IN THE SUPREME COURT OF SAMOA
Church of Jesus Christ of Latter Day Saints (Samoa) Trust & Anor v Vitale & Ors [2026] WSSC 3 (18 February 2026)

Case name: 	Church of Jesus Christ of Latter Day Saints (Samoa) Trust & Anor v Vitale & Ors	
		
Citation: 	[2026] WSSC 3	
		
Decision date: 	18 February 2026	
		
Parties: 	CHURCH OF JESUS CHRIST OF LATTER DAY SAINTS (SAMOA) TRUST (Plaintiff) & MINISTER FOR THE MINISTRY OF NATURAL RESOURCES AND ENVIRONMENT (Second Plaintiff) v SAPA’U LILOMAIAVA LOLESIO VITALE (First Defendant); VAIOTOLA MAFULI TO’O (Second Defendant); TALILEALA TAUMAOE VITALE (Third Defendant) & TUMUA KELEMETE VITALE (Fourth Defendant).	
		
Hearing date(s): 	20 & 21 April 2023
Submissions: 25 May 2023	
		
File number(s): 		
		
Jurisdiction: 	Supreme Court – CIVIL	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Fepulea'i Ameperosa Roma 	
		
On appeal from:		
		
Order:	I make the following Orders:
(a) Judgment is entered in favour of the First and Second Plaintiffs;
(b) The Defendants’ Counterclaims against the First and Second Plaintiffs are both dismissed in their entirety;
(c) A Permanent Order is made for the immediate and exclusive possession of the land in favour of the First Plaintiff in accordance with the Lease;
(d) A Permanent Order is also made restraining the First Second Third and Fourth Defendants, their families and agents from interfering with the First Plaintiff’s immediate and exclusive possession of the land; and quiet enjoyment guaranteed under the Lease;
(e) The First Second Third and Fourth Defendants are ordered jointly and severally to pay to the First Plaintiff Special Damages of $50,025.60 for loss incurred as a result of the delay in construction;
(f) The Second Third and Fourth Defendants are ordered jointly and severally to pay to the First Plaintiff exemplary damages of $10,000;
(g) The First Second Third and Fourth Defendants are, jointly and severally, to pay costs of $5,000 each in favour of the First and Second Plaintiffs.	
		
Representation: 	S. Hazelman for First Plaintiff
D. Fong & F. Kolia for Second Plaintiff
S. Ponifasio for First, Second, Third & Fourth Defendants	
		
Catchwords: 	Land lease – customary land – interference with contract – trespass – possession of land – exemplary damages – costs.	
		
Words and phrases:	“Is the lease valid?” “If valid, did the defendants interfere with and induce a breach of the lease?” “Did the defendants interfere with the plaintiffs possession or rights to possession under the lease?”	
		
Legislation cited:	Alienation of Customary Land Act 1965, s. 2.	
		
Cases cited:	Attorney General v. Ropati [2024] WSSC 43;
Dive and Fly Samoa Ltd v Schmidt [2005] WSSC 40;
Mortensen v Pihl Rorbyg Joint Venture [2004] WSSC 5;
Tutuila v Punitia [2012] WSSC 107; 
Vitale v. Alii and Faipule of Gagaifolevao Lefaga [2017] WSSC 12.	
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

CHURCH OF JESUS CHRIST OF LATTER DAY SAINTS (SAMOA) TRUST a charitable trust registered by the Registrar of Incorporated Societies in Apia, Samoa under the Charitable Trusts Act 1965 and carrying on business at Pesega near Apia, Samoa.

First Plaintiff

AND:

MINISTER FOR THE MINISTRY OF NATURAL RESOURCES AND ENVIRONMENT

Second Plaintiff

AND:

SAPA’U LILOMAIAVA LOLESIO VITALE of Alamutu, Levi Saleimoa.

First Defendant

AND:

VAIOTOLA MAFULI TO’O of Alamutu, Levi, Saleimoa.

Second Defendant

AND:

TALILEALA TAUMAOE VITALE of Alamautu, Levi, Saleimoa.

Third Defendant

AND:

TUMUA KELEMETE VITALE of Alamutu, Levi, Saleimoa.

Fourth Defendant

Counsel:	S. Hazelman for First Plaintiff
D. Fong & F. Kolia for Second Plaintiff
S. Ponifasio for First, Second, Third & Fourth Defendants
	
Hearing:	20 & 21 April 2023
Submissions:	25 May 2023 
Judgment:	18 February 2026	

JUDGMENT
Introduction
1. 	By Lease registered on 10 July 2013, Lot 1 Plan 10455 being customary land known as “Alamutu” at Levi Saleimoa was leased to the first plaintiff (“LDS”) by the second plaintiff (“Minister”) acting on behalf of the beneficial owner, namely the first defendant (“Sapa’u Lilomaiava”) as holder of the Lilomaiava title.  The lease was applied for and granted under the provisions of the Alienation of Customary Land Act 1965 (“the Act”).
2. 	These proceedings concern claims by LDS and the Minister against Sapa’u Lilomaiava and his children (the second third and fourth defendants) for interference with contract and trespass.
3. 	The claims are denied by the defendants.  They argue that the lease did not comply with the provisions and requirements under the Act and must therefore be declared invalid.
4. 	Prior to these proceedings, LDS was granted an interim injunction on 10 October 2019 to stop the defendants from entering onto the land; and continuing to interfere with the lease, its immediate possession and quiet enjoyment of the property.  An application by the defendants to rescind the injunction was dismissed by the Chief Justice on 15 July 2020.
Claim by the first Plaintiff
5. 	By first amended statement of claim of 11 March 2020, LDS seeks against the defendants:
(i) 	An Order for immediate and exclusive possession of the land;
(ii) 	An Order restraining the defendants from interfering with its quiet enjoyment of its lease;
(iii) 	An Order for the sum of SAT$50,025.60 being penalty incurred as a result of its inability to complete its construction contract on the land up to 29 November 2019;
(iv) 	Exemplary damages of $50,000 against the second third and fourth defendants;
(v) 	Costs.
Claim by the second Plaintiff
6. 	By Statement of Claim of 3 February 2020, the Minister seeks against the defendants:
(i) 	An Order for immediate possession of the land in favour of the first plaintiff;
(ii) 	An Order enforcing the terms and conditions of the lease by the defendants;
(iii) 	An Order restraining the defendants, their families and agents from interfering with the first plaintiff’s quiet enjoyment of its lease;
(iv) 	An Order restraining the defendants, their families and agents from interfering with the first plaintiff’s immediate and exclusive possession of Lot 1;
(v) 	An Order that the interim injunction granted on 10 October 2019 against the defendants be made permanent;
(vi) 	Costs.
 Defence and Counterclaims by the Defendants
7. 	The claims by both LDS and Minister are denied in respective Amended Statements of Defence and Counterclaims dated 31 August 2020 in which the defendants further seek orders that:
(i) 	The purported lease 40836 is invalid and void;
(ii) 	 LDS vacate the Alamutu land and / or give up possession and remove any improvements thereon;
(iii) 	Any payments made to date by LDS to the Minister be payment for use and occupation of the land by LDS;
(iv) 	Costs.
Issues for determination
8. 	From the pleadings and submissions by counsel, the main questions for determination are:
(a) 	Is the Lease between the Minister (acting on behalf of the first defendant) and LDS valid?
(b) 	If yes, did the defendants interfere with and induce a breach of the Lease?
(c) 	Did the defendants interfere with the first plaintiff’s possession or rights to possession under the Lease?
Witnesses
9. 	Vaaulu Uele Vaaulu (Vaaulu) was LDS’s only witness.  He was its Real Estate Manager, responsible for dealing with Sapa’u and negotiating the lease on behalf of LDS.  He holds the title ‘Vaaulu’ from Saleimoa and is a member of the Sapa’u’s extended family.  He produced an affidavit and gave oral testimony.
10. 	For the Minister, Manumaleuga Filisita Heather gave evidence.  She was the MNRE ACEO responsible for the land registry when the lease was processed and finalised.  She produced three affidavits – the first sworn on 3 February 2020, a supplementary affidavit sworn on 21 July 2022 and a further supplementary affidavit sworn on 12 April 2023.
11. 	The defendants called Sapa’u and fourth defendant (Tumua) as witnesses.  Sapa’u was almost 96 years of age when he testified.  He has held the ‘Sapa’u’ and ‘Lilomaiava’ titles of Levi Saleimoa for about 50 years; is a retired police officer with 36 years of service who also became an elected Member of Parliament for a one three (3) year term.  He gave oral testimony and produced an affidavit sworn on 14 April 2023.
12. 	Tumua is the eldest of Sapa’u’s 9 children.  He is a retired community engagement officer with the New Zealand Ministry of Statistics and a former law enforcement officer with New Zealand Police and the Samoa Ombudsman Office.  He produced an affidavit sworn on 15 April 2023. 
Evidence
13. 	The evidence is largely undisputed.  By Savali issue No. 11, 28 November 2001, the following notice of Sapa’u’s intention to lease to LDS his customary land at Alamutu, Levi Saleimoa was published:
	“Fanua o Alamutu i Saleimoa L/2015
	Ua faaalia le finagalo malie o Sapau Lolesio e lisiina atu se vaega o lona fanua o Alamutu i le Ekalesia a Iesu Keriso o le Au Paia o Aso e Gata Ai.  E tusa ma le (3) tolu eka le tele o le vaega o le fanua e fia faaaogaina tele pe itiiti.
		Ma e tuaoi i:
		Matu ma Umu Masae
		Saute ma Leiataatimu Tupe
		Sasae ma le auala galue
		Sisifo ma Lilomaiava Puleina
	Ina ia tusa ai ma aiaiga o le Fuaiupu e 8 o le Tulafono o le Faaliliuina o Fanua Faa le aganuu 1965, o lea e faasilasila atu ai ia i latou uma e fia faalavelave i lenei faasalalauga ina ia faatoai uma a outou mataupu i le Ofisa o Faamasinoga o Fanua ma Suafa i Mulinuu poo Tuasivi ao lei maea le tolu masina e afua mai i le aso o lenei faasalaulauga.
	Tu’u’u I Taulealo
	Faatonusili o Eleele, Fuagafanua & Siosiomaga”
14. 	No objections were received and by decision LC10421, 14 June 2002, the Land and Titles Court (“LTC”) endorsed and confirmed his intention to lease the land.  The decision, conveyed to MNRE by the Registrar’s letter of 19 August 2002 reads:
	“Faaiuga
1.	Ua faamaonia e le Faamasinoga le faasalalauga ua maea ona faasalalauina le Lisi atu o se vaega o le fanua o Sapa’u Lolesio o Alamutu i le Ekalesia a Iesu Keriso o le au paia o Aso e ai, e tusa ma le tolu(3) eka tele o le fanua e fia faaaogaina tele pe ititi.
2.	Ina ia tusa ai ma le fuaiupu 18 o le Tulafono o Fanua ma Suafa 1981.
3.	O le totogi o le Faamasinoga e $20.00.” 
15. 	The LDS and Sapa’u did not however immediately enter into lease negotiations.  According to the church, one of the reasons was that they agreed to explore the possibility of purchasing freehold land which Sapa’u claimed he owned and was located in the same area as his customary land.
16. 	A file note dated 14 January 2003 by MNRE staff confirms that Sapa’u saw and informed the Ministry to put his lease on hold until he made a decision.  In July the same year, Sapa’u and the third defendant (Taliileala) were petitioners before the LTC against members of their extended family over boundaries of the land Alamutu at Levi Saleimoa.  The boundaries were confirmed in a decision LC 10421P1 / P2 which further confirmed LC10421, 14 June 2002 regarding Sapa’u’s notice to lease ‘Alamutu’ to LDS.
17. 	About 9 years later in 2012, the parties reverted back to discussions of the ‘Alamutu’ lease.  Vaaulu took over the negotiations on behalf of LDS.  The land was surveyed and plan 10455 approved on 16 April 2012 before terms and conditions of the lease were negotiated.
18. 	On or around 8 May 2012, the Application for the Grant of Lease of Customary Land was completed and signed by ‘Lilomaiava Sapa’u Lolesio’ as Applicant and Vaaulu on behalf of LDS.  The form was completed by Peniamina Tuala of MNRE who also witnessed Sapa’u and Vaaulu’s signatures, and contains endorsement of the CEO and approval by the Minister.
19. 	According to the Application, the term of lease was 20 years; it was to commence on 1 June 2012 with the option to renew for a further 20 years; and rent was $6,000 per annum to be reviewed every 10 years.
20. 	On 17 July 2012, LDS’ first payment of $6,000 for the period 03/05/12 to 03/05/13 was received by MNRE.  A separate payment of $35,000 was made to “Lilomaiava Sapau Lolesio” on 18 July 2012 as ‘back rent compensation due to the longevity of negotiations on Levi site’.
21. 	On 15 September 2012, Sapa’u requested from MNRE approval of 10 years advance of the lease rent.  MNRE approved 5 years, and LDS paid the invoice of $30,000 on 30 October 2012.
22. 	In November 2012, members of the Lilomaiava family filed with LTC an objection to the LDS lease of Alamutu on the ground that the first defendant had advertised the lease using the ‘Sapa’u’ title when the land in question pertains to the ‘Lilomaiava’ title.
23. 	On 10 July 2013, the lease was formally registered pursuant to registration No. 40836.
24. 	Further arising from the lease, the Alii and Faipule of Alamutu, and Alii and Faipule of Levi Saleimoa filed petitions against the defendants to prevent the establishment of the LDS church at Alamutu, on the basis that only 3 religious denominations were allowed in the village.  By decision LC11861P1 – P2, 19 September 2013, the petitions were dismissed by the LTC in favour of the defendants.
25. 	On 13 October 2017, the respective applications by both Alii and Faipule of Alamutu and Levi Saleimoa for leave to appeal the 19 September 2013 decision were denied by the President of the LTC.
26. 	In November 2017, LDS received from Sapa’u a letter of 30 October 2017 questioning for the first time, the validity of the lease.  In subsequent meetings involving his children to resolve issues, the defendants’ general concern was that – the land had been available for LDS and the lease should have commenced from 2002 upon confirmation of the intention to lease by the LTC, and not 2012.  They raised that they should have been paid more money under the lease; and no consultation was carried out with them.  Essentially, they sought to renegotiate the terms of the lease.
27. 	On the other hand, LDS maintained that no proper grounds existed to renegotiate or terminate the lease.  The delay had been due to a dispute between the defendants and members of their family over boundaries and ownership of ‘Alamutu’; and the parties exploring the possibility of purchasing freehold land from Sapa’u which after much discussion, the church found not viable and the parties agreed to walk away from.
28. 	The church further raised that it never occupied the land because there was no lease agreement or arrangement.  Only in late 2011 did Sapa’u approach LDS to reconsider reverting to discussions of the Alamutu land lease; the church agreed and in consultation with Sapa’u as beneficial owner, the land was surveyed, the terms discussed and agreed, and lease processed and granted by the Minister through due process.
29. 	Despite meetings involving LDS officials, the defendants and MNRE, the second third and fourth defendants threatened to terminate the lease and stop LDS’ construction works on the land.  On more than one occasion, Sapa’u objected to the position taken by his children and maintained ‘e alofa i le Ekalesia’. 
30. 	In December 2018, the defendants petitioned the LTC for orders to terminate the lease, stop all works and remove all of the church’s properties on the land.  The petition was withdrawn and dismissed on 18 September 2019 on the basis of a ruling by its President that LTC had no jurisdiction to deal with challenges concerning the validity of a lease agreement.
31. 	In subsequent meetings between the parties, the defendants informed the church they would take the matter to the Supreme Court.  Instead on 23 September 2019, LDS received a No Trespass letter addressed to the church and MNRE advising that as at 12noon that day, no one was allowed to enter onto the land.  To ensure the safety of their workers, LDS ceased works after the letter was received.
32. 	By the following day, the defendants had locked the church’s gate with their own padlocks and refused LDS and MNRE’s requests for a meeting to resolve the dispute.
33. 	On 9 October 2019, LDS filed an application for interim injunction to stop the defendants from entering onto the land, and continuing to interfere with the lease, the church’s immediate possession of the land and its quiet enjoyment of the property pursuant to the lease.  The Court granted the injunction and issued orders on 10 October 2019.
34. 	The defendants refused to comply and LDS filed Motions for Orders for contempt against all defendants.  Following several mentions, the defendants consented to remove their padlocks on 29 November 2019.
35. 	A subsequent application by the defendants to rescind the first plaintiff’s interim injunction was dismissed by the Chief Justice on 15 July 2020.
36. 	Under its construction contract with Craig Construction Ltd, LDS was charged penalty fees at $1,755.00 per day for every day it was unable to complete construction.   Construction was delayed for 49 days because of the defendants’ actions.  For that period, LDS was charged and paid Craig Construction Ltd the revised amount of $50,025.60.
(a)	Is the Lease Agreement between the Minister (acting on behalf of the First Defendant) and First Plaintiff valid?
Alienation of Customary Lands Act 1965
37. 	The leasing and licensing of customary land is regulated by the Alienation of Customary Lands Act 1965 as it was then known.  The relevant provisions are as follows:
	“PART II
	LEASING AND LICENSING
	3. Prohibiting some leases and licences – It shall not be lawful to lease or licence any customary land for any agricultural or pastoral purpose to any Samoan who is not for the time being holder of a Matai title.
	4. Power to grant lease or licence – Subject to section 3 of this Act, the Minister if in his opinion the grant of a lease or licence of any customary land or interest therein is in accordance with Samoan custom and usage, the desires and interests of the beneficial owners of the land or interest therein and the public interest, may grant a lease or licence of that customary land or interest therein as trustee for such owners:
(a)	For an authorised purpose approved by the Minister;
(b)	...
(c)	…
(d)	For such rent or other consideration payable to the Chief Executive Officer, reviewable or not, and if reviewable at such intervals or on such occasions and in such way, as may be approved by the Minister, and
(e)	Subject to such other covenants, conditions and stipulations as may be approved by the Minister:
…
	5. Application to grant lease or licence - Whenever any Samoan claiming to be a beneficial owner of any customary land or of any interest therein desires that the Minister shall grant a lease or licence of such land or of any interest therein under the powers conferred by section 4 of this Act, such Samoan shall make written application in that behalf to the Chief Executive Officer.
	6. Form of application – (1) Every application under section 5 of this Act shall propose a beneficial owner or beneficial owners of the customary land or interest therein desired to be leased or licensed as the agents of all beneficial owners, to whom the Chief Executive Officer or the Chief Executive Officer of the Ministry of Finance may account for the rent or consideration to be derived from the lease or licence of that land or interest.
	(1A) Every application under section 5 of this Act shall also state the full names, occupation and address of the proposed lessee or licensee, and what the applicant and the proposed lessee or licensee propose as to:
(a)	Whether a lease or a licence is to be entered into;
(b)	The authorised purpose of the lease or licence;
(c)	The term of the lease or licence, and of any right of renewal thereof;
(d)	The rent or other consideration, when it is to be paid, and any rights of review thereof; and 
(e)	Any other covenants, conditions and stipulations.
	(2) Every application under section 5 of this Act shall otherwise be in such form and give such information as the Chief Executive Officer may prescribe.
	7. Requiring survey – If the application does not, in the opinion of the Chief Executive Officer, sufficiently describe the land or interest desired to be leased or licensed, the Chief Executive Officer may require the applicant to provide or pay for a survey of such land or interest, and may refuse to proceed further until such survey has been provided, or paid for by the applicant and made by the Chief Executive Officer.
	8. Publishing of application – (1) Except as provided in subsection (3) of this section, the Chief Executive Officer shall publish in the Savali the main particulars of each application received by him under section 5, including the names of the proposed agent or agents.
	(2) With each such publication of particulars of an application, the Chief Executive Officer shall publish in the Savali a notice fixing a date or period, not being less than 3 months from the date of the publication, not later than or within which, and a place at which, written objections to the proposed leasing or licensing or to the proposed agent or agents may be lodged with the Registrar by any Samoan who claims that he would be affected thereby.
	(3) The provisions of subsections (1) and (2) shall not apply:
	(a) If the Samoan who makes the application under section 5 and the proposed agent or agents have been held by the Land and Titles Court to be beneficial owners of the customary land or interest therein in respect of which the application is made, or
	(b) …
	9. Disposal of objections – The Registrar shall, as soon as conveniently may be after receiving any objection, prepare, sign and file a petition to the Land and Titles Court for the purpose of having that objection heard and disposed of; and send a copy of the objection to the Chief Executive Officer, and another copy to the applicant.
	…
	10. Preparation and completion of lease or licence – Within 1 year of the date when all objections to the application have been disposed of, or when the date or the period not later than or within which objections may be lodged has expired without any objection being lodged, and when the Chief Executive Officer has informed the applicant that the Minister is of the opinion as required by section 4, whichever later occurs:
	(a) The applicant shall have a draft of the lease or licence complying with the Minister’s approvals under section 4 of this Act prepared by his solicitor at the cost of the proposed lessee or licensee, and submitted to the proposed lessee or licensee and the Chief Executive Officer for perusal;
	(b) When the draft has been approved by the applicant, the proposed lessee or licensee and the Chief Executive Officer, the applicant shall have one original and 2 carbon copies typed and submitted first to the proposed lessee or licensee, and after execution by him to the Chief Executive Officer for execution by the Minister; and
	(c) The applicant shall then register the lease or licence with the Registrar of Land.
	(2) On written application being made to the Minister before or after the expiration of that period of one year, and on proof to the satisfaction of the Minister that the action required by subsection (1) has not been or cannot be completed within that period because of some reasonable cause, the Minister may extend that period.
	11. Payment of rent or other consideration – (1) Every such lease or licence shall operate as if it was a lease or licence as the case may be of public land, but the rent or other consideration derived therefrom shall be received by the Chief Executive Officer in trust for the beneficial owners of the land or interest therein as the case may be.
	(2) It shall be unlawful for any lessee or licensee under any lease or license granted under this Act to pay any such rent or other consideration directly to any such beneficial owner.
	(3) …    ”
Savali Publication 28 November 2001
38. 	The defendants submit that the publication is likely to be invalid and void because it was made without a written application; and referred to the ‘Sapa’u’ title instead of ‘Lilomaiava’ as sa’o of the family that the land ‘Alamutu’ pertains to.
39. 	I do not agree.  It is not disputed that the November 2001 publication was made years prior to May 2012 when the written application was filed.  But it is not uncommon that notice of a beneficial owner’s intention to alienate customary land is publicised, and any objections are first determined before the terms are finalised and lease agreement is executed by the parties.  In fact section 8(3) of the Act clearly recognises that at the time of application, an applicant may have already been confirmed the beneficial owner by a LTC decision, in which case the requirement for publication will not be necessary.
40. 	As to reference to the ‘Sapau’ title instead of ‘Lilomaiava’, whilst I accept as proper that the correct title under which the land is beneficially owned is referred to in the publication, I am not satisfied in the circumstances of this case that it should render the 2001 publication void.
41. 	Firstly there is no dispute that ‘Alamutu’ belongs to the ‘Lilomaiava’ title.  At the time of publication the first defendant was holder of both ‘Lilomaiava’ and ‘Sapau’ titles from Levi Saleimoa.  He is one and the same person recognised by LC10421 and subsequent decisions of the LTC as having authority over ‘Alamutu’.  Secondly the name of the beneficial owner and boundaries contained in the publication were given to MNRE by the first defendant himself.  The Ministry would not have obtained the information otherwise.  At page 49 of the transcript, Sapa’u conceded under cross examination by counsel for the first plaintiff as follows:
	“Ms Hazelman:	E sa’o sa e malie sa faaali lou finagalo malie e fai le faasalalauga, sa’o lea a?
	Witness:	Ia o lea lava ma le faaaloalo lava.
	Ms Hazelman	… O le kopi lena o le faasalalauga sa fai e le savali i le aso 28 Novema 2001 e patino i lou fanua i Alamutu.  E tagai atu i le faasalalauga lena?
	Witness:	O lea lava ma le faaaloalo lava.
	Ms Hazelman:	E sa’o la sa faaalia lou finagalo malie e lisi lou fanua i le ekalesia?
	Witness:	Ma lou faaaloalo lava o lea lava.
	Ms Hazelman:	Faamolemole Sapau i le ogatotonu o le faasalalauga, o loo ta’ua mai ai upu ma e tuaoi i Matu ma Umu Sae, Saute ma Leiataatimu Tupu, Sasa’e ma le auala galue, Sisifo ma Lilomaiava Puleina, sa’o lea?
	Witness:	Ma le faaaloalo lava o lea lava.
	Ms Hazelman:	E ala na iloa e le matagaluega tuaoi ia ona o oe sa ta’ua iai tuaoi ia, e sa’o lea?
	Witness:	O lea lava.
42. 	It is also important that in numerous determinations concerning ‘Alamutu’ before the LTC, no issue was ever made of the reference to the ‘Sapa’u’ title until the defendants’ statement of defence was filed in 2020, 19 years after publication of the lease to LDS was confirmed.
43. 	I find that the publication was made at the request and on instructions of Sapa’u, and complied with the provisions of the Act.
Application to lease customary land – May 2012
44. 	The defendants also suggest that because the survey was carried out in January 2012 before the application was lodged in May and paid for by the LDS instead of the beneficial owner, it was not therefore in compliance with the Act.
45. 	Under section 7, a survey may only be required if the application does not sufficiently describe the land or interest desired to be leased or licensed.  The evidence is that the survey was conducted on advice by MNRE when the parties resumed lease talks in 2012, and paid for by LDS on request by Sapa’u.  That the LDS was noted on the survey plan as applicant does not in my view render the survey void.  As to the boundaries, I accept the evidence of Vaaulu that it was left to Sapa’u himself to point them out to the surveyor.  No one else could have but Sapa’u himself.    
46. 	It is also contended by the defendants that the lease is void because it was registered outside the one year period prescribed by section 10(c) of the Act, and without an application for an extension under section 10(2).  The lease was approved and signed by the Minister on 28 June 2013 when he was satisfied of the matters under section 4; and registered on 10 July 2013 by computer folio certificate.  The delay in registration is therefore one month outside the prescribed time period.
47. 	Section 10 imposes a timeframe within which a lease must be finalised, executed and registered.  It recognises that one year may not be sufficient and allows under section 10(2) for an application to the Minister to extend the oneyear period before or after its expiration.  But it does not render a lease invalid for failure to register within the one year or registration outside the period in the absence of an extension.  Though a month outside the one year period, the lease had been registered rendering any application for an extension unnecessary.    
Undue influence
48. 	Any suggestion that Sapa’u was pressured and induced by Vaaulu or LDS and / or MNRE to agree to the lease and its terms cannot also be sustained.  On the one hand, Vaaulu denies that he did.  His evidence at page 9 of the transcript states:
	“Ms Hazelman:	It appears the defendant is now saying that you had undue influence over their father the first defendant, what do you say to that?
	Witness:	That is not correct.
	Ms Hazelman:	Why?
	Witness:	With our due respect, … I had never bribed him, influenced him or even tell him what to do in regards to his land.  I have every respect (for) Sapau.  Culturally I am his talking chief.  He’s my ‘tapaau’ and I protected him.  But when we dealt with the lease with the church, I have never bribed him or tell him what to do.  It was on his own.”
49. 	I cannot also find reason not to accept Vaaulu’s evidence that it was Sapa’u who requested the church to revisit negotiations on the lease.  Under cross examination by counsel for the defendants, he says at page 13 of the transcript:
	“Ms Ponifasio:	E te oo atu la i le tulaga o le mataupu lea, ia manatua la o le 2005 lea na e oo atu ai i le tofiga, a o lea e te taua i lau mau ua uma ona fai i luma o le faamasinoga, pei o le 2011 lea na e toe lagaina ai loa le faatalanoaga lea ma Sapau, e sa’o?
	Witness:	O le talanoaga ma Sapa’u, ou te lei lagaina, o Sapa’u a na susū atu ia te au, fai mai e lei toe tafa le finagalo o le ekalesia ae toe tilotilo i le tatou lisi.  Ia na fai atu lea, manaia lea e iai le matou naunautaiga e fia maua se matou fanua i le tatou nuu.  Ia lea na toe amata ai loa o ma feutanaiga.  O lana tala ia te a’u, ta deal taua, aua nei toe amanaiaina se isi o lou aiga.
	Ms Ponifasio:	E iai se isi e molimauina e ese mai ia oe o Sapau na toe alu atu ia te oe e toe laga le mataupu i le falesa?
	Witness:	E leai se isi, o Sapau lava na susū atu.”
50. 	On the other hand, Sapa’u was a respected member of the community.  He had been a police officer for 36 years and once a Member of Parliament.  He was active and healthy, intelligent and independent.  He has held his family’s paramount titles Sapa’u and Lilomaiava for 50 years.  He instructed the Ministry to put a hold on lease talks in 2003, led his family in subsequent disputes in the LTC and on his request, the parties reverted to lease discussions in 2012.  Even at 96 years, I observed him to be of a clear mind and he impressed as wise and genuine in his love and service for his family.
51. 	It was plainly clear that his second, third and fourth defendant children were behind the attempts to renegotiate terms of the lease; and compelled him to testify in support of their counterclaim to declare the lease invalid.  At page 51 of the transcript is his evidence under cross examination by counsel for the first plaintiff:
	Ms Hazelman:	O oe lava sa lua fetuunai ma Vaaulu e uiga i le lisi a le ekalesia Mamona, e sa’o?
	Witness:	Ma le faaaloalo o lea lava.
	Ms Hazelman:	Sa e malie e fai le lisi i le ekalesia Mamona e sa’o lea?
	Witness:	O lea lava.
	Ms Hazelman:	Sa e taliaina foi tupe o le lisi a le Ekalesia Mamona e sa’o lea?
	Witness:	O lea lava
	Ms Hazelamn:	e te taliaina la le lisi a le Ekalesia?
	Witness:	Taliaina ma le faaaloalo lava.
	Ms Hazelman:	O e mana’o e faaauau pea le lisi a le Ekalesia?
	Witness:	Ou te talia ona e toatele foi isi vaega o matou e lolotu ai i le ekalesia. O lea ou te talia, ona e toatele tagata o lo matou nuu e lolotu ai.	
Intention and conduct of the First Defendant
52. 	I also accept the submission by the plaintiffs that Sapa’u’s conduct proves the validity of the lease and such was his intention.
53. 	He caused to be advertised an intention to lease part of his customary ‘Alamutu’ to the LDS church.  He was confirmed the beneficial owner by the LTC.  At his request, he and the church reverted to lease discussions in 2012 after 9 years.  He negotiated the lease with church representatives.  He actively supported the lease and establishment of the LDS church in proceedings before the LTC.  He signed the application to grant lease of customary land.  He accepted separate payment of $35,000 from the church as compensation for the longevity of lease negotiations.  He requested and received on approval by MNRE $30,000 for 5 years advance of the lease rent.  He has continued to collect from MNRE the church’s lease payments, even when his children sought to renegotiate the lease.
54. 	As the confirmed beneficial owner, the LDS was rightly entitled to deal with him during negotiations and following commencement of the lease.  Any concerns raised by his children years after the lease was executed and registered are issues between themselves.
55. 	For the above reasons I find that the lease agreement between the Minister (on behalf of Sapa’u) and LDS was validly made in accordance with the provisions of the Act, and without any undue influence on the part of the church.
(b)	Did the Defendants interfere with and induce a breach of the Lease?
56. 	The elements of the tort of interference with contract are stated in Vitale v. Alii and Faipule of Gagaifolevao Lefaga [2017] WSSC 12 where the late Sapolu CJ states:  
	“(68) ...  I will deal briefly with the tort of inducing a breach of contract. In The Law of Torts in New Zealand (2009) 5th ed by Todd et al, the learned authors state the elements of the tort of inducing a breach of contract at para 13.2, p.606 as follows:
	“The effect of OBG v Allan, then, was to restore the original principles in Lumley v Gye and to confirm that the following elements to liability needed to be shown:
	(1) There must be a legally enforceable contract in existence.
	(2) The defendant must have engaged in conduct which in fact induced a breach of the contract.
	(3) The defendant must have known that his or her conduct would induce the breach.
	(4) The defendant’s conduct inducing the breach must have caused loss or damage to the plaintiff (or if an injunction is sought, there must be clear indication that such loss will occur).
	(5) Even if elements 1 to 4 are satisfied, a defence of justification might arise, albeit only in exceptional circumstances”.
57. 	As to the first element, I have concluded that the Lease 40836 between the Minister (acting on behalf of the first defendant) and LDS was validly made in accordance with the provisions of the Act.
58. 	In respect of the second element, I am also satisfied that the defendants engaged in conduct which in fact induced a breach of contract.  Under Clause 9.1 of the Lease Conditions it is provided:
	“Provided that the lessee pays rent and other outgoings on time and otherwise complies with the lessee’s obligations under this lease, the lessor must allow the lessee to possess and use the land in any way permitted under this lease without hindrance or interruption by the lessor or any other person claiming by, through or under the lease.”
59. 	It is not disputed that following the defendants attempts to renegotiate terms of the lease without success, they issued on the church and MNRE on 23 September 2019 a letter advising that as at 12noon that day, no one was allowed to enter onto the land that was subject to the lease.  To ensure that their workers were not at risk, the church then ceased works from the time the letter was received.  Further by the following day, the defendants had locked the church’s gate with their own padlocks and refused the church and MNRE’s requests for a meeting to resolve the dispute.
60. 	The defendants further failed to comply with an injunction granted by the Court on 10 October 2019 to stop them from entering onto the land, and continuing to interfere with the lease.  It was only after the plaintiffs filed Motions for Orders for contempt against all that they consented to remove their padlocks on 29 November 2019.
61. 	It is not disputed that the first plaintiff had complied with all lease payments under the agreement.  By locking the gates and refusing LDS access, the defendants induced a breach by the Minister of clause 9.1 which expressly provides that “the lessor must allow the lessee to possess and use the land in any way permitted under this lease without hindrance or interruption by the lessor or any other person claiming by, through or under the lease.”
62. 	I am also satisfied the defendants knew their conduct would induce the breach.  They were well aware of the term of the lease, the commencement date and amount of payments.  The sole purpose behind their conduct was to force the Minister not to honour his obligation to allow the LDS uninterrupted possession of the land, and renegotiate the terms so that they were paid more money by the church.
63. 	As to whether the defendants’ conduct inducing the breach caused LDS loss or damage, the undisputed evidence is that construction was delayed for 49 days because of the defendants’ actions.  Under its contract with Craig Construction Ltd, the church was charged penalty fees at $1,755.00 per day for every day it was unable to complete construction.  For that period, LDS was charged and paid Craig Construction Ltd the revised amount of $50,025.60.
64. 	I am also not satisfied there was any lawful justification for the defendants conduct.  Again the lease was negotiated, entered into and registered following due process.  Under no circumstances can the defendants’ conduct inducing the breach be justified.
(c)	Did the Defendants interfere with the first plaintiff’s possession or rights to possession under the Lease?
65. 	“Trespass to land is interference, without justification, with possession or rights to the immediate possession of land. The concept of “possession” in the context of the tort of trespass to land cannot be explained in a few words and its exact parameters have not been exhaustively defined: see, for example, Winfield and Jolowicz on Tort (1994) 14th ed by W V H Rogers at pp 384-385; The Law of Torts in New Zealand (1997) 2nd ed by Todd et al at para 8.4.3 at pp 469-473 which are the latest editions of those two texts available to the Court.”
66. 	“The tort of trespass to land is primarily concerned with the protection of possessory rights to land rather than with the protection of rights of ownership to land. The Law of Torts in New Zealand (1996) 2nd ed by Todd et al in para 8.4 pp 466-467 the learned authors state:
	“The action for trespass to land is primarily intended to protect possessory rights, “rather than rights of ownership. Accordingly, the person prima facie entitled to sue “is the person who had possession of the land at the time of the trespass. Actual “possession is a question of fact, which consists of two elements: the intention to “possess the land and the exercise of control over it to the exclusion of other persons. “In the case of land which has been built on, possession may be evidenced by “occupation of the building. If the building is vacant, possession may be indicated by “possession of the key or other method of obtaining entry. In the case of land which “has not been built on, possession may be evidenced by acts done in relation to it. “Even in the absence of such acts, possession may be presumed from proof of “ownership in the absence of evidence that another is in possession.”
67. 	The court must therefore be satisfied (a) the plaintiff was in actual possession of the land – he intended to possess the land and exercised control over it to the exclusion of other persons; (b) the defendants interfered with the plaintiff’s possession of the land; and (c) there was no lawful justification for the defendants’ interference.
68. 	As to the first element, there is no dispute LDS had been in actual possession of ‘Alamutu’ at the time of the defendants’ interference.  It took exclusive possession following the commencement of its lease on 1 June 2012 and construction on the property commenced in 2018.  In September 2019 when the defendants locked the gates with their own padlocks and caused construction to cease, the works were near completion.
69. 	In respect of the second element, I am also satisfied that by issuing a no trespass demand on both plaintiffs, locking the gates with their own padlocks and refusing both plaintiffs access to the land, the defendants interfered directly with the first plaintiff’s possession of the land.
70. 	Lastly I am further satisfied there was no lawful justification for the defendants’ interference.  The lease was properly negotiated between Sapa’u, beneficial owner of ‘Alamutu’ and representatives of LDS; and formally entered into by the Minister (acting on behalf of Sapa’u) and the LDS in accordance with the provisions of the Act.  LDS had complied with its obligation under the lease to pay rent and was rightfully entitled to exclusive possession of ‘Alamutu’ for the duration of the lease.
71. 	I find that the First Plaintiff’s claim in trespass to land against the defendants has been made out.
Unjust Enrichment
72. 	Given my findings on the plaintiffs’ causes of action in intentional interference with contract and trespass to land, it will not be necessary to consider the submission by the first plaintiff on unjust enrichment as an alternative cause of action. 
Exemplary Damages
73. 	The second plaintiff claims exemplary damages of $50,000 against the second third and fourth defendants on the basis that they were not the beneficial owners and had no right to interfere with its lease. 
74. 	The second third and fourth defendants are in the broader sense ‘beneficial owners’ of the land who later sought to be included in discussions concerning the lease.  But they also well knew that as holder of the ‘Lilomaiava’ title and confirmed beneficial owner; their father negotiated the lease with the assistance of MNRE; and signed the application for a grant of lease by the Minister.  Yet years into its commencement, they directly and intentionally interfered with the lease by locking the gates and refusing the church access.  Their subsequent failure to comply with an injunction granted by the Court on application by the first plaintiff was a deliberate disregard of the law and due process. 
75. 	I assess exemplary damages at $10,000.
Conclusions
76. 	For the reasons abovementioned, I have reached the following conclusions:
(a) 	That the Lease No. 40836 of Lot 1 Plan 10455 being customary land known as “Alamutu” at Levi Saleimoa by the First Plaintiff from the Second Plaintiff (on behalf of the First Defendant) was validly made in accordance with the provisions of the Act and is legally binding;
(b) 	That the defendants’ conduct constitutes intentional interference with contract and induced a breach of the Second Plaintiff’s obligation to allow First Plaintiff uninterrupted possession of the land;
(c) 	That the defendants’ conduct further constitute trespass to land against the First Plaintiff.
Orders 
77. 	I make the following Orders:
(a) 	Judgment is entered in favour of the First and Second Plaintiffs;
(b) 	The Defendants’ Counterclaims against the First and Second Plaintiffs are both dismissed in their entirety;
(c) 	A Permanent Order is made for the immediate and exclusive possession of the land in favour of the First Plaintiff in accordance with the Lease;
(d) 	A Permanent Order is also made restraining the First Second Third and Fourth Defendants, their families and agents from interfering with the First Plaintiff’s immediate and exclusive possession of the land; and quiet enjoyment guaranteed under the Lease;
(e) 	The First Second Third and Fourth Defendants are ordered jointly and severally to pay to the First Plaintiff Special Damages of $50,025.60 for loss incurred as a result of the delay in construction;
(f) 	The Second Third and Fourth Defendants are ordered jointly and severally to pay to the First Plaintiff exemplary damages of $10,000;
(g) 	The First Second Third and Fourth Defendants are, jointly and severally, to pay costs of $5,000 each in favour of the First and Second Plaintiffs.
78. 	Lastly, I apologise to all parties and counsel for the delay in handing down this decision.
JUSTICE ROMA