IN THE COURT OF APPEAL OF SAMOA
Tokuma & Ors v Samoa Land Corporation [2018] WSCA 14

Case name: 	Tokuma & Ors v Samoa Land Corporation	
		
Citation: 	[2018] WSCA 14	
		
Decision date: 	25 October 2018	
		
Parties: 	NANAI TOKUMA, AIGA TOKUMA, TALAFULU TOKUMA, TALALUPE TOKUMA SANELE, TAUALOFA TOKUMA TIMO & CIZZY TOKUMA (Appellants) and SAMOA LAND CORPORATION (Respondent)	
		
Hearing date(s): 	19 October 2018	
		
File number(s): 	CA17/18	
		
Jurisdiction: 	CIVIL	
		
Place of delivery: 	Court of Appeal of Samoa, Mulinuu	
		
Judge(s): 	Honourable Justice Fisher
Honourable Justice Harrison
Honourable Justice Tuatagaloa	
		
On appeal from:	Supreme Court of Samoa, Mulinuu	
		
Order:	The appeal is dismissed.
The appellants are ordered to pay the respondent costs of SAT$5000 together with reasonable disbursements.	
		
Representation: 	Iuni Sapolu & Josephine Fuimaono-Sapolu for the Appellants
Tafailagi Peniamina for the Respondent	
		
Catchwords: 	Lawful entitlement to land – unjust enrichment – proprietary estoppel – hearsay statements – lands gifted 	
		
Words and phrases:	Appeal affirming legal rights to land – appeal against interim injunction preventing relocation – Government plans to relocate – incompetence of trial counsel	
		
Legislation cited:	Evidence Act 2015, s10.	
		
Cases cited:	Sungsuwan v R [2005] NZSC 57;
Tokuma v Samoa Land Corporation [2018] WSSC 81 (8 June 2018).	
		
Summary of decision:		

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

CA17/18

BETWEEN:

NANAI TOKUMA, AIGA TOKUMA, TALAFULU TOKUMA, TALALUPE TOKUMA SANELE, TAUALOFA TOKUMA TIMO & CIZZY TOKUMA
Appellants

A  N  D:

SAMOA LAND CORPORATION
Respondent

Coram:	Honourable Justice Fisher
		Honourable Justice Harrison
		Honourable Justice Tuatagaloa

Hearing:	Friday 19 October 2018

Counsel: 	Iuni Sapolu & Josephine Fuimaono-Sapolu for the Appellants
		Tafailagi Peniamina for the Respondent

Judgment:	Thursday 25 October 2018

JUDGMENT OF THE COURT
Introduction
1.	The Tokuma family allege that by descendance they are lawfully entitled to a large but undefined block of land at Sogi. They say their forebears acquired the land many years ago from government officials. They brought a claim against the Samoa Land Corporation (the SLC) in the Supreme Court seeking various declarations affirming their legal rights to the land and an interim injunction preventing their relocation. Their claims were ultimately based on pleaded causes of action for unjust enrichment and proprietary estoppel by encouragement or acquiescence.  Clarke J dismissed their claim.
2.	The Tokumas appeal against the Supreme Court judgment on the substantive ground that the Judge erred in rejecting hearsay evidence tendered in support. Separately they say the judgment should be set aside on the ground of trial counsel’s incompetence.
Facts
3.	Nanai Tokuma was the only witness for the Tokuma family at trial.  His account of the factual basis for the Tokumas claim was exclusively hearsay. He recounted two material statements, one allegedly made by his father and the other by his mother. Our summary follows.
4.	Nanai’s father was Turore Tokuma, a Solomon Islander, and his mother was Ulalemamae Leiataua.  His father died in 1957.
5.	Nanai did not know why his father came to Samoa.  However, in about 1920 he became the driver for a Percival Patrick, a position he held for many years.  Mr. Patrick was the Public Trustee and Commissioner of Crown Estates of Samoa at the relevant time.  Their relationship developed over the years from that of employer and employee into a friendship, akin to that of father and son.  
6.	Nanai related how one day when he was aged 12 years his father told him of his arrest in 1930, and his trial and sentence to death for killing a Chinese businessman.  As he was about to be hanged for the murder, two other Chinese gentlemen came forward and confessed to the crime.  In a way that was never satisfactorily explained to the Court these events were said to be linked to a gift by Mr. Patrick’s gift of the Sogi land to Mr. Tokuma’s father.  Nanai was unable to say whether Mr. Patrick had any authority to gift the land.  Also, Nanai never identified the physical boundaries of the land except to say that the area was very large.
7.	The Tokumas had pleaded that when approached by the Tokuma family at some undefined time the then Prime Minister, Fiame Mata’afa Mulinu’u II, said words to the effect that they could live on the land because, “the government cannot pay your father.”  In what the Judge rightly described as an account contrary to the family’s pleaded case, Nanai said that when he was about 12 or 13 years of age he went with his mother to Lepea.  His mother visited the then Prime Minster while he waited outside.  She later returned but said nothing about the contents of their meeting.
8.	Nanai acknowledged that his parents never said anything to the family about an entitlement to live on the land.  Instead Nanai’s evidence was that he believed that the family began living there after 1930, progressively clearing and reclaiming parts.  Members of the family still occupy some land at Sogi today.
9.	The SLC’s evidence at trial was based on the land register and source documents.  Doing its best to identify the land claimed by the Tokuma family, the SLC established that the only possible areas were held in Crown ownership throughout.  Legal title is now vested in the SLC.  There were numerous registered dealings with the land over the years including leases of interests to an oil company and a hotel company. There was no interest ever registered in the Tokumas’ favour.  
10.	In about 2007 the government introduced a plan to relocate existing residents at Sogi including the Tokuma family.  A relocation committee was formed.  Nanai’s late brother was an active member.  In 2008 the cabinet approved a proposed relocation plan by residents at Sogi including the Tokuma family.  In June 2012 a senior SLC employee met with a representative of the Tokuma family who said they refused to vacate the land.  The representative never mentioned the existence of an alleged gift by the Crown or any other right of ownership or possession. 
11.	The Tokumas pleaded numerous causes of action.  The family’s primary claim was that Mr. Patrick had gifted the land to them and that the former Prime Minister had assured them of their right to continue living there.  However, by the end of the evidence Mr. Mulitalo withdrew the cause of action based on the existence of a gift and related causes of action including what were described as breaches of a proper purpose, a legitimate expectation and contract.  Only the unjust enrichment and proprietary estoppel by encouragement or acquiescence claims remained for determination.  
12.	The Judge was not satisfied that the hearsay statements tendered by Nanai passed the statutory threshold test for admissibility.  First, he entertained a real doubt about the reliability of the statement attributed to Nanai’s father given that he was reciting a conversation made when he was 12 or 13 years’ old while they were on their way to work in some mangroves.  
13.	In particular the Judge noted that the statement was (a) made by a father and a young son in a casual context; (b) made 65 years previously relating to events which occurred about 80 or 90 years ago; (c) lacked any real detail and was general in nature, with the appearance of a narrative of Nanai’s interpretation of events as opposed to his father’s actual words; (d) was inherently unreliable in circumstances where Nanai’s father was allegedly convicted of murder within a week of his arrest; and (e) was inherently unreliable also given the circumstances in which the father’s death sentence was said to have been commuted – that is, as his father was walking to be hanged two men ran forward and confessed, exposing themselves to the inevitable fate of replacement of Mr. Tokuma’s father at the gallows. 
14.	The Judge independently concluded that the evidence was irrelevant, even if it had passed the threshold of reliability, because Nanai did not identify any link between the events recounted in his father’s statement to the Tokuma family ‘s occupation of the Sogi land. 
15.	Second, the Judge was satisfied that Nanai’s mother’s statement was similarly unreliable.  In particular (a) Nanai did not identify any representations actually made by the former Prime Minister concerning occupation of the land; and (b) Samoa had not become independent at the time the alleged meeting with his mother occurred in 1953 or 1954.
16.	The Judge’s rejection of Nanai’s evidence spelled the end of the family’s claim.  Nevertheless he considered in some detail the elements of unjust enrichment and proprietary estoppel.  He was not satisfied that the Tokuma family had established either cause of action.  
17.	On unjust enrichment, there was no evidence that the family was entitled to enjoy any benefit in the land or that they would be correspondingly deprived of it by relocation, or that the Tokumas had any legal right to retain any benefit given the SLC’s ownership.  
18.	On proprietary estoppel, there was no evidence that the Tokuma family or their ancestors had made a mistake as to their legal rights or that they held a mistaken belief that they owned the land.  While there was general evidence that they had constructed dwellings on the Sogi land, there was no evidence that work was carried out and money expended on the faith of a mistaken belief.  There was also no evidence that SLC (a) knew of a mistaken belief by the Tokumas, if it existed; (b) encouraged the family or their ancestors to expend money; and (c) had abstained from asserting its legal rights as a result. 
19.	Accordingly, the Judge dismissed the Tokumas’ claim.
Decision
(a) Trial counsel incompetency.
20.	The Tokuma family appeals on two grounds. The primary ground to emerge in Ms. Fuimaono-Sapolu’s argument was that the judgment should be set aside because of the incompetence of the Tokuma’s trial counsel, Mr. Mulitalo.  Ms. Fuimaono-Sapolu relies on two sources: passages from the judgment and affidavit evidence from Tokuma family members who depose to their availability to give relevant evidence and counsel’s unexplained omission to call them. 
21.	The Judge was particularly critical of Mr. Mulitalo’s performance, and rightly so.  His judgment laments the prolixity and confusion of the pleaded causes of action and the abject absence of an evidential foundation for them.  It was apparent that Mr. Mulitalo failed to understand the principled basis for the Tokumas’ case, and the legal remedies that might be possibly available to them. 
22.	The trial transcript is replete with the Judge’s exchanges with Mr. Mulitalo about his failures to observe the laws of evidence and his delays in attending to basic evidential requirements. An example correctly highlighted by the Judge was counsel’s reliance on hearsay evidence to counter incontrovertible documentary evidence. Another was his failure to produce written records properly. Other examples were his failure to lead any direct or expert evidence to identify the physical boundaries of the land at issue and his attempt to adduce affidavit evidence from an absent witness. It is unsurprising that the Judge was led to openly express his concerns about counsel’s conduct of the Tokumas’ case.
23.	Ms. Fuimaono-Sapolu relied on a long line of authorities in the criminal law for her submission that trial counsel’s performance was so incompetent that there was a real risk it may have affected the result of dismissal of the Tokumas’ claim. In combination she submitted that his failings prejudiced the Tokumas chances of a favourable judgment and caused a miscarriage of justice.
24.	We have sympathy for Ms. Fuimaono-Sapolu’s essential proposition. Mr. Mulitalo’s performance was grossly incompetent. However, the appeal ground of trial counsel incompetence is unique to the criminal law. The reason is that a defendant in a criminal proceeding is exposed to sanctions imposed by the state including conviction for an offence marking society’s condemnation of his or her conduct and a sentence which might interfere with his or her freedom. A defendant is entitled to a fair trial conducted in accordance with his or her guaranteed constitutional rights. 
25.	The only remedy available to a defendant whose counsel’s incompetence has deprived him or her rights is to apply to set aside the resulting conviction. The interests of justice require the state to bear the consequence of conducting a new trial.  Financial compensation from the lawyer would not have the necessary restorative effect.  The client’s only right of recourse is to recover wasted legal fees or to initiate a disciplinary complaint.
26.	The same rationale does not apply to a civil proceeding. The common law does not allow a distinct remedy on the ground of trial counsel’s incompetence within the ambit of the proceeding itself. That is because a disaffected client has alternative financial remedies available on proof to the civil standard that the lawyer’s breaches of duty have caused him or her to lose a claim. Discharging that burden is often difficult in practice because it requires the client to prove again the elements of the case against a different party. Nevertheless, this right is the appropriate mechanism for a disaffected client to obtain recompense from an incompetent lawyer in the civil context.
27.	However, even if trial counsel’s incompetence might have been available as a remedy in this case, it would fail as a ground of appeal. That is because of our satisfaction that there was no miscarriage of justice. The Tokuma family’s claim was always destined to fail. Mr. Mulitalo’s failings, however gross, did not ultimately affect the result. The Tokumas simply had no factual basis for their claim. The family members who filed affidavits in this Court do not identify any material facts additional to Nanai’s evidence which might have improved the case.  
28.	The disturbing feature of the additional evidence in this Court is an assertion that the family paid Mr. Mulitalo SAT$20,000 to conduct the trial.  That expense was plainly wasted.  We doubt whether the Tokumas would have gone to Court if they had received competent advice about the merits of their claim and the prospects of success.
(b) Hearsay statements.
29.	The sole substantive ground of the Tokumas’ appeal is that the Judge erred in ruling that the hearsay statements tendered by Nanai were inadmissible.  The Judge was not satisfied that they passed the statutory threshold for admissibility. The circumstances relating to both statements did not provide him with a reasonable assurance of their reliability.
30.	Ms. Fuimaono-Sapolu’s submissions in support of this ground touched the margins but did not address the essence of the Judge’s reasons. It is regrettable that the effect of her otherwise well-presented argument was diminished by some unjustified personal criticisms. Her point about the importance of oral recording of important history and family events in Samoan culture is well made.  But in this case it could not possibly save the Tokumas’ case.
31.	The Judge was both the ultimate fact finder and by virtue of the law the gatekeeper on the admissibility of evidence.  He was uniquely placed to assess its reliability. We are in no doubt that he was correct to exclude both statements. The circumstances in which each was made were inherently implausible.  Both statements were also inadmissible for irrelevance; neither of them established a causal nexus between what was stated and the remedies claimed.  We cannot improve on the Judge’s reasoning. 
32.	We add that even if the statements had crossed the threshold of reliability they would not have materially advanced the Tokumas’ case. They fell well short of satisfying some critical elements of proof. They failed to provide the necessary factual foundation to support equitable claims of unjust enrichment or proprietary estoppel by encouragement or acquiescence. The SLC’s superior rights of legal ownership of the land were always going to prevail. The company had not acted or omitted to act in any unconscionable way that might have benefitted it unfairly at the Tokumas expense or compromised its legal entitlement as registered proprietor. 
33.	We are not satisfied that the Judge erred.
Result.
34.	The appeal is dismissed.
35.	The appellants are ordered to pay the respondent costs of SAT$5000 together with reasonable disbursements.

HONOURABLE JUSTICE FISHER
HONOURABLE JUSTICE HARRISON
HONOURABLE JUSTICE TUATAGALOA