IN THE COURT OF APPEAL OF SAMOA
Ah Kuoi v Ah Kuoi [2019] WSCA 1

Case name: 	Ah Kuoi v Ah Kuoi 	
		
Citation: 	[2019] WSCA 1	
		
Decision date: 	15 April 2019	
		
Parties: 	TAULA IEROME AH KUOI (Appellant) and JOHN AH KUOI (Respondent)	
		
Hearing date(s): 	11 April 2019	
		
File number(s): 	CA12/19	
		
Jurisdiction: 	CIVIL	
		
Place of delivery: 	Court of Appeal of Samoa, Mulinuu	
		
Judge(s): 	Honourable Justice Fisher
Honourable Justice Panckhurst
Honourable Justice Harrison	
		
On appeal from:	Supreme Court of Samoa	
		
Order:	The appeal is dismissed.
The appellant is ordered to pay the respondent costs of $5000 together with disbursements.	
		
Representation: 	M. McFarland for the Appellant
P. Fepuleai & B. Faamatuainu for the Respondent	
		
Catchwords: 	parties brothers – administrator of estate – beneficiary of estate – removal as administrator – disinterment of parents – appeal dismissed	
		
Words and phrases:		
		
Legislation cited:	Administration Act 1975, ss.12(1); 12(1)(a)(i); 17(1); 44.	
		
Cases cited:	Ah Kuoi v Ah Kuoi (Unreported Decision of Justice Clarke delivered on 18 January 2019);	
	Crick v Wallace [2015] NZHC 2260;
Miller v Cameron [1936] 54 CLR 372.
	
Summary of decision:		

CA12/19

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

BETWEEN:

TAULA IEROME AH KUOI
Appellant

A N D:

JOHN AH KUOI
Respondent

Coram:		Honourable Justice Fisher
		Honourable Justice Panckhurst
		Honourable Justice Harrison

Hearing:	11 April 2019

Counsel:	M. McFarland for the Appellant
		P. Fepuleai& B. Faamatuainu for the Respondent

Judgment:	15 April 2019 

JUDGMENT OF THE COURT
Introduction
1. 	The parties in this litigation are brothers.  One brother, the respondent John Ah Kuoi, is the administrator of and a beneficiary in their late father’s estate; the other brother, the appellant Taula Ah Kuoi, is one of a number of other beneficiaries.  Taula has applied to the Supreme Court to remove John from office on a number of grounds.  An issue has also arisen about disinterment of their parents graves from the family land.  
2. 	Taula now appeals against Clarke J’s dismissal of his application for an order removing John. Taula does not challenge a range of ancillary orders made  by the Judge if  his substantive appeal fails  
Facts
3. 	The material facts are not in dispute and can be summarized shortly. 
4. 	John and Taula’s father, Tuaopepe Tame Ah Kuoi, died intestate on 28 October 1994.  He was survived by his wife, Valasi Ah Kuoi, and 11 children including an adopted son, Roy.  He had fathered two other children outside his marriage to Valasi who are deemed illegitimate.  On John’s intestacy his estate fell by law for distribution as to one third to Valasi and two thirds to their children, subject to various charges. Valasi died, also intestate, on 01 February 1999.   Four of her sons have since died, also intestate, leaving widows and numerous children.
5. 	On 11 August 2005 John was appointed as administrator of both parents’ estates which the parties collectively treat as one because Valasi’s share of Tuaopepe’s estate has passed by law to her surviving children. The estate has one substantial asset, a half acre block of freehold land at Taufusi, together with parcels of shares in Samoa Breweries and a bank account.  Taula has lived on the land since 2000 without paying an occupation rental. And since 2015 he and some of his siblings have received rental of $2000 monthly from leasing part of the property to Chen Lin. 
6. 	John, who lives in New Zealand, admits that he was largely inactive in administering the estate until January 2017 when in an email to his siblings he recorded a majority agreement by family members following consultation to sell the family land and divide the proceeds equally between all beneficiaries; and also to relocate their parents graves before sale by 11 March 2017.  Taula responded to John’s initiative by applying to the Supreme Court on 03 March 2017 for an order removing John from office as administrator.  
7. 	On 09 March 2017 John returned to Samoa and travelled to Taufusi to meet with Taula. Taula declined John’s invitation to lunch and his suggestion that they discuss the future of the family land. John advised Taula that he had arranged a family conference in Apia for the next day, 10 March. He advised Taula that the purpose of the meeting was specifically to address his objections to the proposed sale. Some of his sisters had also travelled from Australia to attend.
8. 	John, four of his surviving siblings and children of his deceased brothers attended the 10 March meeting. But Taula and Roy, the other surviving siblings, did not attend. Taula’s position was that the meeting should be conducted “in my way” at the family home in Taufusi. The participants formally resolved to proceed with the land sale and disinterment.  However, on 22 May 2017 the Supreme Court granted Taula an interim injunction restraining the sale and disinterment pending determination of Taula’s substantive application. 
Supreme Court 
9. 	Clarke J dismissed Taula’s application for John’s removal as administrator on the statutory ground of expediency, rejecting Taula’s case that John was in breach of his fiduciary duties by: (a) acting where his interests conflicted with the other beneficiaries, and in a manner which was unfair and prejudicial to Taula and some other beneficiaries; and by (b) failing to account for income and expenditure and to act in the best interests of all beneficiaries particularly Taula.  The Judge dismissed a separate claim for removal based on the statutory ground of John’s absence from Samoa for more than 12 months without leaving a lawful attorney.
10. 	Clarke J also (a) discharged the interim injunction; (b) ordered the eviction from the property of Taula and his family; (c) directed Taula to prepare and serve a statement of account for rent received on the lease to Chen Lin; (d) directed John to prepare and serve an inventory and accounts for the estate; and (e) directed the parties to file costs memoranda.  The Judge declined to make a specific order about the parents burial sites or to direct the appointment of administrators to the estates of the four deceased sons who died intestate. 
11. 	We shall refer to the Judge’s reasoning more fully when addressing Taula’s specific grounds of appeal. 
Parties
12. 	Ms. McFarland for Taula raised a preliminary objection to the appeal proceeding at this stage.  She submitted that the other beneficiaries or all other entitled claimants should be joined as parties on the appeal.  By reliance on Article 9 of the Constitution, guaranteeing the right of a fair trial, she submitted that unless they were joined Tuaopepe’s two illegitimate children and Roy would be denied their rights, either to disclaim their interests in the estate or to bring a separate claim against the estate to determine their eligibility. She relied on John’s acts and conduct as evidence of his denial of their rights  
13. 	We disagree.  It was always open to Taula to apply to join other parties when or shortly after he filed proceedings.  He cannot take advantage of his own omission to delay determination of his substantive application.  While family consensus is not necessary, the evidence confirms that four of the six other surviving siblings and the children of his late brothers support John’s substantive proposal for disposition of the family land.  
14. 	We accept that questions may arise following the sale of the estate assets about the status of Roy and Tuaopepe’s illegitimate children as beneficiaries entitled to share in the proceeds.  In that event John, who is obliged to protect  the rights of all interested parties, will have to apply for directions from the Supreme Court and hold the proceeds of sale on trust pending such directions. However, such an issue is of a strictly contingent nature at this stage and does not bear upon John’s present fitness to remain in office as executor.  
Decision
(a) Principles
15. 	The principles governing the Court’s exercise of its discretion to remove an administrator are not in dispute and were succinctly summarized by Clarke J.  The two relevant statutory prerequisites are proof either: (a) that an administrator is absent from Samoa for 12 months without leaving a lawful attorney; or (b) that removal is expedient.  The discretion itself is of an intensely factual nature dependent on the circumstances of the particular case, and importing considerations of suitability, practicality and efficiency. The threshold of expediency is lower than necessity.  Proof of misconduct, breach of trust, dishonesty or unfitness are not necessary. The Court’s inquiry must take account of the interests of beneficiaries, security of the trust property, the efficient and satisfactory execution of the trusts, and the loyal and sound exercise of the administrator’s powers. 
(b) John’s absence from Samoa
16. 	Ms. McFarland submitted that Clarke J erred in finding that Taula had not satisfied either of the statutory thresholds. The first was that John was absent from Samoa for 12 months without leaving a lawful attorney.  She asserted that the evidence contradicted the Judge’s finding that John regularly visited Samoa three or four times annually. 
17. 	[17] We reject this submission. We see no basis for disturbing Clarke J’s factual finding. John’s evidence in cross examination was unchallenged that he had never been away from Samoa for more than 12 months; and that he had visited four times in 2018. He said that, while he lived in Auckland, “my heart is here [in Samoa]”. He explained that the family appointed him as administrator because he was the only member who travelled to and from Samoa regularly – two of the siblings (plus Roy) live in Samoa, two in Auckland, and the other two in Melbourne. And Taula agreed with Mr. Fepuleai, who appeared for John, that he saw John when he came to Samoa every year.
18. 	Ms. McFarland’s complaint was that John failed to produce any documentary evidence of his travels to Samoa. There are two answers to that proposition. One answer is that Taula, not John, carried the burden of proof. He led no evidence in support, relying only on assertion. Clarke J had a proper basis for finding that Taula had not discharged his onus. The other answer is that oral evidence has the same inherent integrity and reliability as written evidence if a Court accepts its tendency to establish the truth of a fact. Clarke J had a proper basis for accepting John’s oral evidence, largely corroborated by Taula, as affirmatively disproving a claim that John was absent from Samoa for a period of 12 months without leaving a lawful attorney.
(c) Expediency
19. 	Ms. McFarland submitted that the Judge erred in a number of respects in finding that Taula had failed to establish the alternative threshold of expediency.  She relied principally on John’s failure to furnish accounts for 14 years, characterizing this as an omission to disclose to the beneficiaries the estate’s true financial position.  She referred also to John’s failures: (a) to convene any meetings of beneficiaries to explain the estate’s affairs; and (b) to give Roy and Tuaopepe’s two illegitimate children notice of events or include them as beneficiaries. 
20. 	Mr. Fepuleai accepts Clarke J‘s finding that John had been dilatory in performing his duties as administrator.  John’s delay in producing accounts and realizing the estate’s assets was largely unexplained. When asked for an explanation in cross-examination he said that Taula had locked everything up and kept all details of dealing with the land to himself. While we accept that Taula’s continued occupation of the land, uncooperative attitude and apparent refusal to move would have caused John significant problems, this factor does not excuse his continued inactivity.
21. 	However, there was no evidence that any beneficiary has suffered or will suffer loss as a result.  Ironically, to the contrary, the sole beneficiary of John’s inactivity was Taula himself.  He has occupied the family land continuously since 2000. He purported to have authority in 2015 to lease the family land, even though John was the legal owner.  Since then he has received rental of $2000 monthly which he has wrongfully applied to benefit himself and some of the other beneficiaries. He has failed to account to his brother for any receipts. The Judge was entitled to give weight also to Taula’s own failure to make any complaint about John’s omission to attempt to exercise his power of sale or produce accounts.  Taula’s silence continued for many years until John gave notice of his intention to proceed with a sale. 
22. 	John cannot produce meaningful accounts for the estate because as administrator he has not received any income from its primary asset, for the reason that Taula has failed to pay an occupation rent or account for rent received from an asset to which he is not legally entitled.  Taula’s misconduct has materially contributed to John’s inability to discharge his legal duty.  He is seeking to take advantage of his own wrongs. He cannot complain about steps lawfully taken to remedy a breach for which he is largely responsible, and from which he has been the primary beneficiary. 
23. 	Ms. McFarland properly pointed out that John could still have taken steps to realise other assets and provide accounts despite his inability to sell the land. She was referring to modest bank accounts and the parcels of shares owned by both late parents in Samoa Breweries. However, before us she went further, and submitted that John’s evidence at trial on the number of shares held was wrong, with the implication that he had misled the Court in advising that the estate held only 250 shares. She relied on extracts from Samoa Breweries’ share register which were not in evidence at trial to contend that the total shares held by John as administrator of his father’s estate exceeded 20,000, and that his mother held another 620.
24. 	The Judge questioned John on this point at trial. John advised that each parents’ shares were worth about $100,000. The company’s share registry does not refute his evidence. We are satisfied that Ms. McFarland has misread the register by confusing the registration number allocated to each named shareholder with the actual number of shares held. It is most regrettable that Ms. McFarland was reluctant to concede her error when it was drawn to her attention; and that she erroneously sought to rely on a document which was not produced at trial to contest evidence given under oath.  The result was that in this respect, and in other aspects of her oral argument, Ms. McFarland overstated Taula’s case and undermined the force of her well constructed written submissions.
25. 	The Judge was satisfied that despite his delays John was nevertheless a fit person to administer the estate. Clarke J had enjoyed the special benefit of presiding at trial  and observing the witnesses give evidence in evaluating John’s continued suitability to remain in office. In determining whether removal was expedient he was entitled to give weight to John’s positive steps taken since early 2017 to exercise his principal power of sale of the estate’s assets including the land; and that it was only his responsible attempts to do so that had generated Taula’s formal attempts to stop him.   As the Judge recognized, even though he was not legally bound to do so, John has attempted to secure familial consensus to the sale so that he could attend harmoniously to distribution of the proceeds according to the statutory trusts.  The Judge was also justified in finding that Taula’s sustained refusal to vacate the land has frustrated John from discharging that duty. 
26. 	In answer to Ms. McFarland’s other discrete grounds of challenge, we repeat that John has not breached any separate duties owed to Tuaopepe’s illegitimate children and Roy.  Any attempt to remove him on the ground would be premature. As we have noted, John is bound to discharge his office according to the law.  In the event of doubt about the status of those other parties John will have to apply to the Supreme Court for directions. 
(d) Disinterment
27. 	Ms. McFarland also submitted that the Judge failed to take proper account of John’s proposal to disinter his parents graves before selling the family land. She asserted that John had failed to consider the wishes of the extended family as well as matai, Roy and the illegitimate children. There was a failure to address the wider interests engaged relating in disinterment.
28. 	Clarke J carefully considered this issue. He was conscious of its familial importance and sensitivity. He took account of John’s acquisition of a burial plot for his parents overlooking the sea. He encouraged the family to continue to seek consensus. But ultimately, as he recorded, this issue did not go to John’s performance of his statutory duties, principally the exercise of his power of sale. We agree with Mr. Fepuleai that the graves must be removed before the property can be sold. We agree with the Judge that Taula had no legal basis for injuncting the family members from taking this course
Summary
29. 	In summary, we are satisfied that there is no apparent error in the Clarke J’s exercise of his discretion. We agree with the Judge that Taula’s application fell well short of establishing that John’s removal from office was expedient.. We are satisfied that John’s past inactivity is unlikely to prejudice the rights and interests of the estate’s beneficiaries, and that Clarke J had a proper basis for finding that John has demonstrated that he is ready, willing and able to protect and execute the statutory trusts on which he holds title to the estate’s assets.
Result
30. 	The appeal is dismissed.
31. 	The appellant is ordered to pay the respondent costs of $5000 together with disbursements.

HONOURABLE JUSTICE FISHER
HONOURABLE JUSTICE PANCKHURST
HONOURABLE JUSTICE HARRISON