IN THE COURT OF APPEAL OF WESTERN SAMOA
HELD AT APIA

C.A. 1/93

BETWEEN

SAMOA SNACK FOODS LIMITED
a duly incorporated company having its registered office at Apia
Appellant

AND:

THE PUBLIC TRUSTEE
as Administrator of the Estate of PHOEBE THERESA VOIGHT, deceased
Respondent

Coram: The Rt. Hon. Sir Gordon Bisson, President
The Hon. Sir John Jeffries
The Hon. Mr Justice Lussick

Hearing: 30 March 1994

Counsel: Mrs R. Drake for Appellant
T.V. Eti for Respondent

Judgment: 31 March 1994

JUDGMENT OF THE COURT DELIVERED BY SIR JOHN JEFFRIES

This case is about a piece of land centrally situated in Apia and which we were informed has significant value. The area is 0a 3r. 38p. and there is a house on it occupied by a family which has descended from one of the original owners. As will be shown later in this judgment ownership of the land has greatly spread.

It is best we think to begin with a short history of the land in so far as the Court was informed about it. The land was originally owned by Rasmus Clausen Fabricius, and in 1929 the real property was conveyed by the Samoan Public Trustee to his four children as follows:

(i)	Gustav Rasmus Fabricius
(ii)	Marie Hanoine Fabricius
(iii)	Phoebe Theresa Fabricius
(iv)	Bernard Ertel Fabricius

This conveyance seems to have been done before the original owner's widow Mrs Rasmus Clausen Fabricius married Mr. Sauni by whom she had three further children namely:

(i)	Marie Sauni
(ii)	Mietze Sauni
(iii)	Annie Sauni

Gustav Rasmus Fabricius died unmarried and without children. He apparently left no will and the Public Trustee became administrator of this estate in 1940. It seems Mrs Sauni, who was Gustav's mother and would have been her son's only beneficiary gave a direction to the Public Trustee to convey Gustav's ¼ share in the property to her three remaining children by Rasmus Clausen Fabricius in the share of 1/21 each and her 3 children of her second marriage as to 1/28 each. Those six children then held a share in the land.

In summary after this conveyance the three remaining children of Rasmus Clausen Fabricius owned a ¼ share plus 1/21 of a ¼ or 175/588 each. The three Sauni children owned 1/28 of a ¼ or 21/588 of the total.

We turn now to Phoebe who was married once to Walter Wilham Voight. She died in 1980 leaving six children of whom Raymond Christian Voight was one. He returns to the case later. Mrs Phoebe Voight's share in the land was the ¼ supplemented by 1/21 as set out above.

Mrs Voight died intestate on 17 May 1980 and in 1986 at the request of beneficiaries Grant of Administration in her estate was made to the Public Trustee. We are afraid that little progress has been made towards completion of administration because there is no money in the estate. In fact the Public Trust is owed about $440 and so far the six beneficiaries have not taken much interest. Apparently Raymond Voight was asked by his parents to live on and take care of the property. Since about 1944 only Phoebe and her descendants have lived on the land. We were told the other co-owners of this share live overseas.

We now turn to recent times. On 24 February 1987 the ¼ + share of Marie Hanoine Massey (nee Fabricius) was sold to the appellant by the beneficiaries of her estate. Within a few days on 16 March 1987 Bernard Ertel Fabricius also sold his ¼ + share to appellant. Mr Toailoa on behalf of his client Mr Raymond Voight claimed he knew nothing about those sales for a very long time, and we find that strange. Mr Toailoa says his client is contemplating a claim, based on some equitable remedy he told us, for ownership of the whole piece of land in the title. That, of course, is nothing to do with us and proceedings have been filed.

Appellant company now owns over half of the land and wishes to put to use its asset. It is apparently Mr Voight who stands in the way. To attempt to break the deadlock appellant's solicitors on its behalf lodged a claim for an Order of Partition and an Order for possession in favour of its share of the land. The claim was lodged on 17 August 1992. It is important to introduce at this point a fact of importance. At a date not known but before the proceedings just mentioned were issued Mr Voight had lodged a caveat against the title. We will return to that point.

For the sake of completeness a further matter is worth mentioning. The three Sauni sisters may be ready to agree to the claim of appellant. We were told Mr Kamu who is solicitor for Marie Fong (nee Sauni) has already indicated her agreement, but apparently her two sisters Mietze and Annie have not yet made a definite decision. We understood they both live overseas. Mrs Fong was named as a defendant in the first set of proceedings which makes it odd why Mr Voight, with a greater interest, was not.

Shortly after proceedings were filed by appellant Mr Toailoa made application to be joined as a party. That application was filed on 23 October 1992. The case came before the learned Chief Justice on 2 November 1992 when as stated in the Ruling it was "On application to be joined as a Party ". It would seem from a reading of the Judgment delivered on 10 November 1992 the case got onto a side line whether or not a claim for partition was maintainable at law against the Public Trustee as administrator of the estate. That finished unresolved with the case adjourned for further argument. It was called again for another hearing on 15 December 1992 and that Judgment will be referred to hereafter.

It is convenient at this point to dispose of Mr Voight's application to be joined as a Party. We have no doubt he has standing in this case. He has the greatest single interest in the land outside of appellant. His actual share may be no higher than the other five siblings but he lives on the property and apparently has done so, perhaps for his whole life, but we are not sure. Apart from the question of who in law the appellant is able to sue Mr Voight understandably wants to have a presence in the courtroom when any decisions are made about this land. He is entitled to say: I want to advance my argument to the Court no matter what the Official Administrator of the estate might say as defendant. Furthermore he has lodged a caveat and few would dispute with his history he has a caveatable interest. For these reasons during the hearing we made an order joining Raymond Christian Voight as party. Any subsequent order required pursuant to this order may be made on application to the Supreme Court.

We now return to the central point whether appellant has a claim maintainable at law against the Public Trustee as Administrator for a partition order. In his judgment of 15 December 1992 the learned Judge held otherwise and struck out appellant's claim. It is unclear exactly on what ground he took this action. He finished his judgment by saying the action could be brought against the beneficiaries of the estate after the administration was completed. Even in that eventuality he held out the possibility it could again be argued.

Prima facie a partition order may be made in Western Samoa pursuant to s.140 of the Property Law Act 1952 of New Zealand which is in force in Western Samoa. If that is accepted then the only remaining issue is whether the Public Trustee is the proper defendant in a claim concerning realty.

We are of the opinion the Public Trustee as administrator may be sued in respect of the application by appellant for a partition order. The Public Trustee has undertaken administration of the estate and as a matter of principle and common sense matters connected with the estate which have to be litigated in the Court should be allowed to proceed.

We quote from Garrow and Alston Law of Wills and Administration, 5th edition at p.520 para 43.46:

"In all actions concerning the real estate of a deceased person his executor or administrator represents the real estate and the persons interested in it in the same manner and to the same extent as he represents the personal estate: Administration Act 1969, s.29".

We also refer to para. 43.47 which follows this extract dealing directly with partition.

The Order striking out appellant's action against the Public Trustee is quashed and the action may therefore continue to trial at which the application for a partition order is to be decided in the usual way.

Costs on this appeal are reserved.

Solicitors:
Drake & Co., Apia for Appellant
Public Trust Office, Apia for Respondent