Eletise v Lutuiloa [2018] WSSC 52 (6 April 2018)

SUPREME COURT OF SAMOA
Eletise v Lutuiloa [2018] WSSC 52

Case name:	Eletise v Lutuiloa
Citation:	[2018] WSSC 52
Decision date:	06 April 2018
Parties:	OKEAMOA ELETISE, of Auckland, New Zealand (Plainitiff) AND TIUMALU LUISA LUTUILOA, TAU LUTUILOA, FE’I LUTUILOA, TUNUFAI MANO, MALETA LUTUILOA, TOMASI TUPUOLA, KALAU OKEAMOA, EMA SEI AND FILI MANO (Defendants)
Hearing date(s):	14 & 15 March 2018
File number(s):	CP 186/15
Jurisdiction:	CIVIL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	I accept construction of the house in question was primarily funded from New Zealand by the plaintiff but the extent of her contribution cannot be quantified from the evidence. Except for the NZ$10,000 expended by her in 2012 on the bathroom and toilet. On that more recent event, I accept her oral testimony absent any records. The house was built in 1987 for the benefit and use of the parents of the parties and upon their death, ownership reverted to the plaintiff as initiator and primary financer of the dwelling. The removal of the house by the defendants led by the first named defendant without prior notice or consultation with the plaintiff amounts to a trespass and an unlawful conversion of the plaintiffs property for which the defendants are liable in law. Judgment for the plaintiff against the defendants jointly and severally in the proved damages amount of NZ$10,000 less ten percent (10%) of that value for the plaintiffs failure to mitigate her loss. Leaving a judgment sum of NZ$9,000. Given the egregious manner in which the defendants in particular the first named defendant summarily removed the plaintiffs house contrary to the advice of her brother Tu’u’u and in the face of requests from the Land and Titles Court and the sa’o of the aiga to desist, an award of punitive damages is appropriate. The sum of SAT$5,000 is sought. I would have awarded more but the plaintiff is limited to the amount claimed. Judgment for the plaintiff against the first named defendant only in the sum of SAT$5,000 as punitive damages. Costs are also awarded to the plaintiff in a sum to be approved by the court if counsels are unable to reach agreement thereon.
Representation:	A Su’a for plaintiff P Mulitalo for defendants
Catchwords:	Ownership – statement of claim – unable to produce any records – foreign currency claim – personal property – dispute – major contributor – full financial benefit – failure to mitigate damages – depreciated value – trespass and unlawful conversion – punitive damages – costs awarded.
Words and phrases:
Legislation cited:
Cases cited:	Sua v Imex Co Ltd [2004] WSSC 6 Dive and Fly Samoa Ltd v Schmidt [2005] WSSC 40 British Westinghouse Electric & Mfg Co Ltd v Underground Electric Rail Co of London Ltd [1912] UKLawRpAC 43; [1912] AC 673 at 689 (HL)
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

OKEAMOA ELETISE, of Auckland, New Zealand.
Plaintiff

AND:

TIUMALU LUISA LUTUILOA, TAU LUTUILOA, FE’I LUTUILOA, TUNUFAI MANO, MALETA LUTUILOA, TOMASI TUPUOLA, KALAU OKEAMOA, EMA SEI AND FILI MANO.
Defendants

Counsel:
A Su’a for plaintiff
P Mulitalo for defendants

Hearing: 14 & 15 March 2018
Submissions: 16 March 2018
Decision: 06 April 2018

DECISION OF NELSON J

“Men would live exceedingly quiet if these two words, mine and thine were taken away”: Anaxagoras, Greek philosopher, 460 BC.

The plaintiffs case

1. This case is about ownership of a four (4) bedroom house with adjoining kitchen and bathroom built on customary land at Siumu belonging to the plaintiffs family. The plaintiff was at all material times a resident of Auckland, New Zealand where she has lived since she moved there in 1968 as an 18 year old. The defendants are her brothers and sisters all of whom reside in Samoa, many of them on the family land at Siumu.
2. The plaintiff says that on her first trip back to Samoa in 1986 she saw “the need for a more comfortable accommodation for my parents who were already elderly and sickly.......”: paragraph 2 of her affidavit produced as Exhibit “P-1” for the plaintiff. Further in her affidavit “That this conscientious observation for a comfortable accommodation for my parents was again suggested to me and my sister, Maria Lutuiloa by my brother Tu’uu when he came over to New Zealand at the end of 1986”: paragraph 3. As a result the plaintiff began remitting monies to her mother for “the construction project for my parents house in Samoa”: paragraph 5.
3. All the required materials and labour were scourced in Apia by her mother who also contracted out construction of the building. The plaintiff does not know to whom or for how much or whether there were two or three different tufugas who undertook the job. The plaintiff was also unable to produce any record of the amounts sent or what the monies were applied towards or receipts for things purchased and paid for. She “trusted her mother” (page 19 of her evidence) and left the entire work to her to organize and facilitate. She did not at any time during construction visit Samoa to inspect or view progress. Not even after completion.
4. She “estimates” the building cost her about NZ$65,000 inclusive of labour: paragraph 8 of “P-1”. Absent any records she did not explain how she arrived at this figure or how much represented materials and how much the cost of labour. In paragraph 7 of her affidavit she says “the completed initial works was just a four (4) bedroom palagi house with a lounge.”
5. In 1989 her sister Maria Lutuiloa as a gift to her extended the house by adding and furnishing a kitchen. Her evidence was this cost her sister NZ$25,000 including labour. Maria confirmed this and said she did it because the plaintiff was like a second mother to her during her time in New Zealand.
6. In 2012 a bathroom and toilet sited adjacent to the kitchen was added. The plaintiff says she paid NZ$10,000 for this work which was carried out by her brother Tu’u’u Lutuiloa. Making a total of NZ$100,000 which the plaintiff now claims as money she spent on the building.
7. Why this was not specified as such in her Statement of Claim is a mystery to me. Plaintiffs previous counsel seemed unaware that foreign currency claims can be brought in this jurisdiction. As noted by Chief Justice Sapolu in Sua v Imex Co Ltd [2004] WSSC 6 “this court for a number of years now has been giving judgments in foreign currency in appropriate cases.” Counsel can look such cases up for himself.
8. The plaintiffs further evidence was her parents and members of her family occupied the house from the time it was built until mid-2012. Her father died in 2005 while living in the house with family members as did her mother in 2011. Tu’u’u looked after the house until mid-2012 when his own house was completed and he moved out. From then to 2015 the house was vacant but “sa vaai e Tu’u’u.” No-one of the family laid any claim to the house or sought to live there. It was not disputed that on visits to Samoa the plaintiff and her children stayed in the house. They appeared to be its only occupants post-death of her parents.
9. Exterior pictures of the house taken on a visit in 2011 were produced as part of the plaintiffs supplementary affidavit Exhibit “P-2” for the plaintiff. Likely taken at the time of her mothers funeral in August 2011. They show a house situated on a substantial concrete ‘faavae’ but exhibiting a fair degree of wear and tear, consistent with a 1987 construction date.

The claim

10. The claim against the defendants is a result of the defendants led by the first named defendant Tiumalu Luisa dismantling the house in 2015. The plaintiffs evidence is she was never contacted or consulted about such a move and was shocked and devastated to be told her siblings had demolished the house. Which she asserts is her own personal property by virtue of the above facts. She was further distressed by the subsequent advice that Tiumalu Luisa was building a house on the site previously occupied by “her house.”
11. She immediately travelled to Samoa and tried in vain to stop this construction. She unsuccessfully sought assistance from the Land and Titles Court who essentially advised that the issue rested with the sa’o of the family Talaepa P.Talaepa. A written request to Luisa from the sa’o to halt construction so the matter could be discussed was not complied with and her sisters house now sits atop “her foundation.” Clearly the sa’o failed dismally in his duties and function and seems from the evidence to have displayed little interest in solving this family dispute. He did not testify but there is no evidence he authorised the defendants or any of them to remove the plaintiffs house or to allow Tiumalu Luisa to build on that site.
12. Upon visiting the property the plaintiff found the dismantled wood and roofing irons of the building stacked beside the main road. She left them there as she did not want them.

“HH: Toe faamanino mai le tulaga lea, sa e toe foi mai i le 2015 ua tala le fale, pei na ou tau maua atu lau molimau faapea sa faaputu laupapa ma apa o le fale i luma o le foundation. O le sa’o lea o lou molimau?

Wit: Sa aveese mai ma le foundation ae fau i luma, tafatafa o le auala.

HH: Lona uiga o laupapa ma apa ia, o laupapa ma apa o lou fale?

Wit: Faapena lava.

HH: O le a le mea na oo iai i mea na?

Wit: E le iloa e a’u poo fea na ave iai, pe na faaoga e latou pe leai. Ou te le’i toe manao ai.

HH: Oi ua e le toe manao iai, lona uiga e leai se mea na fai e oe i mea na a?

Wit: E le’i toe tago a’u iai”.

13. These matters have caused the plaintiff severe emotional and psychological anguish because of the sentimental value of the building and the egregious manner in which it was removed. She now brings proceedings against her siblings in tort claiming they have unlawfully converted her goods. For this she claims Samoan Tala $218,860 in damages, the basis for which is again a mystery as counsels representing the plaintiff both accept that according to the prevailing conversion rate when proceedings were filed, her claim should have been for SAT$170,000 to which a 10% per annum depreciated value must be applied to account for the 28 years since 1987. The plaintiff also claims punitive damages of SAT$5,000 and costs.

The defence case

14. Only the first named defendant Tiumalu Luisa gave evidence. She agrees the house was built in 1987 but says it was specifically earmarked for their parents. Their father at that time was living and working in New Zealand and their mother lived with them in the “fale ta’alaelae” next door to the house in dispute.
15. She says money was sent by their father to their mother for the work but family members in Samoa also contributed in various ways. Some paid for loads of sand, others collected rocks and ma’ama’a for construction of the foundation. She herself personally paid at least $500 for loads of sand. She mentioned a $5,000 cash payment plus other contributions from her siblings but as none of them gave evidence, I give little weight to that part of her testimony.
16. She also said family members helped feed the work-crew. Some provided crops and the mea-lelei, others cooked and served the daily meals for the “tausiga o le au faigaluega”.
17. Her fathers sisters son, a tufuga from Siumu was originally in charge of the project. Monies from overseas paid for the building materials but funds ran out occasionally necessitating pauses in construction. She described the work as “alu ma poloka” due to a lack of money. It appeared from her evidence other tufugas became involved when on those occasions work resumed. At the end only a four (4) bedroom house was able to be built.
18. She accepts the matter could have been handled better but claims her brother Tu’u’u gave her permission to proceed with demolishing the house. Something Tu’u’u vehemently denies. She said the house was old (“pala”) and in disrepair and that Tu’u’u said her sister could always build a new one elsewhere on the family land. She denies receiving a Land and Titles request to stop building and says the letter from the sa’o of the family was an invitation to discuss, nothing more. The sa’o never instructed her to cease construction. She clearly did not expend much effort to try and peacefully avert a confrontation with her older sister in New Zealand.
19. She said she has gone to the plaintiff six times to apologise and each time the plaintiff has refused to see her. The last time being the weekend before these proceedings but was again rebuffed. In her evidence the plaintiff accepted there were attempts by her sister Tiumalu to reconcile but she rejected them telling her when she visited “You’re not supposed to be here”: page 11 of her evidence.

Evidence of Tu’u’u

20. I consider the evidence of this witness to be crucial for two reasons: firstly this is essentially a dispute between his sisters one living in Samoa and the other in New Zealand, where Tu’u’u also resided for a time. Secondly he seems to have played a pivotal role in the history and eventual dismantling of the house.
21. As to the former, his evidence was as follows:

“I le tausaga 1986 ou tuua ai Samoa ou te alu i Niu Sila. E toatolu teine sa iai i Niu Sila o Okeamoa Alice, Koleka o Malia. Ua gasegase lo matou tama i le 1975 ua le toe mafai se mea. O matou , ou te manao e fai se mea maute molimauina poo le a se mea e fiafia ai ina ia umi lona soifua. Ou fai atu loa o ai seisi o outou e ofo mai e fai le fale o le toeaina. O le teine lea e toatasi na faatupea mai le fale lea.”

22. Tu’u’u remained in New Zealand and only returned to Samoa around or before 2011. He took up residence in the house and moved out in mid-2012 when his own house was completed. It is telling that of his own house Tu’u’u had this to say at page 48 of his evidence:

“HH: o lea e te taua o lou fale, fale a oe a?

Wit: ia

HH: o le fale foi lea o lea ei luga o le fanua lava lea e tasi?

Wit: o lea lava

HH: ae atonu e fai atu seisi ia oe o le fale lea e te alala ai o le fale o le aiga e te teena lena mau?

Wit: oi leai ou te teena

HH: e faapea lava oe o le fale na fau i tupe a Tu’u’u o le fale a Tu’u’u e sa’o?

Wit: o lea lava.”

23. A similar view is held by the first named defendant about her current house. When questioned she replied it was the house “for her and her children” paid for by her daughter. This is what she told Tu’u’u as confirmed by him in his evidence at page 38 when describing the events of the day the house was demolished:

“Tali: na alu atu lea o le teine lea ia te au i le taeao pe a o le 7:30 poo le 7 ma pagikeke e lua, fai loa le ti ma ma talatalanoa ma faapea atu loa Tu’u’u o le fale a la’u fanau o le a fai.

Fesili: o le tala lea a ai?

Tali: a Luisa, ou fai atu loa o fea e fai ai? O le a tala i lalo le fale ae o le a fai ai le fale o la’u fanau. O’u fai atu Luisa aua e te faia se mea e le o sau meatotino, e le o se meatotino a a’u. Sei sau lou uso lua talanoa poo fea e tasi moemoe iai le tou talanoaga o le mea lena e tatau ona fai. Aua e leai sau feau iai e lei alu ai sa’u sene.”

And on page 39:

“Fesili: Ina ua e faailoa ia Luisa e taatia sei faatali lona uso sei alu atu fai se la tala, o le a le tali a Luisa?

Tali: tali a Luisa ia te a’u, o le a fai le fale o la’u fanau, aua e te faalavelave, aua e te alu atu. Ia te au ia pei o ni upu foi ia – aua ana faapea oute alu e iai ni faalavelave e tutupu mai. Ua lava foi le tofa ma le faautautaga ia te au ua taumafai e vili le teine e ona le fale e ta’u iai.

Fesili: e fai atu lau faamatalaga lea ia Luisa o le a le tali a Luisa?

Tali: a foi o le tali a Luisa, aua e te alu atu, aua e te faalavelave o le a talepe i lalo le fale.

Fesili: o le a lau tali i le tala lena a Luisa?

Tali: na ou fai atu ia Luisa pule a oe, ae e le o sau meatotino e le o se meatotino a a’u.

Fesili: na uma loa ona fai le tala lena o le a le mea na tupu?

Tali: tulai loa Luisa ma aluese loa ma lo’u fale

Fesili: tulai loa aluese ma lou fale ao le a lau galuega na fai?

Tali: ua ou sauni loa oute alu i la’u galuega pe a ma le 10 minute ou faalogo atu loa ua amata ona pa’o mai le talepega o le fale.

Fesili: talepega o le fale lea o Okeamoa?

Tali: ia.”

24. Tu’u’u went on to describe how all the defendants played a part in the dismantling of the plaintiffs house. By days end the house wood, roofing irons and other materials were stacked in piles by the road and the house no longer existed. Except for the concrete foundation.

Analysis

25. The evidence of the plaintiffs brother Tu’u’u is as close to ‘independent evidence’ as can be hoped for in the circumstances of this case. Which pits sister against sister and sister against brother. As expressed to the parties it is regrettable they have been unable to amicably resolve their differences which I am certain extends beyond the present dispute.
26. Tu’u’u’s evidence is that the money for the house came exclusively from the plaintiff. It was also his evidence that his father had been ill since 1975 and “ua le toe mafai se mea.” Accordingly I reject the suggestion by the first named defendant that the building was financed in whole or in part by her father. There is also the issue of how the father would have been able to work when not a citizen or permanent resident of New Zealand.
27. I am satisfied from the evidence the plaintiff was the major contributor to the cost of the house. Absent any records however I cannot accept her claim that NZ$65,000 was the extent of her initial contribution. That would have been a princely sum in 1987 and would in my experience have been sufficient to fund a more complete building.
28. As for the kitchen added in 1989, I do not accept it was a gift exclusively for the plaintiff and therefore “belonged” to her. The building was clearly intended for the parents, the plaintiff in her own affidavit admits this. As Tu’u’u stated in evidence, the question was asked of the plaintiff and Maria and it was the plaintiff who first stepped up. In these circumstances the sister Marias contribution may well have been an expression of her gratitude to the plaintiff for all she did for her, but it was not a gift made directly to the plaintiff. She could just as easily have given her the NZ$25,000. Instead it was effected by way of an addition to the house in Samoa being built by her sister for the benefit of their elderly parents. A sort of killing two birds with one stone approach. The plaintiff is not entitled in my view to claim the full financial benefit of such generosity.
29. I do however accept the plaintiff funded the bathroom/toilet extension in 2012. In the amount of NZ$10,000. As confirmed by Tu’u’u at page 41 of his evidence where he said the assistance of the first named defendant was on that occasion also limited to doing the “saka”:

“Fesili: o e manatua na iai se sao poo se tupe se sao o Tiumalu Luisa Lutuiloa na fai i le galuega lea?

Tali; e leai ma se mea e tasi

Fesili: ae a se tulaga i le galuega o le fai o le meaai?

Tali: pau o meaai sa fai o talo ma fai, na o se saka ao matou e fatupea uma mea tau mealelei, suka

Fesili: o ai outou?

Tali: o matou ma lo’u toalua, ma Okeamoa Eletise

Fesili: ae a Luisa?

Tali: mataulia foi o Luisa e na’o le saka le mea e fai mai pau na.”

30. I also accept the evidence of the first named defendant that this was a family project. The plaintiff living in New Zealand would not necessarily have known of contributions by the family in Samoa to the project which was under the overall control and supervision of her mother. It is not unusual for family houses to be built in this fashion with materials paid for by the higher income earners overseas while local members bear the brunt of labour support costs, such as for example feeding the work crew. There is no reason to doubt this practice was followed here and the plaintiff could not point to any tangible evidence to the contrary. She tried to claim in cross-examination that she also sent money to feed the workmen but as this was not mentioned in either of her affidavits or in her examination in chief, I discard that part of her evidence. Overall and based on the evidence I heard, I assess the parties respective contributions to the original phase of the construction to be 75% the plaintiff and 25% the local family including the defendants or such of them as were then born.
31. The defendants defence is that in these circumstances the building is a family home. It was built for the parents and as such belongs to the family. The family were therefore well within their rights to tear it down and allow Luisa to erect her house on the site.
32. This however ignores a number of relevant factors: firstly there is no evidence this was in fact the familys decision. None of the other defendants testified in support of the first named defendant despite being present throughout the proceedings. The evidence and the first named defendants statements to Tu’u’u seem to indicate Luisa bulldozed through the decision to tear down the house and erect her own building in its place. Tu’u’u and Maria certainly did not support such actions and there is no evidence the approval of the family sa’o was sought or at any time given. The evidence is to the contrary viz that the sa’o and the Land and Titles Court wanted construction halted and the parties to dialogue.
33. Secondly it is the custom in this country that if one sibling significantly contributes to such a family undertaking, his/her wishes are to be given great weight in relation to the use of the building after its primary use, in this case occupation by the elderly parents, reaches an end. Family members would normally not blatantly disregard the main contributor especially where he/she is an older sibling.
34. Thirdly the evidence indicates that after the mother died in 2011, Tu’u’u stayed on in the house in a caretaker capacity. But in mid-2012 his house was completed and he vacated the premises. From that point on until demolition in 2015 the house remained vacant but under the watchful eye of Tu’u’u who lived not far away. No family member laid claim to the house or tried to occupy it or otherwise interfered with the plaintiffs possession. When visiting, the plaintiff and her children occupied the house. This amounts to a tacit acceptance by members of the family including the defendants of the plaintiffs ownership of the building. The defence argument must be rejected.
35. It is not disputed by the parties that as a matter of law, the building in question is personal property capable of private ownership divorced from the customary status of the land upon which it sits: see Dive and Fly Samoa Ltd v Schmidt [2005] WSSC 40 a case involving fales built upon customary land where the court held:

“That the fales built by the plaintiff at its own expense on the land at Manase in Savaii are not fixtures if the land on which they stand is customary land. These fales belong to the plaintiff as items of personal property and therefore can be removed..........

The fales remain the personal properties of the plaintiff. As items of personal properties, they are chattels. As chattels they are goods.......... Being goods, any unjustified interference with their possession by the plaintiff or with the plaintiffs rights to immediate possession would constitute trespass to goods which is one of the categories of trespass.”

Conclusions

36. This has been a vexing matter because the nature and quality of the evidence produced by both parties regarding fixing the quantum of contributions and calculation of damages has been exceedingly poor. The court can only draw inferences and base findings of fact on the evidence adduced. If that is poor then the task of adjudicating and attempting to resolve a dispute becomes that much more difficult.
37. Having said this, I do not propose to adjourn these proceedings for the production of further evidence. The matter dates back to 2015, it has been too long outstanding. Another adjournment would mean further delays and I am ever conscious this is a family in turmoil and relationships continue to suffer. I will make such findings as I am able on the evidence presented. The court can do no more than that.
38. The onus of proof in every civil matter rests on the plaintiff who brings the suit. The standard required by law is proof of his/her case on a balance of probabilities. This is well established law for which no authority is necessary.
39. The main part of the plaintiffs claim is the NZ$65,000 which she says she remitted to her mother to pay for the building. The difficulties with this are numerous. Firstly the plaintiff has no documentary evidence of any kind to substantiate the amounts sent to Samoa in piece-meal fashion some 30 years ago. Paragraph 6 of her affidavit “P-1” says remittances “were sent every week” to her mother over an “almost 3 months” period. This shows she is not even sure how long the remittances continued. Furthermore she did not say how she arrived at the total of NZ$65,000 or what the monies were used for by her mother. Any record she kept has long since disappeared and she never visited or it seems even called Samoa to enquire about progress. All she knows is eventually a four bedroom palagi style house with a lounge was built.
40. The lack of records is fatal. I am unable to determine whether the monies she sent in fact totaled NZ$65,000 or a lesser or even greater sum. I accept she remitted funds which accounted for in my assessment 75% of the building cost but I am unable to quantify, even approximately the dollar or tala extent of her contribution.
41. It may have assisted if evidence of what the buying power of NZ$65,000 was in Samoan Tala in 1987 was called or whether such a sum could have built the kind of building shown in the “P-2” photos. But no such evidence was adduced. No 2015 valuation of a building of the kind shown in the photographs was produced either and plaintiffs counsel has totally relied on the oral evidence of his client concerning matters decades old, absent records of any kind.
42. Secondly, even if such records could have been produced the exercise of depreciating and determining the value of the building as at demolition day requires to be undertaken. This is recognized in the statement of claim although then counsels methodology is incomprehensible. He began with a figure of SAT$170,000 and after applying a 10% per annum depreciation ended up with the higher figure of SAT$218,860. If I were to adopt the lesser and in view of the eventually completed structure perhaps more appropriate sum of NZ$50,000 as representing the plaintiffs initial contribution and apply the 10% per annum depreciation formulae of the plaintiff over the 28 year life of the house, the resulting figure on a reducing balance basis would be a net depreciated value of less than NZ$1,000. In other words the depreciated value of the building as expected would be next to nothing. An unrealistic approach to say the least.
43. Expert evidence and calculation is required on such matters. Also to take into consideration the prevailing exchange rates for the New Zealand dollar at the relevant times. The complexities of this case have been grossly under-estimated let alone understood by those concerned. Applicable approaches have not been utilised with the result that the true value of the plaintiffs contribution and therefore the plaintiffs damage as at the date of demolition has not at all been properly addressed let alone established.
44. A further hurdle facing the plaintiff is the well known duty on plaintiffs to mitigate their damage. The locus classicus being found in the judgment of Viscount Haldane L.C. in British Westinghouse Electric & Mfg Co Ltd v Underground Electric Rail Co of London Ltd [1912] UKLawRpAC 43; [1912] AC 673 at 689 (HL) where he said that the law:

“imposes on a plaintiff the duty of taking all reasonable steps to mitigate the loss consequent on the breach, and debars him from claiming any part of the damage which is due to his neglect to take such steps.”

45. This is relevant because of the evidence of the plaintiff and Tu’u’u that when the plaintiff arrived on site post-demolition in 2015, she found the dismantled wood, roofing irons and other materials from the building stacked beside the main road. These would have had some second-hand value. Her evidence however was “Ou te lei toe mana’o iai.” Had she taken possession and sold such materials she would have been able to recoup some of her losses. Her failure to do so means she has failed to mitigate her damage in this matter. An issue unfortunately not addressed by counsels in their closing submission.

Decision

1. I accept construction of the house in question was primarily funded from New Zealand by the plaintiff but the extent of her contribution cannot be quantified from the evidence. Except for the NZ$10,000 expended by her in 2012 on the bathroom and toilet. On that more recent event, I accept her oral testimony absent any records.
2. The house was built in 1987 for the benefit and use of the parents of the parties and upon their death, ownership reverted to the plaintiff as initiator and primary financer of the dwelling.
3. The removal of the house by the defendants led by the first named defendant without prior notice or consultation with the plaintiff amounts to a trespass and an unlawful conversion of the plaintiffs property for which the defendants are liable in law.
4. Judgment for the plaintiff against the defendants jointly and severally in the proved damages amount of NZ$10,000 less ten percent (10%) of that value for the plaintiffs failure to mitigate her loss. Leaving a judgment sum of NZ$9,000.
5. Given the egregious manner in which the defendants in particular the first named defendant summarily removed the plaintiffs house contrary to the advice of her brother Tu’u’u and in the face of requests from the Land and Titles Court and the sa’o of the aiga to desist, an award of punitive damages is appropriate. The sum of SAT$5,000 is sought. I would have awarded more but the plaintiff is limited to the amount claimed.
6. Judgment for the plaintiff against the first named defendant only in the sum of SAT$5,000 as punitive damages.
7. Costs are also awarded to the plaintiff in a sum to be approved by the court if counsels are unable to reach agreement thereon.
   

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JUSTICE NELSON