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Salt v The Public Trustee [2023] WSSC 16 (28 April 2023)

IN THE SUPREME COURT OF SAMOA
Salt & Ors v The Public Trustee & Anor [2023] WSSC 16 (28 April 2023)


Case name:
Salt & Ors v The Public Trustee & Anor


Citation:


Decision date:
28 April 2023


Parties:
GEAN ROSINA SALT, AUDREY OLMA YOUNGMAN & TUILOMA SONNYA AH TUNE as the Administrators of the Estate of SEMOE AH YEN PELESA (Plaintiffs) v THE PUBLIC TRUSTEE as the Executor of the Estate of SUSIE BROWN (First Defendant) and JANE SAMIA (Second Defendant).


Hearing date(s):
22 & 23rd February 2023


File number(s):



Jurisdiction:
CIVIL


Place of delivery:
Supreme Court of Samoa, Mulinuu


Judge(s):
Justice Fepulea’i Ameperosa Roma


On appeal from:


Order:
(a) Judgment is entered for the first and second defendants;
(b) The plaintiffs’ claim is dismissed in its entirety;
(c) The first and second defendants are to file and serve their memoranda of costs within 14 days;
(d) The plaintiffs are at liberty to file and serve a response to the defendants’ memoranda of costs within 7 days thereafter.


Representation:
R. Drake for Plaintiffs
P. Fepulea’i & F. Ioane for First Defendant
S. Wulf for Second Defendant


Catchwords:
Land dispute


Words and phrases:


Legislation cited:


Cases cited:
Ah Far v Ah Far [2003] WSSC 1 (9 January 2003);
Hornal v Neuberger Products Ltd [1957] 1 QB 247;
Three Rivers District Council v Bank of England [2001] 2 A11 ER 513.


Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU


BETWEEN:


GEAN ROSINA SALT of Eagleby Queensland 42707, Australia, Pensioner AUDREY OLMA YOUNGMAN of Augustine Heights, Queensland, Australia, Administration Officer and TUILOMA SONNYA AH TUNE of Malifa, Travel Agent as the Administrators of the Estate of SEMOE AH YEN PELESA, late of Alamagoto, Widow, Deceased.


Plaintiffs


AND:


THE PUBLIC TRUSTEE a corporation sole established under the Public Trust Office Act 1975 as the Executor of the Estate of SUSIE BROWN, Deceased.


First Defendant


AND:


JANE SAMIA of Alamagoto, Married Woman.


Second Defendant


Counsel: R. Drake for Plaintiffs

P. Fepulea’i & F. Ioane for First Defendant

S. Wulf for Second Defendant

Hearing: 22 & 23 February 2023
Submissions: 23 March 2023
Judgment: 28 April 2023


JUDGMENT

The land

  1. These proceedings concern land at Alamagoto described as Lot 137 Plan 1392 of an area of 901 square metres originally owned by an Ellice Islander named Ato. On 10 October 1917, the land became registered under the name of Maina, a Samoan woman by virtue of a transfer from the said Ato dated 23 October 1915. By a conveyance dated 8 March 1974 registered on 20 March 1974, Maina gifted the land to her daughter Susie Brown, late of Alamagoto. In her will dated 18 August 1979 appointing the first defendant as executor, Susie devised the land to her daughter Jane Brown, the second defendant in these proceedings.

Maina

  1. At the centre of the dispute is Maina, late Samoan woman from Lona Fagaloa born on 17 March 1886, who became registered owner of the land on 10 October 1917. In her lifetime, Maina entered into three different relationships. The first with an independent trader from Canton named Ah Yen which produced 2 daughters, Semoe born on 12 October 1913 and her younger sister Sinimoe born on 25 October 1915. At the time of Sinimoe’s birth, Maina and Ah Yen had separated. Maina’s second union was with Ah Kogi from which she had 5 children namely Susie, Tauati, Taulele, Ah Koni and Taunofo. The third with Ng Woo from which she had a daughter named Annie.

Parties

  1. The Plaintiffs are the administrators of the estate of Semoe Ah Yen Pelesa (‘Semoe’) late of Alamagoto, widow having been granted Letters of Administration by the Supreme Court on 17 March 2021. Semoe had 2 daughters of her own, namely Rosina Eva and Lina Folasi. The plaintiffs are daughters of Rosina Eva and granddaughters of Semoe.
  2. The first defendant is the executor of the will of Susie Brown, late of Alamagoto. Susie is the eldest daughter of Maina from her second relationship with Ah Kogi. She is half sisters with Semoe and Sinimoe. Susie is one of 5 siblings including a sister named Taunofo from their parents Semoe and Ah Kogi’s union. Susie did not marry and had no children of her own. But she raised and adopted some of her nephews and nieces including the second defendant.
  3. The second defendant Jane is a biological daughter of Susie’s younger sister Taunofo. She was raised by her grandmother Maina and aunt Susie who later by adoption became her adopted mother. Under her mother’s will appointing the first defendant executor and trustee, the second defendant is devised the land at Alamagoto.

Pleadings

  1. By a statement of claim dated 9 June 2021, the plaintiffs seek declarations that:
  2. The claim is founded on fraud. The plaintiffs allege that the land was bought by Ah Yen for his infant daughter Semoe and that Maina acted in the purchase of the land as parent of and on behalf of her infant daughter. However, she fraudulently caused the land to be registered under her name and failed to convey it to the rightful beneficial owner Semoe.
  3. The first defendant denies any fraud on the part of Maina. He claims that Maina purchased the land from Ato in her own right and not for her common law husband Ah Yen on behalf of their daughter Semoe. As registered owner since October 1917, Maina had every right to gift the land to her daughter Susie in 1974. As owner at the time of her death, Susie was entitled as she did to devise the land under her will to the second defendant. In a statement of defence dated 21 July 2021, the first defendant seeks a dismissal of the plaintiffs’ action.
  4. The second defendant also denies fraud on the part of Maina. She claims that Semoe and her descendants knew full well that Maina had gifted the land to Susie; and that the subsequent gifting of the land by Susie to her under her will is legally valid. In a statement of defence dated 26 July 2021, she seeks a dismissal of the plaintiffs’ action.

Evidence for the plaintiffs

  1. The plaintiffs called 2 witnesses. The first was Tupa’i Marchetta Emma Sanft Levy, daughter of Rosina Eva Sanft, granddaughter of Semoe and great granddaughter of Maina. The second was Tupuola Margene Petersen Feesago, daughter of Sinimoe and granddaughter of Maina.

Tupai Marchetta Emma Sanft Levy

  1. Tupai is now 62 years of age. She grew up on the land at Alamagoto with her grandparents Pelesa and Semoe Ah Yen until 1983 when in her early 20s, she moved to New Zealand where she continues to reside. From what was passed on by her grandmother Semoe and her mother Rosina Eva, the land belonged to her grandmother Semoe. It was bought for her by her father Ah Yen. Semoe and Sinimoe then lived on the land with Ah Yen. Ah Yen moved later to Taufusi where he lived with his second wife Momotu and ran a business but subsequently returned to Alamagoto where Semoe and Sinimoe took care of him until he died sometime in the 1940s. He is buried at the Chinese burial ground at Talimatau.
  2. By then Maina was living at Tapatapao where she led workers working on the plantations. Upon advice of the minister and elders of the church at Alamagoto, Maina was sent for in preparation for Ah Yen’s funeral. She returned to Tapatapao after Ah Yen’s funeral but subsequently came back to Alamagoto and built her house on the land.
  3. As to occupation of the land, Tupai’s evidence is that the side of the land immediately next to the road which leads inland to Aai o Fiti was where she grew up. Ah Yen had built a house there, Semoe built her home on the same foundation in 1966 and a samoan fale on the same side of the land. In subsequent years, the same part of the land was occupied by her parents who built a house in 1969 without any objection from Maina or Susie. It continues to be occupied by her nieces and nephews at present. On the other side further from the road that leads into Aai o Fiti, Maina had built her home there, later occupied by Susie and presently by the second defendant.
  4. It was not until December 1974 during works on an extension to their kitchen that they learnt the land was registered under Susie’s name. Maina had stopped the works saying that the land was Susie’s. But Semoe confronted her that Susie had no authority as the land was purchased for her by her father Ah Yen. Maina did not respond and the works continued to its completion. The incident led to her parents seeking advice of then counsel Aeau Semi Epati as to the ownership of the land. From their own subsequent investigation, some documents relating to title of the land emerged bearing the name of Semoe but crossed out with the name Maina written in its place. The advice received at the time was to attempt to settle the matter out of court. But Maina and Susie did not want to engage in settlement talks eventually resulting in their present action being filed in 2021.
  5. Tupai also referred in evidence to a family meeting in 1995 following the funeral of Susie to discuss the ownership of the land. The meeting was called by Tupuola Margene Petersen Feesago and attended by many members of the family including herself. Others in attendance have since passed on including the sisters Semoe Ah Yen Pelesa and Sinimoe Ah Yen Petersen. But they told the meeting that the land was bought by their father Ah Yen for them and that Ah Yen told them not to give the land papers to their mother Maina because she was not a good person and a liar.
  6. Under cross examination by counsel for the first defendant, Tupai was referred to a series of documents pertaining to Maina’s purchase of the land from Ato and subsequent registration of title under her name. The documents include copies of confirmation of Ato and Maina’s appearance before His Honour Robert Mackenzie Watson Esquire on 23 October 1915 to advertise Ato’s intention to sell part of his land to Maina for 30 pounds, and an acknowledgment of payment of 15 pounds with the balance to be settled upon confirmation of his title (Exhibit D1); a publication dated 2 April 1916 of Ato’s intention to sell his land and notation by the Clerk of the Native Court dated July 1916 that no objections were received (exhibit D2); confirmation of Ato and Maina’s further appearance in the Native Court on 26 August 1916 and acknowledgment by Ato of receipt from Maina of 15 pounds for the balance of purchase price (Exhibit D3); notice dated 10 October 1917 from the Justice Department to Maina confirming registration of the transfer dated 23 October 1915 in her name (Exhibit D4); Volume 2 Folio 205 of the Land Register dated 31 August 1921 confirming Maina of Taufusi, Samoan Woman as registered proprietor of the land and a conveyance from her to Susie Brown registered on 20 March 1974 (Exhibit D5); and the deed of conveyance from Maina to Susie dated 8 March 1974 (Exhibit D6).
  7. Tupai maintained that from land registry documents during the German Administration they sighted including a hand sketch dated 16 March 1916 and approved on 27 July 1916 of Ato’s land of which a part is to be conveyed to Semoe (Exhibit P6); and an undated copy of a German document (with translation) they claim to be from the Land Register (Exhibit P11), the name Semoe Ah Yen appears as owner of lot 137.
  8. Tupai was further asked on the particulars of the fraud they allege was committed by Maina. The exchange with counsel is stated at page 20 of the transcript as follows:

“Mr Fepuleai: ... can I ask you this, what is the fraud that Maina supposedly did, what action did (she) do that you guys consider to be a fraud?

Witness: Your Honour I never said any fraud, all I’m basically telling is that my grandmother Semoe was a minor, she was an (infant) when all these happened, and not until 1974 when we found out that the land is no longer for her and its under Susie.

Mr Fepulea’i: But that is the basis of your claim, the basis of your claim in paragraph 10.3 of your statement of claim is that unbeknown to Ah Yen, Maina acted fraudulently in carrying out the land purchase from Ato on behalf of Semoe Ah Yen, her infant daughter with the said Ah Yen?

Witness: Yes Your Honour (I am saying) that this was mentioned because of all the events happening from the time Semoe was old enough to understand the land was hers until in 1974, this is when nobody knows what happened behind the scenes, that’s when we had to do our investigation, which is why we looked at it from the German administration from the time this land was purchased, everything is registered under Semoe Ah Yen, ...like I said earlier, had no idea why Ah Yen (had) been crossed out (on) some of the documents, and some of the documents with the Lands and titles that was crossed out Semoe Ah Yen and handwritten Maina on the top, so counsel ... I (would say) that’s fraud because my grandmother’s name was listed whoever crossed it out and hand written on it, (we) would like some explanation to that.”

  1. Under cross examination by counsel for the second defendant, Tupai was again referred to documents annexed to the second defendant’s affidavit (Exhibit 2D1) pertaining to the purchase and registration of land title under Maina’s name. She maintained that documents from German administration had Semoe’s name as owner. She referred also to part of Annexure I, Exhibit 2D1, an undated document titled Land and Title Commission bearing the words “O Ato i Alamagoto re sale to Maina (or Semoe).”
  2. She denied that Maina always lived on the land with Semoe referring back to the 1995 meeting where she says they were told by Semoe and Sinimoe that following Ah Yen’s death, Maina returned to Tapatapao but came back later to Alamagoto to ask them for permission to build a shack because by then, she had many kids.
  3. Tupai confirmed however Semoe’s wish to be buried infront of her house at Alamagoto; when Semoe died in December 1999, the second defendant refused to have her buried at Alamagoto; and as a result she was buried at the Magiagi cemetery.

Tupuola Margene Petersen Feesago

  1. Tupuola was born at Alamagoto but never lived there. Her evidence is similar in many respects to that of Tupai. From what she was told by her mother Sinimoe, she lived on the land with her sister Semoe and their father Ah Yen whom they took care of until he passed away. She does not know when Ah Yen passed away but says that subsequent to that, their grandmother moved back from Tapatapao where she had been working, and with approval of Semoe and Sinimoe built a small house on the other side of the land. Later in the years it was knocked down and a 2 storey house was built for Maina and Susie. The same house is now occupied by the second defendant whilst Semoe’s great grandchildren occupy Semoe’s house on the other side.
  2. Tupuola confirms that her aunt Susie died and was buried on her land in 1995. Following the funeral, she called a family meeting because many people were not happy having found out Susie had willed her property to the second defendant. The purpose of the meeting was for the family members in particular Semoe and Sinimoe to tell their side of the story and for the younger generations to hear.
  3. Semoe told the meeting that the land was bought by Ah Yen for her. She was given the deeds and told the land was for her and her sister Sinimoe; and she must not give the deeds to their mother Maina. Sinimoe also told the meeting that despite what happened, she would never have taken her mother Maina to Court. In the same meeting, uncle Ah Koni who is Maina’s fourth child from her second relationship and Semoe and Sinimoe’s half brother told of his recollection that he only came to the land at Alamagoto when he was about 8 or 9 years old.
  4. Under cross examination by counsel for the first defendant, Tupuola was referred to the same documents pertaining to the purchase and registration of land title under Maina. She maintained that a map she had seen many times but which she could not produce had Semoe’s name as registered owner.
  5. Under cross examination by counsel for the second defendant, Tupuola confirmed that Susie had lived with Maina at Alamagoto. She took care of Maina and they had properties at Ululoloa and Lotopa. She confirmed that Maina and Susie had shops at Alamagoto, Ululoloa and Lotopa.

Evidence for the first defendant

  1. Mr Paniani Vaa is the Assistant Public Trustee. He confirmed in evidence the documents in their possession pertaining to the purchase and registration of the land under Maina’s name, which were tendered by consent as Exhibits D1, D2, D3, D4, D5, and D6. The same documents were referred to in cross examination of the plaintiffs’ witnesses by counsel for the first defendant.

Evidence for the second defendant

  1. By her affidavit sworn on 21 February 2023 admitted as Exhibit 2D1, Jane confirms that she is the granddaughter of Maina. She was born at Alamagoto to Taunofo, daughter of Maina and Ah Kogi but she was adopted by her aunt Susie who became her mother. Maina was a businesswoman who owned properties including land at Ululoloa and Lotopa. She owned and operated a shop infront of her land at Alamagoto. She also had a house and shop at Ululoloa. Susie was close to her mother Maina. She worked to support her and they operated their retail business together.
  2. From her own searches with the Land Registry and the first defendant’s office, the second defendant knew that the land was purchased by Maina for 30 pounds from Ato, an Ellice Islander. She relies on copies annexed to her affidavit of an agreement to sell and purchase the land recorded in the District Court of Samoa (Annexure D); an agreement to sell and purchase the land recorded in the Native Court of Samoa (Annexure E); publication dated 2 April 1916 of Ato’s intention to sell his land to Maina (Annexure F); letter dated 27 April 1917 from the Registrar of Justice to Maina of costs to be paid for registration of title under her name (Annexure G); letter dated 10 October 1917 from Registrar of Justice to Maina confirming that the transfer dated 23 October 1915 from Ato in her favour has been registered (Annexure H); land register confirming registration of title to Maina (Annexure I); and Land Register Vol 2 Folio 205 further confirming the land being registered under Maina’s name (Annexure J).
  3. Susie was a businesswoman and she gifted her lands to her adopted children including herself. Under Susie’s will (Annexure M) the land at Alamagoto where she continues to live is gifted to her. The second defendant says further that in 1999 when Semoe died, Sinimoe asked her if Semoe could be buried on the land. She refused and the burial took place at the Magiagi cemetery.
  4. The second defendant was asked under cross examination why she thinks the name Semoe appears on a document forming part of Annexure I to her affidavit which reads “O Ato i Alamagoto re sale to Maina (or Semoe)”. She did not know why but says that in inquiries with the Land Registry, she was told not to worry, the Land Registry which confirmed Maina as owner was the most important proof.

Discussion

Fraud

  1. In Ah Far v Ah Far [2003] WSSC 1 (9 January 2003) Sapolu CJ said of fraud as follows:
  2. The Court referred further to the case of Three Rivers District Council v Bank of England [2001] 2 A11 ER 513 concerned with the tort of misfeasance in public office where Lord Hobhouse of Woodborough when dealing with the question of fraud states at p569:

Plaintiffs claim in fraud

  1. The plaintiffs allege that Maina had dishonestly caused the land to be registered under name when it was purchased by Ah Yen for Semoe; and Maina acting on behalf of her infant daughter at the time failed to transfer title to Semoe its rightful owner. How Maina dishonestly effected such transfer is not pleaded and no evidence has been adduced by the plaintiffs in support of the allegation. Even witnesses for the plaintiff cannot say how Maina acted dishonestly in having the title registered under her name.
  2. Of the documentary evidence, the plaintiffs can only point to the hand sketch dated 16 March 1916 approved on 27 July 1916 of Ato’s plot 30 bearing the translation “... part of which is to be conveyed to Semoe ” with Semoe’s name under lot 137/30 and the surname Ah Yen being crossed out (Exhibit P6, P9 & P10); an undated list of land lots with acreage and names of owners with the name Semoe Ah Yen beside lot 37 (Exhibit P11); and part of Annexure I, Exhibit 2D1, an undated document titled Land and Title Commission bearing the words “O Ato i Alamagoto re sale to Maina (or Semoe)”.
  3. They contend that the appearance of Semoe’s name on the documents, when considered with the evidence of what Semoe and Sinimoe had passed onto to their children including that Ah Yen bought the land for his infant daughter Semoe and that Semoe and her descendants have lived on the land for years, amount to proof that the land was intended for Semoe and that Maina acted dishonestly in having title registered under name.
  4. I do not agree. At best the appearance of Semoe’s name on documents raises suspicion as to her connection to title. But suspicion is not enough and the documents do not constitute sufficient proof that the land was bought for her and registered under her name. None of the documents the plaintiffs rely on support the claim that Ah Yen bought the land for Semoe and sketch plans do not constitute sufficient evidence of ownership.
  5. On the other hand, a significant number of documents admitted as Exhibits for the defendants support their claim that Maina bought the land from Ato in her own right and not for anyone including her infant daughter Semoe. In fact, they prove that for almost 2 years from 23 October 1915 to 10 October 1917, Maina went through the process including appearing in Court to confirm her agreement to purchase part of Ato’s land; publication of Ato’s intention and getting approval; further appearance in the Native Court and meeting balance of the purchase price; and paying costs of registration of the transfer.
  6. I must also consider with caution the hearsay evidence of the plaintiffs’ witnesses of what their late mothers Semoe and Sinimoe told them about the land purchase and for whom it was intended; and the occupation of the land by Maina. Apart from the fact that it is information passed onto the younger generation by their ancestors who cannot verify its accuracy and truthfulness, it is not consistent in significant respects with the documentary evidence.
  7. If indeed as the plaintiffs’ witnesses say Semoe was given the deeds of the land by Ah Yen and told not to give them to Maina, where then are the said deeds? It is very unlikely that such thing occurred. There is no evidence that ownership of the land was at any stage vested in Semoe and clearly by 10 October 1917 when Semoe was almost 4 years old, title was already under Maina’s name.
  8. The same concern arises when considering the plaintiffs’ evidence that only after Ah Yen died sometime in the 1940s did Maina return to Alamagoto, sought permission from Semoe and Sinimoe and built her house on the land. Again by October 1917, title to the land was already in her name. It would be highly illogical for a businesswoman to seek from others approval to build on land she has owned for almost 30 years.
  9. The undisputed evidence of the second defendant that her approval was sought by Sinimoe to bury Semoe infront of her house; that she refused and the burial took place at Magiagi cemetery does not also favour the plaintiffs claim to title.
  10. To go back to the plaintiffs claim for fraud on the part of Maina. I find that there is no really evidence to support such a serious allegation to the higher degree of probability required. There is no evidence that she misled or deceived anyone. There is no evidence that she removed or crossed out Semoe’s name or was responsible for any amendments on the documents the plaintiffs rely on. There is also no evidence that she acted in the purchase of the land for her infant daughter Semoe. Upon a careful consideration of the evidence, an inference of dishonesty cannot also be justified. The claim must accordingly be dismissed.
  11. The death of Maina against whom these serious allegations of fraud are directed and long delay in bringing these proceedings has not helped the plaintiffs.

Removal of Caveat and Eviction

  1. Both defendants in their submissions seek an Order for the removal of a caveat 32987 lodged by the plaintiffs’ witness Marchetta Sanft – Levy and Heine Sanft upon a dismissal of the plaintiffs’ claim. I am mindful however of the provisions of s54 Land Titles Registration Act 2008 relating to notice and removal of caveat. I consider also that no such application was pleaded in the defendants’ statements of defence or in a counterclaim; and the plaintiffs have not addressed the issue. I will not therefore make such order in these proceedings.
  2. Similarly, the first defendant has not pleaded eviction in a counterclaim and the plaintiffs have not addressed the issue in their submissions. It may be the subject of separate proceedings.

Conclusions

  1. For the above reasons I conclude that:

Orders

  1. Accordingly, I make the following Orders:

JUSTICE ROMA

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