph 3604 refer to some of these including - 
“where combined with lapse of time, the impossibility of granting equitable relief on just terms will ground a successful defence of laches.  If property has passed through various hands, and successive owners have spent money on it, an equity court will not rescind the original wrongful sale of the property, even if it be a sale by a trustee in breach of trust: Bonney v Ridgard (1784) 29 ER 1101.”  
[108]	Reference is also made to the High Court of Australia decision in Lamshed v Lamshed (1963) 109 CLR 440 where the majority held the plaintiffs 6 year delay in prosecuting his claim constituted laches and disentitled him to equitable relief.  In delivering judgment Kitto, J said at page 455:
“The case is therefore not one of bare delay; it is not even one in which all that can be said against the granting of relief is that the plaintiffs delay has unfairly placed the appellant in a position of uncertainty over a substantial period; it is a case in which a defendant, not precipitately but at length, in circumstances which made it not altogether unreasonable to do so, has prejudiced his position; and it is a case in which third parties, not shown to be in any way at fault and not being warned by any caveat on the title, have acquired interests which will be defeated if a decree for specific performance should now be made.”
For his part Windeyer, J was content to invoke the maxim ‘vigilantibus non dormientibus iura subveniunt’ (“the law assists those that are vigilant not those who sleep on their rights”).
[109]	The prejudice here in my view lies in the fact inter alia that some of the Estate lands have already been distributed and the beneficiaries have compromised their respective positions by way of family arrangements in an effort to resolve the Estate.  In some instances property conveyed to beneficiaries has been sold or transferred to third parties and in other cases, used by beneficiaries as mortgage security for loans.  I agree details of this were poorly provided but the picture is one of the parties since the 1960’s substantially altering their positions and developing what they understood to be their respective portions of Estate property in the belief they were the only beneficiaries and their title was valid.  To the extent that the first defendant was forced to intervene by letter dated 24 September 1971 to “All Beneficiaries” concerning unapproved building and development.  
[110]	The plaintiffs rightly observe that various persons represented by the third defendant operate businesses from Estate lands in particular the Apia Park lands and portions of Tuvao. To this end they have made significant improvements to the assets of the Estate.  Buildings of considerable value housing restaurants, shops, a Laundromat, a petrol station and the multi-storey Alaimoana Hotel have been erected on the lands.  The removal or purchase of such structures and property would involve complex not to mention potentially controversial commercial equations.  It would not be a simple matter of compensating the relevant parties and mortgagees as suggested by the plaintiffs.  The issue of the family burial grounds is also a matter of some delicacy.  Particularly if these are required to be relocated, an exercise fraught with costly and customary implications.
[111]	There is no question there would be substantial prejudice occasioned to the third defendants if the equitable relief sought by the plaintiffs were to be granted. 
Acquiescence
[112]	Although a sister concept to laches, acquiescence is narrower in that it requires knowledge on the part of a plaintiff that his rights are being violated.  That is, a knowing waiver of his rights.  The pre-requisite being that he was aware of the full extent of his rights.  As noted in the old but nevertheless valid authority of Duke of Leeds v Earl of Amberst (1846) 41 ER 886, 888:
“If a party having a right stands by and sees another dealing with the property in a manner inconsistent with that right, and makes no objection while the act is in progress he cannot afterwards complain; that is the proper sense of the word ‘acquiescence’”. 
[113]	In Lindsay Petroleum (supra) it was explained on the basis of it being “practically unjust to give a remedy because the party has by his conduct done that which might fairly be regarded as equivalent to a waiver of it….”
[114]	In the present case the plaintiffs accept they had full knowledge of their ancestor Teariki the Rarotongan from inter alia their Family Books. Plaintiffs evidence also establishes that Tearikis son Fuimaono Lafoia lived in Apia in the same area as the Estate lands; as did Gagau the family record-keeper and no doubt her father Fuimaono Koli the one-time mayor of Apia.  So would have other members of the plaintiffs family such as the husband and children of Gagaus two daughters-in-law Kolopa and Iutita.  I am also satisfied for the reasons outlined earlier that it is more probable than not that the plaintiffs family would have become aware of the family of the descendants of Teariki the Rarotongan and occupier of roadside properties in the neighbouring villages.  As such they would have witnessed over the years the occupation and development of Estate lands.  But the evidence indicates they took no action to assert their rights.  Not even to the extent of an inquiry whether their ‘Teariki’ was the third defendants ‘Teariki’.
[115]	There would seem to be three possibilities arising from the evidence: either the plaintiffs knew and did nothing; or the plaintiffs suspected the two might be the same yet did nothing; or the plaintiffs did not know until the original plaintiff came along, researched the matter and “uncovered” the connection.  If it be the first then it is plainly a case of acquiescence and the plaintiffs have in effect waived any rights they may have had.  If it be the second it would seem also to be a case of either acquiescence or laches for their failure to diligently make reasonable inquiries should not now be held against the defendants, particularly in light of the 1958, 1973 and 2001 publications.  If it be the third then the plaintiffs claim falls to be determined on the basis of laches per se and the injustice that would be created by granting to the plaintiffs the remedy sought given the delay and the resultant prejudice that would entail.
[116]	On any of these scenarios, the plaintiffs claim must fail.
Legitimacy
[117]	The third defendant here argues the evidence supports an inference that Fuimaono Lafoia was an illegitimate child as there is no proof Teariki and Faaluaumeke were married.  The short answer to that is as pointed out by plaintiffs counsel, this was neither pleaded nor put to any of the plaintiffs witnesses.  The widely recognized rule in Browne v Dunn (1893) 6 R 67 (HL) referred to by Hunt, J in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 44 ALR 607 at page 623 therefore comes into play:
“It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiners intention to rely upon such matter, it is necessary to put to an opponent’s witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings.  Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn.  That rule of practice follows from what I have always believed to be rules of conduct which are essential to fair play at the trial and which are generally regarded as being established by the decision of the House of Lords in Browne v Dunn (1894) 6 R 67”.
[118]	Third defendants submissions on this issue must accordingly be ignored.
[119]	In any event, I agree with plaintiffs counsel there is evidence tending to suggest the two were married.  Not in the words “got together” (“usuga”) as usually this refers to a common law cohabitation, something very common in the 1800’s before this country reverted to Christianity.  It is instead found in Exhibits “P-4” and “P-5” which reference a “wife” and “remarriage”.  This tends to suggest the prior relationship was marital as opposed to de-facto.
Limitation Act
[120]	The first defence advanced by the defendants is section 20 of the Limitation Act 1975 which provides for a 12 year time limit after accrual of rights under an intestacy.  But plaintiffs counsel quite correctly notes this only applies to the “personal estate of a deceased person”:
“20. Limitation of actions claiming personal estate of a deceased person – Subject to section 19(1), (which has no application to the present matter) no action in respect of any claim to the personal estate of a deceased person or to any share or interest in such estate, whether under a will or on intestacy, is to be brought after the expiration of 12 years from the date when the right to receive the share or interest accrued……..”
[121]	The more pertinent provision is section 9 of the Act which provides for acquisition of title by way of the common law concept of adverse possession.
“9. Limitation of actions to recover land.
(1) (Deals with actions by the Government to recover land – 60 year time limit)
(2)	No action shall be brought by any other person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him or to some person through whom he claims.”
[122]	This however was not expressly or properly pleaded by the defendants in their Statements of Defence or in the third defendants Counter-Claim where it properly belongs.  The third defendant seems to refer to the matter in paragraph 9 of its defence when it says:
“The Third Party further states that in the alternative, their claims are statute barred under the respective Limitation Statutes as applicable in Samoa from 1942 (when Teariki passed away) to date.”
[123]	I agree with the plaintiffs who in a very cogent submission argue:
“The law of adverse possession is a combination of statute (as to the limitation period) and common law (as to the nature and extent of the required occupation of land).  It was not enough for the Third Defendants to merely invoke, in the most general terms possible, all “Limitation Statutes as applicable in Samoa from 1942”.  Rather, the Third Defendants were required to set out the material facts that established possessory title to the land, such that the documentary title owner could no longer bring a claim to recover the land.  It is only in this way that their pleadings could convey to the plaintiffs the case that they were required to meet.”
[124]	This issue has been raised by the court and I also agree with plaintiffs counsel that while cases are determined on the evidence and not the pleadings, the court must accord procedural fairness to the parties.  It would be unfair for the court to entertain such an issue at this late stage.  I am also persuaded that in any event, the third defendant will have difficulty overcoming the hurdles posed by the Limitation Amendment Act 2012 which “removed adverse possession from the Samoan landscape” (the Court of Appeal in Paese v Public Trustee [2013] WSCA 8) save only in respect of “actions that were ……………defended or resisted” before 26 January 2012 when the Amendment came into force.
Counter-claim
[125]	In a most strange Counter-claim the third defendant alleges the plaintiffs have fraudulently manufactured documentary evidence of their connection to ‘Teariki’ and fraudulently lodged caveats against Estate lands causing damage special general and exemplary.  But the evidence to support the Counter-claim seems to have disappeared into the mist of the case like counsel who filed it.
[126]	No factual or evidentiary basis was laid to support the allegations.  Or the claim for damages.  There is also no doubting the fact that anyone claiming a beneficial interest in land can caveat the title to protect that interest.  The issue then falling to be determined is whether or not he has a caveatable interest that the law ought to protect.
[127]	I agree with plaintiffs counsel.  The counter-claim has no basis in fact or law.  It should be dismissed.
Summary
1.	The plaintiffs have established on a balance of probabilities that they are descended from the Rarotongan man ‘Keliki’ also known as ‘Teariki’ who by his union with Faaluaumeke of the Sā-Fuimaono family of Falefa produced a son Valeriano Lafoia who held the title Fuimaono in the village of Falefa.
2.	Further, that they are descended from the said Fuimaono Valeriano Lafoia.
3.	The plaintiffs have not established on a balance of probabilities that ‘Keliki’ also known as ‘Teariki’ of Falefa is Teariki of Apia, son of Teariki Apai of Rarotonga and Sieni Tamapua of the Sā-Tamapua family of Matafagatele.
4.	They accordingly have no claim to lands of the Estate of Teariki of Apia currently being administered by the first defendant.
5.	Had they satisfied the court they were descendants of Teariki of Apia, their claim would still fail on the basis of the equitable doctrines of laches and acquiescence given their inactivity until in or about 2006.
6.	There is no merit in the legitimacy or Limitation Act arguments.
7.	Or in the Counter-claim which should be dismissed.
8.	Judgment will therefore be entered in favour of the defendants and the third defendants Counter-claim is dismissed.
As each party has to some degree been successful, I make no order as to costs.
I formally record my thanks to counsels for their perseverance and patience.  In particular to counsel for the plaintiffs for her refreshing employment of modern aids such as a flashdrive to present their case.  I found it very useful and commend this approach to the local Bar. 
JUSTICE NELSON