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Telesi v Public Trustee [2012] WSCA 9 (1 June 2012)

COURT OF APPEAL OF SAMOA

Sauaga Telesi v The Public Trustee and Tautalafua [2012] WSCA 9

Case name: Sauaga Telesi v The Public Trustee and Tautalafua

Citation: [2012] WSCA 9

Decision date: 1 June 2012
Parties:
FILITAA SAUAGA TELESI (Appellant) and THE PUBLIC TRUSTEE and TAULAU AUIMATAGI TAUTALAFUA (Respondents)

Hearing date(s): 30 May 2012

File number(s): CA27/10

Jurisdiction: Civil

Place of delivery: Mulinuu
Judge(s):
Honourable Justice Baragwanath
Honourable Justice Fisher
Honourable Justice Galbraith

On appeal from:

Order:
Representation:
Toleafoa Toailoa for Appellant
Semi Leung Wai for Respondents

Catchwords:

Words and phrases:

Legislation cited:

Cases cited:

Summary of decision:

IN THE COURT OF APPEAL OF SAMOA

HELD AT MULINUU

FILE NO: CA27/10

BETWEEN:

FILITAA SAUAGA TELESI

Appellant

AND:

THE PUBLIC TRUSTEE and TAULAU AUIMATAGI TAUATALAFUA

Respondents

Coram: Honourable Justice Baragwanath

Honourable Justice Fisher

Honourable Justice Galbraith

Hearing: 30 May 2012

Counsel: Toleafoa Toailoa for Appellant

Semi Leung Wai for Respondents

Judgment: 1 June 2012

JUDGMENT OF THE COURT

1. This is an appeal against a decision of the Supreme Court given on 1 November 2010. The background to that judgment is a dispute as to the entitlement to a parcel of freehold land situated at Tufuiopa near Apia. The land was purchased pursuant to a deed dated 16 September 1942 by “Auimatagi of Tufuiopa near Apia aforesaid Samoan male and Fiti his wife.”
   
2. The two principal issues contested before the Supreme Court were:
   • (1) The date of death of the joint purchaser, described in the deed as Fiti, wife of Auimatagi, variously alleged to be 1962 or 1965;
   • (2) The identity in the deed of purchase of the other joint purchaser “Auimatagi of Tufuiopa near Apia aforesaid Samoan male.” The contest in this respect is between identification of Auimatagi as Auimatagi Levao who died in 1964 and as Auimatagi Eteuati Ropati whose date of death was unknown.
3. In the Supreme Court it was held that Fiti’s date of death was 1965 as evidenced by a death certificate produced by the second respondent’s principal witness, Sina Taulau Auimatagi. The Court also determined that the reference to Auimatagi in the deed was to Auimatagi Eteuati Ropati.

When did Fiti die, 1962 or 1965?

4. Two death certificates for Fiti were in evidence before the Supreme Court. The judgment at page 5 compares the contents of the two certificates:

5. The late 1965 certificate had been deleted from the Register because of a policy preference in favour of earlier in time certificates. However, Slicer J was persuaded on the evidence to prefer the later 1965 certificate, holding:

“The court accepts the combined evidence of the witnesses who said they attended Fiti’s funeral in 1965, the records of the Methodist Church, the discrepancies in the 1962 certificate and the accuracy of the 1965 document conforming to the proven dates of birth and marriage and the identity of Eteuati.”

6. As evidence was that Auimatagi Levao, one of the contenders as purchaser under the 1942 Deed, died in 1964 the acceptance of the 1965 certificate for Fiti’s death meant that she would have taken as survivor and so the ownership interest which Auimatagi Levao would have had if he was the purchaser named in the Deed would have vested in Fiti. If that 1965 death certificate does correctly record Fiti’s death in 1965 it becomes irrelevant who was referenced as Auimatagi in the 1942 Deed and it would be the heirs of Fiti who would be entitled to ownership of the land.
7. There are a number of reasons why, in this Court’s view, the 1962 death certificate must be preferred over the 1965 certificate. The Court notes that it is clear from the transcript of evidence that this was also the view held and applied by the Registrar of Births Deaths and Marriages who gave evidence in the Supreme Court regarding the authenticity of the two differing death certificates.
8. In our view the Registrar’s evidence contains a decisive reason which was not commented upon in the judgment below and may not have been sufficiently emphasized in submissions. At page 7 of the transcript of his evidence the Registrar told the Court:

“... there is a manual number for the 1962 record & it’s still in the register w/me and that number is 038/62U; the manual numbering at that time, 62U means the death was recorded within in regulated time period for the registration of deaths. U stands for Upolu, this island.”

9. He went on to say:

“the informant in this 1962 record was a person named Loini; it’s a need of the deceased”; and

“the recording of the death certificate was according to the information provided to the hospital, this card.”

10. What the Registrar was therefore saying was that the 1962 death certificate was the result of information recorded by the hospital where Fiti died from a niece of Fiti’s and received by the Registrar in 1962 as evidenced by the manual entry number 038/62U.
11. Obviously Fiti could only die once. If the hospital information and the information from the niece as to Fiti’s death was received by the registry in 1962, as the Registrar’s evidence states, there is simply no room for considering the later certificate recording her death in 1965 as correct.
12. In the Supreme Court the Judge did raise the possibility that there might be two Fiti’s but this possibility was not pursued by any counsel. Whether or not there could have been two Fiti’s the evidence before the Court was clear that the Fiti who died in 1962 was the Fiti associated with the land at Tufuiopa.
13. In this Court’s view the evidence of the Registrar as to the manual entry and to the source of the information in 1962 is alone enough to validate the authenticity of the 1962 death certificate. In fact there was other significant evidence which confirms that position.
14. Evidence was given as trial by two family members, Liona Teleaga and Eleni Mason, both of whom confirmed from personal knowledge that Fiti predeceased Levao. Both had attended Fiti’s funeral. Despite Slicer J’s reference in para. 43 of the judgment to witnesses who attended Fiti’s funeral in 1965, no witnesses of fact gave such evidence.
15. Liona’s and Eleni’s evidence also identified Fiti and Levao as attending the L.M.S Church, now known as the Congregational Church of Samoa. In this court application was made to produce as further evidence an entry in the record book of the Congregational Church in Apia which (in English translation) reads:

“1. Fiti Levao – Died on 24/5/62

She was taken to hospital – Recurring sickness – was pneumonia – Had her funeral at Malie – It is believed she was over 80 years old – She is the wife of Levao, a Deacon – Was Pita who gave the sermon but was Faulalo who officiated and who gave the eulogy. She was a very brave and courageous woman.”

16. That entry is obviously confirmatory of the 1962 death certificate, including the name of the Minister who both witnesses identified as officiating at the funeral. It was also of some relevance in noting Levao, who was a deacon of the Church, as the husband of Fiti.
17. The application for leave to adduce this evidence was opposed by the respondents, principally on the ground that it had existed and with reasonable diligence could have been discovered at the time of the earlier hearing. We accept that as correct but the evidence is of direct significance, confirmatory of other evidence, and without any apparent foundation for challenge. In those circumstances we will admit that evidence.
18. Given the evident authenticity of the 1962 death certificate there has to be a question as to the provenance of the 1965 certificate. It was said to be derived from a Methodist Church record of the burial of Fiti. However, the record book, once produced to the court, showed the entry as subsequent to entries of burials in 1985, 1986, 2000 and 2004. Obviously the record was not contemporaneous. The Registrar gave evidence that he had failed to get a satisfactory explanation despite enquiry from the secretary of the Church. The Registrar offered to enquire further as to who had provided the information which was entered into the Methodist record and the certificate but somewhat surprisingly no counsel requested that further enquiry.
19. In any event it is not necessary for this Court to seek to determine that question as the authenticity of the 1962 certificate is established by the evidence to which we have referred.

Auimatagi Levao or Auimatagi Eteuati Ropati?

20. Given our conclusion that the 1962 death certificate is to be preferred, it is necessary to determine whether the reference to Auimatagi in the 1942 Deed is a reference to Auimatagi Levao or Auimatagi Eteuati Ropati. The judgment in the Supreme Court concluded in favour of Auimatagi Eteuati Ropati. That finding was contrary to the almost inevitable inferences to be taken from the evidence of three witnesses who lived or visited Tufuiopa in the 1940’s, 1950’s and 1960’s and knew Fiti and Levao as husband and wife but he never saw or knew of an Auimatagi Eteuati Ropati.
21. The first of these witnesses, Tagaloamatua T. Seumanutafa, was born in 1931. His father was adopted by Fiti and Auimatagi Levao. He visited Tufuiopa as a child, in particular because of the swimming pool there, identified Auimatagi Levao and Fiti as living on the land and, so far as he was concerned, as husband and wife, identified those he believed to be their children living on the land including Teleaga, the father of Liona Teleaga, and grandfather of Eleni Mason.
22. He gave evidence that in his 20’s he was sent on errands for his father to Tufuiopa and again identified Fiti and Levao in that period at Tufuiopa with Teleaga as their main support. He said that he had no knowledge of an Auimatagi Eteuati Ropati. He also knew and recalled two of the three persons named in the 1942 Deed as the vendors of the land. While he did say under cross examination that his memory was no longer perfect, in fact his evidence is impressive in his recall of events and people from so long ago.
23. The second witness, Liona, was born in 1942. He grew up at Tufuiopa until he went to American Samoa in 1964. His evidence was that while he was living at Tufuiopa he believed that his father’s parents were Fiti and Auimatagi Levao and that he was at Tufuiopa when his grandmother, Fiti, died in 1962.
24. He also gave evidence that his father told him that he had bought the land and put it in the name of his parents, Fiti and Auimatagi Levao. We were informed from the Bar that this is not unusual in Samoan society as a gesture of respect and thanks to parents.
25. When Liona left Samoan in 1963 his mother, father and his brothers and sisters were living on the land at Tufuiopa in a two storied house. When he came back in 1971 one of the sons of his father’s brother, Afualo Taufaiu, was also living on the land with his children.
26. The third, Eleni Mason, was born in 1951 and also grew up at Tufuiopa. Again she gave evidence of Fiti and Levao as husband and wife, of attending Fiti’s funeral, and of her mother caring for Levao until he died in 1964.
27. She also gave evidence of the construction of the two storied house in which she and her grandparents lived, which was habitable but not completed in 1960. Her and Liona’s evidence was consistent that Tofia, the son of Afualo Taufaiu, did not come to live at Tufuiopa until after 1966. Her evidence was that she always believed from what her grandmother told her that Teleaga, her grandfather, had bought the land at Tufuiopa in the name of his parents.
28. Both Liona and Eleni Mason gave evidence that they had no knowledge of an Auimatagi Eteuati Ropati and said that he was unknown to their family.
29. Accordingly the three witnesses of contemporary fact all identified Fiti and Auimatagi Levao as husband and wife, on the land at Tufuiopa, in the case of one witness from the early 1940’s, in Leona’s case as he grew up on the land after being born in 1942, and in Eleni’s case as she grew up on the land after being born in 1951.
30. These were the only witnesses of contemporary fact. The only relevant fact witness for the second respondent was Sina whose evidence was derived from documents, such as the 1965 Methodist Church record and the 1965 death certificate, and what she said her father had told her. Among the documents which she produced was a birth certificate for Fiti showing a date of birth of 1890 and a marriage certificate for Fiti and Auimatagi Eteuati Ropati from 1915. The marriage certificate itself must have been a secondary record as the handwritten entry is on a form that followed the founding of independent Samoa in 1962.
31. The other documents produced by Sina on which the Supreme Court Judge placed reliance was an entry in a record book of the bestowment of the title Auimatagi to one Uati with a date in handwriting of 4 October 1954. Sina’s evidence was that Uati was a shorthand reference to Eteuati and that the 1954 entry related to the bestowal of Auimatagi on Eteuati Ropati.
32. There was no direct evidence corroborating that interpretation and if the date of 1954 was correct it would of course be inconsistent with the use of that title in the Deed of 1942 and also inconsistent with the fact that none of the three contemporary witnesses identified Auimatagi Eteuati Ropati anywhere in the 1950’s period.
33. The suggestion in the Supreme Court judgment that this record was proof of Auimatagi Eteuati Ropati being alive and living with Fiti after 1942 is accordingly not consistent with the contemporary evidence and is also inconsistent with the second respondent’s proposition that the title of Auimatagi was bestowed on Eteuati Ropati by Fiti’s parents shortly after the 1915 marriage.
34. Nor does the fact that Afualo Taufaiu was also bestowed with the title Auimatagi justify any conclusion as to the time when Auimatagi Eteuati Ropati was living. This Court’s understanding from the evidence is that the title Auimatagi was derived through Fiti’s lineage.
35. And, as we have noted, if the title was only bestowed in 1954 it would be inconsistent for Eteuati Ropati to be referred to as Auimatagi in the 1942 Deed, some 12 years before.
36. The overwhelming weight of the evidence is against the presence of Auimatagi Eteuati Ropati at Tufuiopa in 1942 or after. The final and possibly conclusive piece of evidence is that the Deed of 1942 describes the purchaser as “Auimatagi of Tufuiopa near Apia aforesaid Samoan male.”
37. The evidence before the Court was consistent that Auimatagi Eteuati Ropati was Tongan not Samoan. Auimatagi Levao was Samoan. Mr Leung Wai properly acknowledged that he could not challenge that description contained in the document identified as a Deed.
38. Accordingly for the reasons discussed above, this Court’s determination is that the reference to the joint purchaser with Fiti in the Deed of 1942 is a reference to Auimatagi Levao, who was at that date living at Tufuiopa with Fiti to all appearances as husband and wife.

Consequences

39. Because this Court has taken a different view to that of the Supreme Court on both of the principal issues and has determined:

(1) That Fiti died in 1962;

(2) That the reference to “Auimatagi” in the 1942 Deed is to Auimatagi Levao who was living at Tufuiopa in 1942 and after;

(3) Accordingly that Auimatagi Levao was the survivor and successor to the land at Tufuiopa;

there will inevitably be different consequences as to succession from those which were discussed in the Supreme Court judgment.

40. These consequential issues were not argued before this Court. The land will now have to be dealt with on the basis that Auimatagi Levao succeeded as the surviving joint tenant to Fiti’s interest. This Court has no knowledge as to the entitlement to succession under Auimatagi Levao’s estate. There was evidence that the land was in fact purchased in the names of Fiti and Auimatagi Levao by Teleaga, who had the financial resources from his employment as a painter by Goldstar. Tagaloamatua gave evidence that Teleaga was a hard working man. Again this Court has no knowledge whether that raises an issue that will need to be determined in respect to the question of succession.
41. The appeal is allowed, the Supreme Court judgment set aside, and the determination of this Court is:

(1) That Fiti Auimatagi died on or about 22 May 1962 as evidenced by the certificate of death produced before the Court;

(2) That the joint purchaser with Fiti Auimatagi in the 1942 Deed was Auimatagi Levao;

(3) That Auimatagi Levao was the successor as the surviving joint tenant to the entitlement of the freehold land at Tufuiopa;

(4) Costs of $5,000 are awarded to the appellant and are payable by each of the first and second respondents.

Honourable Justice Baragwanath

Honourable Justice Fisher

Honourable Justice Galbraith