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Tuia v Public Trustee [2004] WSSC 15 (26 November 2004)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA


BETWEEN


LEALA VAA TUIA, retired person of Vaitele,
PENATI TUIA Education Officer of Vailoa, and
KALITA TUIA, house person of Vailoa.
First Plaintiffs


MAFUTAGA SALESA TUIA, house person of Vailoa, Faleata,
SYDNEY LAIKUM, retired person of Vailoa and
MUAVAA ATI MISA SOO TUIA, Businessperson of Honolulu Hawaii.
Second Plaintiffs


AND


PUBLIC TRUSTEE,
office of the Public Trust, Government Authority established
under the Public Trust Office Act 1975.
First Defendant


AND


REVEREND OIKIRISI TUIA,
as the Administrator of the estate of the late Reverend Sione Isaako Tuia.
Second Defendant


AND


The Estate of the late ELIA I’AMALEAVA,
Administrator of the Estate of the late FALUTE I’AMALEAVA nee VAA TUIA, and
the Estate of the late FALUTE I’AMALEAVA.
Third Defendants


AND


STEVENSON, NELSON & MITCHELL, Barristers and Solicitors of Apia.
Fourth Defendant


Counsel: D Woodroffe for first plaintiffs and second plaintiffs
H Hoglund for first defendant
A Roma for second defendant
HJ Schuster for third defendant
S Hazelman for fourth defendant


Hearing: 24 February 2004
Judgment: 26 February 2004
Reasons: 26 November 2004


JUDGMENT OF SAPOLU CJ


Introduction


The first plaintiffs and the second plaintiff commenced these proceedings by filing a statement of claim dated 4 October 2001. To the statement of claim the first defendant filed a statement of defence dated 14 January 2002, the second defendant filed a statement of defence dated 9 December 2002, the third defendant filed a statement of defence dated 9 September 2002, and the fourth defendant filed a statement of defence dated 26 November 2001. There was a fifth defendant but proceedings by the plaintiffs against that defendant were discontinued by notice of discontinuance dated 16 June 2003. We are therefore not concerned with that defendant.


By motion dated 7 October 2002, the first defendant who is the Public Trustee sought to strike out the statement of claim, insofar as it relates to the first defendant, on specified grounds. By separate motion dated 30 May 2003, the third defendant also sought to strike out certain causes of action pleaded against the third defendant in the statement of claim. All defendants also filed applications for security for costs as some of the defendants reside overseas.


The plaintiffs then filed an amended statement of claim dated 16 June 2003. To the amended statement of claim, the first defendant filed an amended motion to strike out dated 24 September 2003. The third defendant’s strike out motion dated 30 May 2003 still remained. So were the applications for costs that had been filed by the defendants. It is the amended statement of claim, the strike out motions and the applications for security for costs the Court is concerned with in these proceedings.


Background


As it appears from the amended statement of claim, at the heart of this case is the will of the late Tuia Va’a formerly of Vailoa, Faleata. Tuia Vaa was the father of the first plaintiffs, the grandfather of the second plaintiffs and also the grandfather of the second defendant. Falute Iamaleava and her son Elia Iamaleava whose estates are cited as third defendants were a daughter and grandson of Tuia Vaa. In all, Tuia Vaa had sixteen children and many grandchildren but not all of them are involved in these proceedings.


According to the first plaintiff, Leala Vaa Tuia, before his father died on 16 December 1966, he, his late brother Isaako Tuia, a church minister, and his late sister Falute Iamaleava, a school teacher, accompanied their father to the office of the late Mr Jackson who was then a solicitor in Apia. That was on 7 July 1966. Tuia Vaa was then 78 years old, did not understand or speak English, and was in very poor health. At Mr Jackson’s office, Leala was told by his brother Isaako to wait outside. After the visit to Mr Jackson’s office and before Tuia Vaa died in 1966, Leala was told by his father that his land at Vailoa, Faleata, had been entrusted to Isaako and Falute to be divided amongst all of his children. Leala believed this to be his father’s intention at the time he made and signed his will. The inference to be drawn from this is that Tuia Vaa must have made a will when he was accompanied to Mr Jackson’s office and that Leala Vaa Tuia must have been aware of such a will before his father died in 1966. The other inference is that Leala must have been aware that his father’s will included his land at Vailoa, Faleata. The will of Tuia Vaa was executed on 7 July 1966.


On 12 September 1979, Isaako and Falute agreed to the appointment of the Public Trustee, the first defendant, as administrator of their father’s estate. On 24 October 1994, the first defendant applied to be registered as proprietor of Tuia Vaa’s estate. It also appears from the amended statement of claim that Falute passed away in 1986. She left a will in which she appointed her son Elia as executor. On 23 February 1995, Elia was granted probate of his late mother’s will. However, Elia subsequently died on 5 September 2001. So it would appear that there is now no administrator of the late Falute’s estate. And the third defendant is shown in the amended statement of claim as the joint estates of Elia Iamaleava and Falute Iamaleava.


Isaako, on the other hand, died on 11 February 1996. He also left a will in which he appointed his son Okirisi Tuia as executor. On 12 March 1997, Okirisi was granted probate of his late father’s will. He is cited as second defendant in these proceedings.


It was alleged in the statement of claim and again in the amended statement of claim that neither of the first plaintiffs ever saw their late father’s will until 29 September 2001 when the will was discovered by one of the second plaintiffs. The statement of claim is dated 4 October 2001 and the amended statement of claim is dated 16 June 2003.


Apart from the will of their late father and grandfather, the plaintiffs also allege that they had made several monetary payments to Isaako before he died for Mr Jackson’s legal fees. The last payment was made in 1992. But, Mr Jackson probably died in New Zealand before 1992. It is also alleged that the first plaintiffs paid money to Isaako and Falute when they requested money to pay off their late father’s debts and for subdividing their father’s estate so that each of them would have a share of the lands which form their father’s estate. The second plaintiffs also made payments on behalf of their parents who were some of the other children of Tuia Vaa. It is also alleged that Isaako and Falute had several meetings with the first plaintiffs since the death of their father in which the subdivision of the estate was discussed to benefit all of their father’s children. At those meetings Isaako and Falute said that their father’s estate would be subdivided amongst all of their father’s children and the first plaintiffs relied on what was said by Isaako and Falute. However, when Falute passed away in 1986 the estate had not been subdivided.


Then in 1994 as the first plaintiffs became concerned at the lack of progress with the purported subdivision of the estate, they instructed the fourth defendant, which is a firm of solicitors in Apia, to lodge a caveat to protect their interest in the estate. A caveat was accordingly lodged by the fourth defendant on 18 November 1994. Without the knowledge of the plaintiffs, the fourth defendant removed the caveat. Subsequently, the defendants subdivided and sold parts of the estate lands. On 4 October 2001 the plaintiffs obtained an interim injunction to restrain any further sales of the estate lands. That injunction still remains.


For the purpose of the motions to strike out on the ground that the claim discloses no reasonable cause of action, the Court would have to assume that the facts pleaded in the claim are true. The third defendant’s motion also seeks to strike out the plaintiffs second, third and fourth causes of action on the ground that they are time-barred. It should be mentioned here that the third defendant did not file an amended strike out motion to the amended statement of claim but decided to adapt its motion at the time of the hearing of this matter to fit in with the causes of action as amended statement of claim. There was no objection to that course being taken.


Motion to strike out by first defendant


The motion by the first defendant seeks to strike out the plaintiffs' first cause of action and paragraphs 57, 59, 61 and 62 of the plaintiffs' second cause of action on the ground that they disclose no cause of action against the first defendant which is maintainable in law.


It is pleaded under the plaintiffs' first cause of action that the first defendant owed a duty to the first plaintiffs under s.55 of the Public Trust Office Act 1975 and that the first defendant had failed to give notice in writing or by telegram to the first plaintiffs as required by s.55. It is also pleaded that the first defendant had actual or imputed knowledge of the existence of the first plaintiffs but the first defendant had failed to make enquiries as it is empowered to do under s.88 of the Act. It is further pleaded that in the context of Samoan society, the first defendant had an implicit duty to seek the Courts directions once the first defendant became aware of the plaintiffs claims to their late father’s estate and the disputes between the plaintiffs and the defendants.


Under s.54(1), the Public Trustee is given certain powers and authorities to exercise with respect to the estate of a person who has died either testate o intestate. Those powers and authorities empower the Public Trustee, whether some other person is appointed executor or is entitled to letters of administration, to do all such acts and things as he could have done if the deceased had died intestate and the Public Trustee had obtained administration. These powers may only be exercised by the Public Trustee before administration is granted. There are limitations provided on the exercise of these powers given to the Public Trustee but they are not relevant for present purposes. Section 55 then provides:


“(1) Before the Public Trustee first acts under section 54 of this Act, he shall give notice in writing or by telegram to any person in Samoa known to him who is of full age and full mental capacity and would be entitled to obtain administration, that he intends to so act unless that person forthwith proceeds to apply for administration.


(2) If that person does not, within a period of 21 days after the posting of the notice or the dispatching of the telegram, give notice in writing or by telegram, to the Public Trustee that he intends to apply for administration, or if that person gives such notice but fails for 14 days thereafter so to apply, or makes such application and it fails, then, unless the Court otherwise orders, the Public Trustee may proceed to exercise all or any of the powers and authorities conferred by section 54 of this Act.


(3) If more persons than one are entitled to take out administration, it shall be sufficient to give notice to one of those persons only.


(4) Nothing in this section shall, where it is not actually known to the Public Trustee that there is in Samoa any person entitled to obtain administration or in any case of emergency (of which emergency the Public trustee shall be the sole judge), prevent the Public Trustee from exercising the powers and authorities given by section 54 of this Act.”


Sections 54 and 55 are clearly linked to one another. The powers and authorities given to the Public Trustee under s,.54 are only exercisable by him “until administration is granted.” In other words those powers and authorities can only be exercised by the Public Trustee before the grant of administration. Thus the requirement in s.55 that before the Public Trustee acts under s.54 he must give notice in writing or by telegram to any person in Samoa known to him to be entitled to administration, that he, the Public Trustee, intends to apply for administration, applies before the Public Trustee may exercise any power given to him by s54 and before the grant of administration.


There is no specific pleading in the plaintiffs claim to show whether the first defendant had been or had not been granted administration of their late father’s estate; and if administration of their late father’s estate had been granted to the first defendant, when did that happen. All that is pleaded is that on 12 September 1979 Isaako and Falute consented to the Public Trustee being appointed administrator of their father’s estate, and on 24 October 1994 the first defendant applied to be registered as proprietor of their father’s estate. There is no mention whether administration of the estate in question had been granted or not so that one would know the time when ss.54 and 55 could have come into operation.


Apart from the absence of any clarity whether there has been a grant of administration and, if so, when was it, there is also no pleading in terms of s.55 that the first defendant knew before any grant of administration of the existence of the first plaintiffs and that they were persons who were at the relevant time of full age, of full mental capacity and would be entitled to obtain administration. Paragraph 53 of the first cause of action pleads that the first defendant had actual or imputed knowledge of the existence of the first plaintiffs. But that is a bare pleading with an element of uncertainty and it is not supported by any other pleading in the claim. To say that the first defendant had “actual or imputed knowledge” of the existence of the first plaintiffs existence contains an element of uncertainty whether the knowledge was “actual or imputed.” If reference is made to the words “known to him” (the Public Trustee) used in s.55(1) and to s.55(4), it would be clear that the kind of knowledge that s.55 is referring to is actual knowledge and not imputed knowledge on the part of the first defendant.


It should also be mentioned here that in the affidavit of 10 April 2003 filed by the then assistant Public Trustee in support of the first defendant’s strike out motion, it is there pointed out that after Isaako and Falute had requested the first defendant in October 1973 to administer the estate of their late father, the first defendant issued a public notice on 21 January 1976 to any creditors or claimants of the said estate allowing three months within which to inform the first defendant of any interests. At the expiry of that public notice on 21 April 1976, neither the first plaintiffs nor the second plaintiffs notified the first defendant of any interests. This matter was referred to and emphasised by counsel for the first defendant at the hearing of the strike out motion and counsel for the plaintiffs did not dispute that a public notice, as explained, was actually issued by the first defendant. Counsel for the plaintiffs also did not dispute what was said in the affidavit of the assistant Public Trustee and emphasised by counsel for the first defendant that such public notice was issued by the first defendant before probate of the will in question was granted to the first defendant on 12 September 1979. It was also submitted by counsel for the first defendant that in all the circumstances the first defendant had strictly complied with s.55.


In respect of paragraph 54 of the first cause of action which pleads that the first defendant failed to make enquiries as he is empowered to do under s88 of the Act, all the pleadings in the preceding paragraphs of the claim do not support that conclusion. The only pleadings which refer to the first defendant are those in paragraphs 3, 22, 26, 27 and possibly 44 which refers generally to “the defendants”. Paragraph 3 says that the first defendant is the Public Trustee; paragraph 22 says that Isaako, Falute and the Public Trustee had knowledge of the will; paragraph 26 says that Isaako, Falute and the Public Trustee had knowledge of the will; paragraph 26 says that on 12 September 1979 Isaako and Falute consented to the Public Trustee being appointed as administrator of their father’s estate; paragraph 27 says that on 24 October 1994 the Public Trustee applied to be registered as proprietor of the lands forming the estate in question; and paragraph 44 says that with the caveat removed, the defendants subdivided and sold parts of the estate of the testator. There is no reference in any of those pleadings to s88 or what it contains.


Section 88 provides that in the absence of any express prohibition in the Act, the Public Trustee, in the administration of any trust or estate or the performance of any power or duty, may act on credible information though it may be less than legal evidence. It is further provided in s88 that the Public Trustee shall not be liable if he was acting in good faith. In my view, there is no connection between the pleadings in paragraphs 3, 22, 26, 27 and 44 of the claim and s88 to sustain a cause of action. There is really nothing to show that the first defendant had been in breach of s.88 except the bare assertion in paragraph 54 of the first cause of action that the first defendant failed to make enquiries he is empowered to do under s.88. The elements of a cause of action should be pleaded with sufficiently clarity and particularity so that the other party would be properly informed of what he is required to respond to.


I am not prepared to accept the final pleading in paragraph 55 of the first cause of action that in the context of Samoan society, the first defendant had an implicit duty to enquire or seek directions from the Court when he became aware of the plaintiffs claims to their late father’s estate and the disputes between the plaintiffs and “the defendants.” It seems that the plaintiffs are asking the Court to recognise a new common law duty on the part of the first defendant. However, this issue was not argued by counsel for the plaintiffs at the hearing of this matter.


All in all then, the first cause of action by the plaintiffs which is against the first defendant is not a valid cause of action. It is therefore struck out.


Second cause of action against first defendant.


The second cause of action by the plaintiffs against the first defendant is based on a constructive trust. The same cause of action is also directed at the second and third defendants. For present purposes, I will deal with the plaintiffs' second cause of action only insofar as it relates to the first defendant.


Paragraph 57 of the plaintiffs claim states that the first, second and third defendants were constructive trustees for the benefit of the plaintiffs in dealing with the estate of the late Tuia Vaa for reasons including but are not limited to those pleaded in paragraphs 1 – 48 of the claim. It is, however, not entirely clear what other reasons are there if the reasons to support this particular paragraph of the plaintiffs claim are not limited to those reasons pleaded in the preceding paragraphs 1 – 48. Paragraph 59 then states that the first defendant became constructive trustee in favour of the plaintiffs by having assisted the two beneficiaries named in the will of Tuia Vaa in the breach of trust. The only two beneficiaries mentioned in the said will were Isaako and Falute, a son and daughter of Tuia Vaa. Paragraph 50 of the plaintiffs' second cause of action states that the first, second and third defendants were independent of control or supervision by the plaintiffs. Paragraph 61 then states that the first, second and third defendants received property already subject to an “implied trust.” And then with knowledge that the property in dispute is held under an implied trust, the first, second and third defendants either aided and/or directly involved in the subdivision, transfer of the trust property in a manner inconsistent with the trust. Paragraph 62 then states that the defendants' position of trust gave rise to a constructive trust and the first and second defendants hold the estate of the late Tuia Va’a under a constructive trust in favour of the plaintiffs.


Having regard to paragraphs 3, 22, 26, 27 and possibly 44 which are the only pleadings in the plaintiffs claim that refer to the first defendant, I am not able to see how the plaintiffs can come to the conclusions stated in their second cause of action about implied trust and constructive trust and their alleged breaches by the first defendant. I am also not certain as to what is meant here by the term “implied trust” whether it is intended to refer to a separate trust called an implied trust or whether it is intended to mean the same thing as a constructive trust. The two types of trust are different. An implied trust is different from a constructive trust. In Jacobs Law of Trusts in Australia (1997) 6th ed by Meagher and Gummow at p285, the learned authors pointed out that the term implied trust encompasses a resulting trust and an incomplete trust. Under such a trust the law presumes that the settlor or purchaser, as the case may be, intended to retain the beneficial interest which he has not disposed of. Thus for an implied trust there is a presumed intention. That is different from a constructive trust which may be imposed by equity irrespective of the intentions of the parties: see Equity and Trust in Australian and New Zealand (2000) 2nd ed by Dal Pont and Chambers at p406. The pleadings which refer to the first defendant plainly do not raise a resulting result or even an incomplete trust. Thus the plaintiffs' second cause of action insofar as it refers to an implied trust against the first defendant is not sustainable in law.


With regard to constructive trust, it is again difficult to see how such a trust could have arisen against the first defendant on the basis of the pleadings in paragraphs 3, 22, 26, 27 and 44 of the plaintiffs claim. It was for that reason that I repeatedly asked counsel for the plaintiffs during the hearing of this matter as to how the first defendant assisted the two beneficiaries, Isaako and Falute, named in the will of their late father, “in the breach of trust” pleaded in paragraph 59 of the plaintiffs second cause of action. Counsel for the plaintiffs was not able to give an explanation. Thus paragraph 59 is only a bare assertion of breach of trust against the first defendant which is not borne out by the preceding pleadings which refer to the first defendant. It is also not clear what trust did the first defendant help to breach or what was the nature of the breach, if there was any breach of trust.


For the foregoing reasons, the second cause of action insofar as it refers to the first defendant is not maintainable in law. This cause of action is also struck out.


Motion to strike out by third defendant


The third defendant’s motion dated 30 May 2003 to strike out the plaintiffs' statement of claim dated 4 October 2001 was overtaken by the plaintiffs amended statement of claim dated 16 June 2003. However, there was no objection to counsel for the third defendant arguing the same motion in relation to the amended statement of claim even though the re-arrangement of the causes of action in the amended statement of claim and the way in which they are pleaded do not coincide with the way the causes of action were pleaded in the statement of claim and the sequence in which those causes of action were pleaded in the statement of claim. I have to bear this in mind in considering the strike out motion by the third defendant and try to adapt the motion to the causes of action in the amended statement of claim.


At the hearing of this matter, counsel for the third defendant relied on the relevant provisions of the Limitation Act 1975 and absence of any reasonable cause of action as grounds for striking out certain causes of action pleaded against the third defendant. But before I consider those matters, I want to refer to the status of the third defendant as a party to these proceedings.


Status of third defendant as a party


The first difficulty that strikes me is that it is pleaded in the plaintiff’s second cause of action that the third defendant held a position of trust, was a constructive trustee for the benefit of the plaintiffs, and was therefore accountable to the plaintiffs for breaches of duty, but the third defendant is described in the backing sheet of the amended claim as the estate of the late Elia Iamaleava and the estate of the late Falute Iamaleava. In paragraph 5 of the amended claim, the third defendant is described as the estate of the late Elia Iamaleava. The same difficulty extends to the other causes of action pleaded against the third defendant.


Falute, as already mentioned, was a daughter of the late Tuia Vaa who died on 16 December 1966. She was one of the two beneficiaries named in the will of her late father. Falute, herself, passed away in 1986 leaving a will in which she appointed her son Elia as executor. Probate of Falute’s will was granted to Elia on 23 February 1995. But Elia then passed away on 5 September 2001. There is no mention in the plaintiffs' amended claim whether a new administrator has been appointed of Falute’s estate. There is also no mention in the amended claim whether an administrator has been appointed of Elia’s estate.


Usually, it is the administrator of the estate of a deceased person that has the power to sue in respect of the estate: s.13 of the Administration Act 1975. I would also have thought that the administrator would normally be the person to be sued in an action against the estate of a deceased person because the estate vests in the administrator upon the grant of administration: s.14 of the Act. However, I have not found any Samoan law that is directly on this point. But in The Law of Torts in New Zealand (1997) 2nd ed by Todd et al, it is there said at pp1177 – 1178 in respect of the survival of causes of action on the death of any person in terms of the Law Reform Act 1936 (NZ):


“On the death of any person, all causes of action subsisting against or vested in that person, except a cause of action for defamation, survive against or for the benefit of the estate. Actions which survive in this way are brought or defended by the personal representatives of the deceased person.”


Reference is then made to r77 of the High Court Rules (NZ) and r79 of the District Court Rules (1992) (NZ). Samoa does not have a rule similar to r77 or r79 but in my opinion r77 and r79 give valuable guidance on what should be done in a case like this. Imagine an estate which comprises of only a piece of land being sued directly. The land is a lifeless object which cannot respond or file a statement of defence or a strike out motion. The land on its own cannot pay costs if costs are awarded against the estate. Thus the proper defendants to be sued in respect of the estates of Elia Iamaleava and Falute Iamaleava should have been the personal representatives of Elia and Falute.


Second cause of action against third defendant


The plaintiffs second cause of action is in constructive trust and it relates to the first, second and third defendants. For the purposes of the third defendant’s strike out motion, I will deal with the second cause of action insofar as it relates to the third defendant.


What counsel for the third defendant was saying was that at the very heart of the plaintiffs second cause of action in constructive trust is the will of the late Tuia Vaa in which only Isaako and Falute are named as beneficiaries and not any of the first plaintiffs or any of the parents of the second plaintiffs. What the plaintiffs are in effect saying is that the will is invalid and ineffectual on the ground of undue influence and that Isaako, whose personal representative is the second defendant, and Falute were parties to that undue influence. The second and third defendants should therefore be held as constructive trustees of the estate of the late Tuia Vaa for the benefit of the first plaintiffs who are two of the sixteen children of Tuia Vaa and the second plaintiffs who are some of the grandchildren of Tuia Vaa.


Undue influence is reflected from the pleadings in the amended claim which allege that on 7 July 1966 the late Isaako, the late Falute and the first named plaintiff Leala Vaa Tuia accompanied their late father Tuia Vaa to the office of the late Mr Jackson who was then a solicitor in Apia to make a will for Tuia Vaa. At that time Tuia Va’a was 78 years old, in very poor health, and did not understand or speak English. Isaako, who was a church minister, and Falute, who was a schoolteacher, both spoke English fluently. At Mr Jackson’s office, Isaako told the first plaintiff Leala to wait outside while Isaako and Falute accompanied their father into Mr Jackson’s office. It is also alleged in the amended claim that before Tuia Vaa passed away on 16 December 1966, he had told the first plaintiff Leala that all his lands were entrusted to Isaako and Falute as trustees for all his children. Leala claims he never saw a copy of his late father’s will until 29 September 2001. The will shows Isaako and Falute as the only beneficiaries. In these circumstances, the inference may be drawn that the will was not the free or voluntary act of the late Tuia Vaa but was made under undue influence. There also hints that the testator might not have had full testamentary capacity at the time he executed his will.


The second cause of action was said to be founded on Tuia Vaa’s will whose validity is challenged by the plaintiffs on the ground of undue influence. I have decided that even though the plaintiffs' second cause of action is framed as one in constructive trust, it is really based on the said will. That being so, counsel for the third defendant submitted that the second cause of action is time barred as its foundation is time barred. Section 6(6) of the Limitation Act 1975 provides:


“An action to have any will of which probate has been granted, or in respect of which letters of administration with the will annexed have been granted, declared or adjudicated to be invalid on the ground of want of testamentary capacity in the testator or on the ground of undue influence shall not be brought after the expiration of 12 years from the date of the granting of the probate or letters of administration.”


As already mentioned, probate of the will of Tuia Vaa was granted on 12 September 1979 and the plaintiffs claim was filed on 4 October 2001. In other words the plaintiffs only filed their claim 22 years after the grant of probate. Counsel for the third defendant also pointed out that because of the delay in the plaintiffs bringing their claim, the third defendant is handicapped in its defence because Tuia Vaa, Isaako, Falute and Mr Jackson the solicitor who prepared the will of the testator have all passed away. Even though the first plaintiff Leala Vaa Tuia claims to have seen a copy of his father’s will for the first time on 21 September 2001, he was aware all along of the existence of his late father’s will because he says that he was one of the persons who accompanied his father in 1966 to Mr Jackson’s office to make a will. Counsel for the third defendant further emphasised that the first defendant, the Public Trustee, had issued a public notice on 21 January 1976 to any creditors or claimants of the testator’s estate allowing three months within which to inform the first defendant of any interests. When the public notice expired on 21 April 1976, none of the plaintiffs had notified the first defendant of any interests.


I had decided to accept the submissions by counsel for the third defendant that the plaintiffs second cause of action in constructive trust is really founded on the plaintiffs attempt to impeach the testator’s will. It is only if the will is not valid that the cause of action in constructive trust has a chance of success. If the will is valid then there can be no valid foundation for the plaintiffs' second cause of action. In terms of s.6(6) of the Limitation Act 1975, the second cause of action against the third defendant is time barred. It is therefore struck out.


Third cause of action against third defendant


The plaintiffs' third cause of action is based on fraud. But the pleadings in the third cause of action do not link up with paragraph (iii) of the prayer for relief which seeks a declaration that the will of the late Tuia Vaa was inequitable and invalid. In terms of s.6(6) of the Limitation Act 1975, however, a claim for a declaration that a will is invalid on the ground of want of testamentary capacity in the testator or on the ground of undue influence is barred at the expiration of 12 years from the date of the granting of probate or letters of administration. Likewise, under the family protection provisions of the Administration Act 1975 which counsel for the third defendant referred to, s48 provides that the time limit for a motion to be filed under those provisions of the Act is 12 months from the grant of probate. The plaintiffs had pleaded a cause of action in their statement of claim under the family protection provisions of the Administration Act 1975. But that cause of action does not reappear in the amended statement of claim. I therefore take it that the prayer in paragraph (iii) of the prayer for relief to the third cause of action that the will of the late Tuia Vaa was inequitable and invalid does not have in mind a claim under the family protection provisions of the Act.


In the circumstances, I decided to strike out paragraph (iii) of the prayer for relief to the third cause of action as time barred.


As to paragraph (iv) of the prayer for relief to the third cause of action seeking an order that the plaintiffs receive a fair and equitable division from the estate of Tuia Vaa, I am of the view that before the plaintiffs can reach that stage, they must first succeed in having the will declared invalid or set aside. But an action or motion to that effect is now time barred under s6(6) of the Limitation Act 1975. If, however, the plaintiffs were successful in having the will set aside, they would then be in a position to consider bringing claims under the rules of succession in an intestacy provided under s44 of the Administration Act 1975. If they are all qualified under s44, there would be no need to plead fraud or whatever. But there is no claim by the plaintiffs under the rules of succession in an intestacy in the event that their claim to have the will declared invalid succeeds.


The allegations of fraud made by the plaintiffs in their third cause of action are made against the late Isaako and Falute, they are not made against the late Tuia Vaa. I do not see why the estate of Tuia Vaa should be liable for the fraud alleged against Isaako and Falute. There is therefore no reason why the plaintiffs should receive a fair division from the estate of Tuia Vaa for the fraud alleged against the late Isaako and Falute for the moneys they were said to have been given by the plaintiffs for the subdivision of their father’s estate. Isaako and Falute were also not the administrators of Tuia Vaa’s estate. It is the first defendant, the Public Trustee who is the administrator. In any event, I had decided to strike out paragraph (iv) of the prayer for relief to the plaintiffs third cause of action as it is also time barred.


Fourth course of action against third defendant


The plaintiffs' fourth cause of action is pleaded in unconscionable conduct, unjust enrichment and estoppel and is directed against the second and third defendants. In several parts of this cause of action, the plaintiffs claim to have legal or equitable rights or interest in the estate of the late Tuia Vaa. If the first plaintiffs as children or the second plaintiffs as grandchildren of the late Tuia Vaa are to have interests in the estate of Tuia Vaa, there are three ways by which they may claim such interests. The first may be will, the second may be under the family protection provisions of the Administration Act 1975, and the third may be under the rules of succession in an intestacy as provided under s44 of the Administration Act 1975.


In their statement of claim, one of the causes of action that was pleaded by the plaintiffs was based on the family protection provisions of the Administration Act 1975. That cause of action does not reappear in the amended statement of claim. So one presumes that the plaintiffs are no longer claiming any interest in the estate of Tuia Vaa under the statutory family protection provisions. That leaves only the possibility of a claim based on the rules of succession in an intestacy or under a will by Tuia Vaa. However, under the will that was executed by Tuia Vaa before he died, only his son Isaako and his daughter Falute are named as beneficiaries. So the plaintiffs cannot claim an interest in the estate of Tuia Vaa under the will of Tuia Vaa. That leaves only the rules of succession in an intestacy. But before the plaintiffs can claim under the rules of succession in an intestacy, they must first succeed in setting aside the will of Tuia Vaa. But any claim to set aside the will of Tuia Vaa is now time barred because of the provisions of s6(6) of the Limitation Act 1975 which require such a claim, based on lack of testamentary capacity in the testator or undue influence, to be brought within 12 years from the date of the grant of probate. The plaintiffs have also not filed a claim under the statutory rules of succession in an intestacy. So under the three options I have referred to by which the plaintiffs may claim an interest in the estate of Tuia Vaa, none of those options is now available to the plaintiffs.


What the plaintiffs seem to be doing, is to allege fraud or unconscionable conduct against Isaako and Falute, the two beneficiaries of Tuia Vaa’s will, and then say that because of the alleged fraud or unconscionable conduct on the part of Isaako and Falute, they have an interest or right in the estate of Tuia Vaa. I do not think this is right. In my view, the estate of Tuia Vaa is not liable for the alleged fraud or unconscionable conduct on the part of Isaako and Falute. It might have been different if the alleged fraud or unconscionable conduct was on the part of Tuia Vaa himself. But that is not the case here. As it has also been pointed out, Isaako and Falute were not the administrators of Tuia Vaa’s estate. The administrator is the first defendant who is the Public Trustee.


To my mind, if any one is to be liable for the alleged fraud or unconscionable conduct on the part of Isaako and Falute, it should be Isaako and Falute themselves, or, if they have died, their respective estates. The fraud or unconscionable conduct of a deceased person, if proved, should bind his or her own estate and not the estate of someone else who was not a party to the same fraud or unconscionable conduct. Thus the various claims by the plaintiffs that they have an interest in the estate of Tuia Vaa due to the fraud and unconscionable conduct alleged against Isaako and Falute is unsustainable.


For the foregoing reasons the various claims by the plaintiffs to an interest in the estate of Tuia Vaa because of the alleged fraud or unconscionable conduct against Isaako and Falute or because they are children and grandchildren of Tuia Vaa should be struck out.


It follows from what has already been said that paragraph (ii) of the prayer for relief to the fourth cause of action which seeks a declaration that the last will of the late Tuia Vaa was illegal, inequitable and therefore void should also be struck out as time barred.


Applications for security for costs


The first, second and fourth defendants had all made applications for security for costs. As the first and second causes of action against the first defendant have been struck out, it is not necessary to deal with the first defendant’s application for security for costs. That leaves only the applications by the second and fourth defendants which are directed at the first plaintiffs Leala Vaa Tuia and Penati Tuia who reside in Auckland, New Zealand, and American Samoa respectively, and the second plaintiff Muavaa Ati Soo who resides in Hawaii.


The relevant rule of the Supreme Court (Civil Procedure) Rules 1980 is rule 30 which provides:


“(1) In any civil proceedings and at any stage thereof, the Supreme Court may require a plaintiff or applicant resident out of the jurisdiction of the Supreme Court to deposit any sum of money as security for costs and may stay the proceedings pending the making of that deposit.


(2) When any sum has been so deposited as security for costs, it shall be so disposed of as the Court directs.”


The jurisdiction of the Court under r30 is discretionary. There is no absolute rule which controls the exercise of the discretion whether to grant or refuse an application for costs. How the discretion is exercised depends on the circumstances of each case. The governing consideration is whether in all the circumstances it is just to make an order for security: Aliimalemanu Iao Metai v Ruby Drake and Murray Drake (2000) (unreported judgement of the Supreme Court delivered on 2 November 2000). In Metai’s case, the Court referred to some of the considerations which, in the particular circumstances of a case, may be relevant to the exercise of its discretion. They include the ability of the plaintiff to meet a judgment for costs if he is unsuccessful with his claim; the costs and expenses involved in the enforcement of a judgment for costs in a foreign jurisdiction; the merits of the plaintiff’s claim; and the merits of any defence raised by the defendant. Another relevant consideration which was raised by counsel for the fourth defendant is the existence of a co-plaintiff who resides within the jurisdiction and who would be able to meet a total award for costs. No doubt there are many other considerations, and the list I have given is not exhaustive.


Before I deal with the considerations to be taken into account in the exercise of the Court’s discretion in this case, there is one matter that was raised by counsel for the plaintiffs that I wish to dispose of first. Counsel for the plaintiffs had submitted that an application for security for costs is unconstitutional because it violates the plaintiffs' right to a fair trial under Article 9 of the Constitution. Counsel for the plaintiffs had made a similar submission in Metai’s case and I had dismissed it. In so doing, I referred to the following passage from Dicey and Morris The Conflict of Laws (1993) 12th ed, vol 1 p204 where it is stated:


“The English practice, and that based upon it in other common law countries, has been the subject of complaint on human rights or constitutional law grounds. The European Commission of Human Rights has rejected as manifestly ill-founded an application in which it was argued that the dismissal by the Court of Appeal of an appeal on the failure of the appellants, who were resident abroad, to lodge security for costs amounted to a denial of access to Court, contrary to Article 6(1) of the European Convention on Human Rights. In Canada, provisions as to security for costs by non-resident plaintiffs have been attacked as contravening the principle of equality before the law in section 15(1) of the Canadian Charter of Rights and Freedoms. Although successful in one case, the balance of authority is clearly against this argument. The Irish High Court has held that a requirement that a plaintiff give security for costs did not fetter any of his rights under the Irish Constitution.”


Article 6(1) of European Convention on Human Rights which provides the right to a fair trial is expressed in very similar terms to Article 9(1) of the Samoan Constitution. On the authority of Dicey and Morris The Conflict of Laws (1993) 12th ed, vol 1, p204, I would have to reject again the same submission by counsel for the plaintiffs which was raised in Metai’s case and has been raised again in this case. I move on now to consider the factors which are relevant to the exercise of the Court’s discretion in this case.


Plaintiffs ability to pay a judgment for costs from assets within Samoa if they are unsuccessful


As already mentioned the three plaintiffs who are resident overseas and are the subject of the applications for security for costs by the second and fourth defendants are the first plaintiffs Leala Vaa Tuia who resides in Auckland, New Zealand, and Penati Tuia who resides in American Samoa, and the second plaintiff Muaava Ati Soo who resides in Hawaii.


In respect of the plaintiff Leala Vaa Tuia, he states in his affidavit of 28 January 2002 that he has a home at Otara, Auckland, New Zealand. He also owns a freehold property in Samoa with a house built on it. Counsel for the fourth defendant has pointed out in her written submissions that this plaintiff has not provided particulars or a valuation of his property in Samoa. It has also not been shown whether the property is encumbered or unencumbered. With the plaintiffs claiming $1,000,000 (one million talā) in damages, each of the second and fourth defendant may seek $30,100 costs in terms of the scale of costs provided under the Supreme Court (Fees and Costs) Rules 1971.


In respect of the plaintiff Penati Tuia who lives in American Samoa, this plaintiff has developed and improved a house on a parcel of land at Vailoa. That parcel of land is registered under the Public Trustee, the first defendant in these proceedings, who has yet to distribute the land on which the house is situated. Counsel for the second and fourth defendants submit that the building materials would be of no use to their clients.


In respect of the plaintiff Muavaa Ati Soo who lives in Hawaii, he has two houses built on parcels 480 and 187 of the estate of the late Tuia Vaa. Both parcels of land are registered under the Public Trustee, the first defendant, and are subject to mortgages. There is also a caveat on parcel 187.


Existence of a co-plaintiff within jurisdiction who is able to pay a judgment for costs


There was no evidence placed before this Court regarding the ability or willingness of any of the co-plaintiffs who ordinarily resides in Samoa to meet an award of costs if the plaintiffs are unsuccessful in their claim.


Costs involved in the enforcement of a judgment for costs in a foreign jurisdiction


Except for New Zealand, there are no arrangements for the reciprocal enforcement of judgments of the superior Courts of Samoa in American Samoa or Hawaii. This may mean that if the plaintiffs are unsuccessful in their claim and the plaintiffs Penati Tuia and Muavaa Ati Soo do not pay an award for costs against the plaintiffs, the second and fourth defendant cannot enforce the award through the Courts in American Samoa or Hawaii unless, perhaps, they re-litigate the issue in those countries. That would be quite expensive. There was no evidence before this Court of an estimate of the costs involved in having a judgment of a Samoan Court enforced in New Zealand where the plaintiff Leala Vaa Tuia resides. But I would presume on the basis of information given to this Court for a similar exercise in Metai’s case, that the costs would not be minimal or insignificant.


Merits of the plaintiffs claim


Without intending any discourtesy to counsel for the plaintiffs, who has apparently worked hard in preparing the plaintiffs claim, I have had difficulty in trying to ascertain from the amended statement of claim the elements of the causes of action pleaded which include the second defendant as administrator of the late Isaako Tuia and the facts which are relevant to support each of the elements of those causes of action. The causes of action which include the second defendant are constructive trust, fraud, unconscionable conduct, unjust enrichment and estoppel. This is an impressive array of causes of action in equity and in the law of restitution. But the law in these areas is not without complexities, particularly when it has to be considered against the background of a will whose validity is being questioned.


Be that as it may, it is said under the cause of action for constructive trust that the first, second and third defendants were constructive trustees for the benefit of the plaintiffs “for reasons including but are not limited to those pleaded in paragraphs 1 – 48” of the amended statement of claim. This is a broad, general and open-ended statement which does not explain with clarity why the named defendants are labelled as constructive trustees for the benefit of the plaintiffs. Paragraph 58 of the second cause of action then states that the second and third defendants are constructive trustees by virtue of the fact that they are trustees accountable for the property they received as a result of breaches of duty by the late Falute and Isaako. Here it is not clear what duty was breached by the late Falute and Isaako and whether such duty was owed to the plaintiffs. It is then further stated that the second and third defendants did “acts characteristic of the office of trustee” and thus became constructive trustees in favour of the plaintiffs. Here again it is not clear what “acts characteristic of the office of trustee” were performed by the second and third defendants and how the performance of such acts made them constructive trustees for the plaintiffs.


I had also repeatedly asked counsel for the plaintiffs during the hearing of this matter for an explanation as to how the first defendant assisted Isaako and Falute, the two named beneficiaries in the will of Tuia Vaa, in a breach of trust as alleged in paragraph 59. There was no explanation as to how the first defendant might have assisted Isaako and Falute in a breach of trust. It was also not clear what trust, if any, was breached by Isaako and Falute.


In paragraph 61, it is stated that the first, second and third defendants received property already subject to an implied trust, and with knowledge that the property was held under an implied trust, subdivided and transferred the trust property in a manner inconsistent with the trust. The use here of the term implied trust is inapt as the pleadings do not reveal a resulting trust or incomplete trust.


Paragraph 62 then states that the defendants position of trust gave rise to a constructive trust and the first and second defendants hold the estate of the late Tuia Vaa under a constructive trust. Again paragraph 62 is not very clear. If it is meant to relate back to paragraph 61, then there is no implied trust disclosed from the pleadings. An implied trust is not the same thing as a constructive trust.


It is then alleged in paragraph 63 that the second and third defendants have not accounted for the money which the plaintiffs paid to the late Isaako and Falute on the basis of representations by Isaako and Falute that the money would be used for the subdivision of the estate which would then be subdivided amongst all the children of their late father Tuia Vaa. Paragraph 63 seems to allege false representations against Isaako and Falute. It is debatable whether the alleged false representations made by Isaako and Falute to the plaintiffs would give rise to an equity in the estate of Tuia Vaa in favour of the plaintiffs. There is no distinct pleading of such an equity having arisen in favour of the plaintiffs. In my respectful view, as the pleadings presently stand, an action in tort for deceit would appear more appropriate than an action in equity for a constructive trust.


With regard to the cause of action in fraud, it appears that even though the pleadings in paragraphs 65 – 70 of the amended claim refer to the second and third defendants, in actual fact they are referring to the late Isaako and Falute. This becomes clear by referring back to paragraphs 29 – 61 of the amended claim. The essence of this cause of action in fraud is that the late Isaako and Falute had a legal and an ethical duty to disclose to their siblings, the first plaintiffs, that their true intentions were to subdivide their father’s estate between themselves and their descendants only. By not disclosing their true intentions to the plaintiffs, Isaako and Falute were in breach of that duty. As a consequence, the plaintiffs have suffered injury to their reputations, emotions and finances. With respect, I have real reservations whether the duty claimed does exist in law or in equity given the circumstances that have been pleaded in the claim. If there have been any false representations made by Isaako and Falute to the first plaintiffs to give them (Isaako and Falute) money for the subdivision of their father’s estate to be shared amongst all of them, the appropriate action would seem to be for the tort of deceit. Whether you can claim for injury to reputation or emotions for such a tort is another matter. But if it is right that the appropriate action should be in the tort of deceit, another difficulty arises. Falute passed away in 1986 but the limitation period provided for an action in tort under s6(1) of the Limitation Act 1975 is 6 years. Isaako passed away in 1996.


The next cause of action is founded on unconscionable conduct. It is alleged in paragraph 71 that the second and third defendants knew of the plaintiff’s interest in the estate of the testator because of discussions at family meetings. It is not clear what interest the plaintiffs have in mind here. It is then stated at paragraph 73 that the second and third defendants had actual or imputed knowledge of the contributions made to the subdivision of the estate. Paragraph 73 then further states that the second and third defendants had retained the plaintiffs' contributions (apparently the monetary contributions made to Falute who died in 1986 and to Isaako who died in 1996). It is also stated that the second and third defendants have retained the proceeds of sales of some of the estate lands for their own use. Paragraph 74 then states that the plaintiffs have an equitable interest in the estate and equity requires that a constructive trust should be imposed. Again, it is not clear what is the equitable interest that is claimed and how did it arise in the estate.


The next cause of action is in unjust enrichment. This Court has previously dealt with claims based on the concept of unjust enrichment. The elements of a cause of action in unjust enrichment are (a) the defendant has gained a benefit, (b) at the expense of the plaintiff, (c) there is no juristic reason for the defendant retaining the benefit or, as it is sometimes expressed, it is unjust for the defendant to keep the benefit. It is not plain at first glance how the second and third defendants have gained a benefit at the expense of the plaintiffs when the estate in question does not belong to the plaintiffs but to the late Tuia Vaa. Assuming, however, that the defendants have gained a benefit at the expense of the plaintiffs, there is a juristic reason for the second and third defendants retaining the benefit of the estate. That juristic reason is the will of Tuia Vaa in which Isaako and Falute were named as beneficiaries. The pleadings for this particular cause of action do not show that the will of Tuia Vaa was invalid. Unless the plaintiffs can successfully impeach the said will, there is no chance for the cause of action in unjust enrichment succeeding.


The last relevant cause of action is based on estoppel. It is claimed in paragraphs 82 – 85 of the amended claim that the contributions made by the plaintiffs to the costs of subdivision of the estate of Tuia Vaa and the actions and representations made by Isaako and Falute have given rise to an estoppel so that the second and third defendants are precluded from denying that the plaintiffs are also entitled to the estate of Tuia Vaa. This Court has previously dealt with estoppels raised in relation to land under the umbrella of proprietary estoppel. In those cases, the Court took the view that if the owner of land by words or conduct or both encouraged someone or acquiesced in someone expending money or labour on land in the belief that the land belonged to him or would be given to him, an equity arises in favour of the person who had expended money or labour on the land. How that equity should be satisfied is a matter for the discretion of the Court. There other circumstances where the Court may hold that an equity has arisen in favour of a third party in relation to the owner of land and the Court has to decide on the appropriate remedy. This Court has also taken the view that the equity which has arisen in land in favour of a third party under the doctrine of proprietary estoppel may bind the estate of the owner and his personal representative when he dies.


The situation here is rather different as Isaako and Falute were not the owners of the land in question which belonged to their father. It also appears that at the times that the family meetings, mentioned by the plaintiffs, were held, the estate of Tuia Vaa had not been completely administered. Administration is still incomplete. However, having said that, equity has not stopped evolving and developing.


With regard to the merits of the claim in negligence against the fourth defendant, it is alleged in paragraphs 86 – 95 of the amended claim that the fourth defendant, as solicitors for the plaintiffs, withdrew the caveat they had lodged in favour of the plaintiffs without the knowledge or consent of the plaintiffs. As a consequence, parts of the estate lands were sold and the plaintiffs have suffered damage. As damages is an essential element of a cause of action in negligence, this part of the claim has a real link to the causes of action against the second and third defendants where an equitable interest in the disputed estate is claimed by the plaintiffs. That means if the plaintiffs have no valid equitable interest in the estate of Tuia Vaa, then they could not have suffered any damages as a result of the sales of the estate lands that were made possible by the withdrawal of the caveat by the fourth defendant.


Defence by second and fourth defendants


The statement of defence filed by the second defendant denies just about every allegation in the amended statement of claim but admits that Tuia Vaa passed away on 16 December 1966, that the late Isaako passed away on 11 February 1996 leaving a will in which his son the second defendant is appointed administrator of his estate, and Elia Iamaleava died in September 2001.


As to the statement of defence filed by the fourth defendant, a firm of solicitors in Apia, it is there claimed that the fourth defendant was instructed by the second plaintiff Sydney Laikum on behalf of himself, the first plaintiff Leala Vaa Tuia and the second plaintiff Mafutaga Salesa Tuia to lodge a caveat over the lands which comprised the estate of the late Tuia Vaa. The fourth defendant denies that it was instructed on behalf of all the plaintiffs or acting on behalf of all the plaintiffs. It is also stated that on 12 August 1996, the caveators were served with an application for the removal of the caveat. Proceedings for removal of the caveat were mentioned in Court the same day and were further adjourned for counsel for the caveators to file affidavits in reply to the application. Several meetings then followed between counsel and the plaintiff Laikum. Only the first of those meetings was attended by other representatives of the plaintiffs. At one of those meetings, apparently the last one, the second plaintiff Sydney Laikum authorised the removal of the caveat. On 26 November 1996 when the application for removal of the caveat was rementioned in Court, the Court pointed out that ample opportunity had been given to the caveators to file affidavits in reply or settle the proceedings. Notice for withdrawal of the caveat was then filed and on 9 December 1996. The fourth defendant was later notified that the caveat had been formally withdrawn from the land register.


In effect, the fourth defendant is saying that the second plaintiff Sydney Laikum authorised the removal of the caveat from the land register and that it was Sydney Laikum who had instructed the fourth defendant to lodge a caveat. So the fourth defendant is denying professional negligence as alleged by the plaintiffs.


Overall, the prospects of success of the plaintiffs causes of action against the second defendant do not appear to be high. Similarly, the prospects of success of the plaintiffs cause of action in professional negligence against the fourth defendant do not appear to be high. This is because damages is an essential element of a cause of action in negligence and the damages the plaintiffs are actually relying on is the injury to their alleged interest in the estate of Tuia Vaa, part of which was sold after the withdrawal of the caveat by the fourth defendant. Breach of a duty care owed by the fourth defendant to the plaintiffs is another essential element of the cause of action in negligence. On this issue there are conflicting accounts given by the parties as to whether the caveat was withdrawn by the fourth defendant with or without the knowledge and consent of the plaintiffs.


Each of the second and fourth defendant had sought security in the sum of $31,000 as that would be the estimated costs on a claim of $1,000,000 in terms of the Supreme Court (Fees and Costs) Rules 1971. I had decided that each of the non-resident plaintiffs Leala Vaa Tuia, Penati Tuia and Muavaa Ati Soo deposit with the registrar the sum of $6,000 for security for costs and that further proceedings on the plaintiffs claim and amended claim be stayed until the security for costs have been paid in full to the registrar.


In her written submissions, counsel for the plaintiff states that the plaintiffs are contemplating filing another amended statement of claim to add an alternative cause of action by way of adverse possession. The security for costs ordered would have to be deposited first with the registrar before that can be done.


CHIEF JUSTICE


Solicitors:
Woodroffe Law Partnership for first plaintiffs and second plaintiffs
Public Trust Office for first defendant
A Roma for second defendant
Fepuleai & Schuster Law Firm for third defendant
S Hazelman for fourth defendant

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