Gray v Drake [2020] WSSC 37 (20 July 2020)

IN THE SUPREME COURT OF SAMOA
Gray & Anor v Drake & Ors WSSC 37

Case name:	Gray & Anor v Drake & Ors
Citation:	WSSC 37
Decision date:	20 July 2020
Parties:	CLARA AITELEA GRAY, as Administrator of the Estate of the late KIRITA MARIA-KOLOTITA PUNE and ELSA VAELUAGA as Administratrix of the Estate of Leilua Alosio Vaeluaga, late of Alamagoto, Deceased (Plaintiffs) v RUBY DRAKE Barrister and Solicitor of Apia, Samoa (First Defendant); THE ATTORNEY GENERAL on behalf of THE MINISTRY OF NATURAL RESOURCES AND ENVIRONMENT (Second Defendant); SAMOA BREWERIES LIMITED a registered company having its address for service at Vaitele Industrial Zone, Vaitele-Tai, Faleata Sisifo, Samoa. (Third Defendant); SAMOA STATIONERY AND BOOKS LIMITED a registered company having its address for service at SSAB Megastore, Togafuafua Road, Apia, Vaimauga Sisifo, Samoa (Fourth Defendant)
Hearing date(s):
File number(s):	CP172/02, CP114/14
Jurisdiction:	CIVIL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	The s.55 Notice dated 23 December 2013 issued by the Registrar of Lands was valid. The 21 day notice period thereunder expired on 14 January 2014. Absent a Court Order Caveat 837X lapsed by operation of law. There was accordingly no Caveat 837X for the Chief Justice to extend. The Registrar was empowered to remove Caveat 837X in respect of the Tuloto land. The application by the plaintiff dated 22 January 2014 to extend the Caveat was out of time and was not in the prescribed form. Neither was it served as it should have been on the parties affected. The Order of Chief Justice Sapolu dated 04 February 2014 was also made in breach of the requirements of natural justice and article 9(1) of the Constitution and must accordingly be declared null and void ab initio. Motion to Discharge said Order is granted, costs reserved.
Representation:	O Woodroffe for plaintiff K Drake-Kruse for first defendant D Kerslake for second defendant C Vaai for third defendant F Ey for fourth defendant
Catchwords:	caveat – land claim – discharge of order – caveat lapsed – void ab initio
Words and phrases:	claiming estate or interests as beneficiaries – alleged fraudulent actions – mortgage of land – interpretation of time limitation
Legislation cited:	Acts Interpretation Act 1974, s. 23(a); Constitution of the Independent State of Samoa, Article 9; Land Titles Registration Act 2008; ss. 54(4); 55; 55(1)(b); 55(3).
Cases cited:	CBI Co. Ltd v D & E Buses Ltd [2015] NZHC 3205; Kini v Afiafi [2006] WSSC 25; Land Law in New Zealand Volume 1 Hinde; Mannai Investment Co. Ltd v Eagle Star Life Assurance Co. Ltd [1997] UKHL 19; [1997] 3 AllER 352, 383 (HL); McMorland et al (2003 ed) Ch. 10.020(d); Pune v Drake [2016] WSCA 8; Pune v Vaeluaga [2016] WSSC 4;
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

File: CP172/02, CP114/14

IN THE MATTER:

of the Land Titles Registration Act 2008 Section 55

BETWEEN:

CLARA AITELEA GRAY, as Administrator of the Estate of the late KIRITA MARIA-KOLOTITA PUNE and ELSA VAELUAGA as Administratrix of the Estate of Leilua Alosio Vaeluaga, late of Alamagoto, Deceased.

Plaintiffs

AND:

RUBY DRAKE Barrister and Solicitor of Apia, Samoa.

First Defendant

AND:

THE ATTORNEY GENERAL on behalf of THE MINISTRY OF NATURAL RESOURCES AND ENVIRONMENT.

Second Defendant

AND:

SAMOA BREWERIES LIMITED a registered company having its address for service at Vaitele Industrial Zone, Vaitele-Tai, Faleata Sisifo, Samoa.

Third Defendant

AND:

SAMOA STATIONERY AND BOOKS LIMITED a registered company having its address for service at SSAB Megastore, Togafuafua Road, Apia, Vaimauga Sisifo, Samoa.

Fourth Defendant

Counsel: O Woodroffe for plaintiff
K Drake-Kruse for first defendant
D Kerslake for second defendant
C Vaai for third defendant
F Ey for fourth defendant

Decision: 20 July 2020

DECISION OF THE COURT
Caveat 837X

Background

1. The complete factual background to this protracted litigation has been canvassed in many previous rulings of the Court in particular by the Court of Appeal in Pune v Vaeluaga [2016] WSSC 4 and Pune v Drake [2016] WSCA 8.
2. The relevant facts for present purposes are that in 2002 the then plaintiff Mrs Kirita Pune and her brother Leilua Alosio Vaeluaga “claiming estate or interest as beneficiaries” in the Estate of their father Vaeluaga Leilua lodged Caveat against dealings number 837X (“Caveat 837X”) against inter alia those Estate lands located in downtown Apia and referred to by the parties as “the Tuloto land”. The Tuloto land was subject to a registered first mortgage in favour of the third defendant (“the Breweries”) and had been gifted by their father to their brother Molio’o Teofilo Vaeluaga (“Molio’o”) in 1995. Vaeluaga Senior died two years later in 1997 aged 93 years. The plaintiff also commenced proceedings in the Supreme Court to set aside the gift on the basis of fraud perpetrated by Molio’o on their old and allegedly senile father. The plaintiff was then represented by the first defendant.
3. In 2003 the substantive claim was heard by Sapolu, CJ and his decision was reserved. Regrettably and for reasons never fully explained a decision was not rendered until some 11 years later on 15 July 2014 when the plaintiffs current counsel was retained in replacement of the first defendant. That decision albeit only two sentences in length invalidated the transfer to Molio’o on the basis of fraud. The Chief Justice however declined to grant the declaration and order sought by the plaintiff setting the gift aside until he heard from counsel on the position of the mortgagee who was not joined or made party to the proceedings. In his Reasons for Judgment issued two years later on 29 August 2016 the Chief Justice confirmed the gift was invalid as effected under undue influence and reiterated his unwillingness to grant the relief sought without “reference to the position of the third party mortgagee”.
4. Prior to the 15 July 2014 decision, Molio’o passed on and the mortgage fell into arrears. In late 2013 the Breweries exercised its power of sale and sold the Tuloto land to the fourth defendant (“SSAB”). The caveat however prevented registration of the relevant Conveyance.
5. On 12 December 2013 the solicitor for the Breweries wrote to the second defendant (“MNRE”) requesting that the Registrar of Lands advise the caveators there was an instrument pending registration and that the caveators were required to apply to the court “to verify their caveat within the notice period”. On 23 December 2013 the Registrar issued to the caveators then solicitor a notice pursuant to s.55 of the Land Titles Registration Act 2008 to withdraw the caveat failing which after expiry of the requisite 21-day notice period it would be removed. But subject to this rider: “unless before the expiry of the 21 days the Registrar is served with an Order of the court extending the time as provided in the notice”.
6. On 22 January 2014 the plaintiff through her solicitors wrote to the Supreme Court requesting that her caveat remain on the title in view of the lack of a decision from the court. This was onforwarded to the court by the first defendant on 24 January and on 30 January MNRE acknowledged the letter and advised the first defendant the 21 days would expire on 03 February 2014.
7. On 04 February 2014 “Upon reading the written application dated 22 January 2014” from the plaintiff and the first defendants “correspondence dated the 24^th day of January 2014” Sapolu, CJ extended Caveat 837X until further order of the court. MNRE records indicate a sealed copy of the courts order was only received by them on 07 February 2014 although email advice of the Order was sent on 04 February 2014.
8. There was subsequent correspondence between the Supreme Court and MNRE but it is not entirely clear whether the Caveat was removed and then reinstated and if so when how and by whom or whether it remained in place throughout. The annexures to the affidavit of Mr Colin Woodroffe of Woodroffe Law the plaintiffs solicitors reveals a change of registered proprietor from Molio’o to SSAB in 2015 but also shows Caveat 837X on the title then and previously.
9. Based on the current pleadings these are issues relevant to the substantive hearing of the proceedings. Contrary to the plaintiffs submissions they have no bearing on the present Motion which deals only with Sapolu’s Order purporting to extend the Caveat. Consideration would probably also need to be given at trial to s.54(4) of the Land Titles Registration Act 2008 which provides:
   • “54. Notice and removal of caveat –
   • (4) If a caveat has been removed no second caveat may be lodged by or on behalf of the same person in respect of the same interest except by order of the Supreme Court.”
10. In this proceeding the second defendant seeks a Discharge of the Order of 04 February 2014 on the basis that the Caveat lapsed on 31 January 2014, or possibly earlier on 14 January 2014 according to their counsels submissions, being a period of 21 days excluding weekends and public holidays after notice was properly given to the Caveator by the Registrar under s.55. The 30 January advice to the contrary to the first defendant was acknowledged to be “an error”.

Relevant law

11. S.55 of the Land Titles Registration Act 2008 provides:
    • “55. Notice by Registrar to remove caveat – (1) Except in the case of a caveat lodged by the Registrar, the caveatee or his agent may make application in writing to the Registrar to remove the caveat, and thereupon the Registrar shall:
    • (a) give 21 days’ notice in writing to the caveator requiring that the caveat be withdrawn; and,
    • (b) after the lapse of 21 days from the date of the service of such notice at the address mentioned in the caveat, remove the caveat from the register by entering a memorandum that the same is discharged unless before the expiry of the 21 days, the Registrar is served with an order of the Court extending the time as provided in the notice.
    • (2) The application shall contain an address in Samoa at which notices and proceedings may be served.
    • (3) The caveator may either before or after receiving notice from the Registrar under this section, apply by summons to the Court for an order to extend the time beyond the 21 days mentioned in such notice, and the summons may be served at the address given in the application of the caveatee, and the Court, upon proof that the caveatee has been duly served and upon such evidence as the Court may require, may make such order in the premises either ex parte or otherwise as the Court thinks fit.”
12. For the purposes of s.55 I am satisfied a “caveatee” by law is as noted by plaintiffs counsel “one against whose interest a caveat is entered or filed.” In this case this would include not only the registered proprietor but also those claiming by through or under him (“his agent”) as well as a mortgagee of the lands. Clearly the existence of a caveat would affect a mortgagees right to extinguish the equity of redemption and his/her ability to step into the shoes of the caveatee and exercise rights pursuant to the registered mortgage including to convey or otherwise dispose of or deal with the property. This in my view is sufficient to bring him within the definition of “caveatee or his agent.”
13. There is a substantial body of law on equivalent provisions in New Zealand under their Land Transfer legislation none of which was referred to by counsel and which I do not propose for the purposes of this interlocutory application to canvass: refer generally Land Law in New Zealand Volume 1 Hinde and McMorland et al (2003 ed) Ch. 10.020(d) on the rights and status of mortgagees and also see CBI Co. Ltd v D & E Buses Ltd [2015] NZHC 3205 where the New Zealand High Court rejected an argument on the equivalent provisions that only a registered proprietor and not a mortgagee could apply to lapse a caveat.

Discussion

14. As indicated to the parties when this matter was heard there are a number of reasons why the Chief Justices Order of 04 February 2014 extending Caveat 837X should be discharged. First and foremost it is clear from s.55(3) that the caveator plaintiff should have applied to the Supreme Court “by summons” duly served “at the address given in the application of the caveatee” whereupon “upon proof that the caveatee has been duly served” the court may exercise its powers to extend the 21 day notice period or deal with the matter “either ex-parte or otherwise as the court thinks fit”. A letter does not constitute an application “by summons” and there is no dispute the Breweries and the Estate of the by then deceased caveatee were not served or otherwise advised of the plaintiffs ex-parte application to the court to extend the Caveat.
15. As a consequence, those having a direct interest in the property were denied an opportunity to be heard on a matter directly affecting their interests in contravention of basic principles of natural justice as well as their fair trial rights under Article 9(1) of the Constitution. This much was acknowledged by the Chief Justice in paragraphs 35 and 36 of his Reasons for Judgment dated 29 August 2016.
16. The second reason for discharging the courts order is that it was plainly made out of time, i.e. after the statutory notice period had expired. The clear words of s.55 are that 21 days is given to the Caveator to take steps by proper application to the Supreme Court to extend the notice period, failing which the Registrar is required to remove the caveat. Whilst the section is silent on how the 21 days are to be computed the ordinary and natural meaning is that this includes public holidays and weekends; except where the prescribed time “expires or falls upon a holiday” in which case it shall be extended to “the day next following which is not a holiday”: s.23(a) of the Acts Interpretation Act 1974 which was the relevant law in effect in 2013 and 2014 until replaced by the Acts Interpretation Act 2015.
17. This accords with the view taken by the court in Kini v Afiafi [2006] WSSC 25 when dealing with the time limit prescribed for presenting of an election petition where it said:
    • “It is therefore not necessary for us to deal with the submission by counsel for the first respondent that under s.23 (a) of the Acts Interpretation Act 1974, it is not necessary to exclude holidays from the calculation of the seven days period provided for presenting an election petition. Suffice to say that our present inclination is to agree with the submission by counsel”.
    • Had Parliament intended otherwise no doubt it could have easily used the phrase “21 working days” as opposed to “21 days”.
18. The Registrars s.55 Notice was issued on Monday 23 December 2013. This was received by the first defendant on Tuesday 24 December 2013. I accept the argument that the 21 day time limit therefore expired on Tuesday 14 January 2014 which was not a holiday. As of that date Caveat 837X lapsed in accordance with s.55 and the Registrar was entitled to remove it from the Land Register: s.55(1) (b).
19. Even accepting that public holidays and weekends should be excluded the caveat would still have lapsed on Friday 31 January 2014. Well before the courts order of Tuesday 04 February 2014 purporting to extend it. The wrong date of 03 February 2014 given by MNRE remains a wrong date and in any event falls before 04 February 2014.
20. I do not accept that the Notice was defective since the mortgagee lacked standing for the reasons outlined above (paragraphs 12 and 13). Or because the wrong party (“Ming Leung Wai “) was cited by the Registrar in her letter. The documents are clear enough, the mortgagees solicitor was Mr Herman Kruse of Messrs Kruse Enari and Barlow and it was he who requested on behalf of the mortgagee removal of the caveat or an application to the Court to verify same within the statutory period.
21. This was not made an issue by the first defendant in her correspondence to the court dated 24 January 2014 thereby indicating that the plaintiffs well understood the crux of the matter as conveyed by the Registrar, viz that “an application has been received to remove (their) caveat”. In this regard I adopt the words of Lord Clyde in Mannai Investment Co. Ltd v Eagle Star Life Assurance Co. Ltd [1997] UKHL 19; [1997] 3 AllER 352, 383 (HL) where he said in dealing with a termination notice from tenant to landlord:
    • “The standard of reference is that of the reasonable man exercising his common sense in the context and in the circumstances of the particular case. It is not an absolute clarity or an absolute absence of any possible ambiguity which is desiderated. To demand a perfect precision in matters which are not within the formal requirements of the relevant power would in my view impose an unduly high standard in the framing of notices such as those in issue here. While careless drafting is certainly to be discouraged the evident intention of a notice should not in matters of this kind be rejected in preference for a technical precision.”

Decision

22. The s.55 Notice dated 23 December 2013 issued by the Registrar of Lands was valid.
23. The 21 day notice period thereunder expired on 14 January 2014. Absent a Court Order Caveat 837X lapsed by operation of law.
24. There was accordingly no Caveat 837X for the Chief Justice to extend.
25. The Registrar was empowered to remove Caveat 837X in respect of the Tuloto land.
26. The application by the plaintiff dated 22 January 2014 to extend the Caveat was out of time and was not in the prescribed form. Neither was it served as it should have been on the parties affected.
27. The Order of Chief Justice Sapolu dated 04 February 2014 was also made in breach of the requirements of natural justice and article 9(1) of the Constitution and must accordingly be declared null and void ab initio.
28. Motion to Discharge said Order is granted, costs reserved.
    

JUSTICE NELSON