IN THE SUPEME COURT OF SAMOA
HELD AT APIA

IN THE MATTER:
of the Land Registration Act 1992/1993.

AND:

IN THE MATTER:
of an application by
DORA LETELE of Auckland, Widow,
MARIA SHECK of Aai-o-Fiti, Widow,
THERESA LEAU of Togafuafua, Widow,
JOSEPHINE HUNT of Vaitoloa, Widow,
MARY HICKS of Aleisa, Spinster,
and 
EMELIA COLLINS of Auckland, New Zealand, Married Woman,
for the removal of Caveat no.538x.
Applicants

AND:

RASELA MOLI FILIA,
PISAINA FILIA,
POVITA HICKS,
TUIVALE HICKS and
SILIA HICKS
Respondents

AND:

PUBLIC TRUSTEE
Intended Third Party

Counsel: P A Fepulea’i for applicants
O Woodroffe for respondents
H Hoglund for intended third party

Judgment: 18 June 2008

JUDGMENT OF SAPOLU CJ

Nature of proceedings

[1]	The issue for determination in these proceedings is a third party notice by the respondents to join the Public Trustee as a third party to proceedings by the applicants for removal of a caveat lodged by the respondent Silia Hicks with the Registrar of Land.

[2]	What happened was that the respondent Silia Hicks had lodged a caveat No. 538x to forbid the registration of any instrument affecting a parcel of land of which the applicants are six of the registered owners. The applicants then filed a motion for removal of the caveat. Before the hearing of that motion, the respondents filed a third party notice to join the Public Trustee as third party.

[3]	I must say that it is unprecedented in this jurisdiction for a respondent caveator in proceedings for removal of a caveat to file a third party notice, particularly if the intended third party has nothing to do with the caveat. The first issue for determination is, therefore, whether the third party notice is appropriate. If it is, then it would be necessary to consider the question of time limitation raised on behalf of the Public Trustee as intended third party. But if it is not, then the third party notice is irrelevant for the purpose of the applicants’ motion for removal of the caveat.

Brief background

[4]	It is not necessary for the purpose of this judgement to go into the background of this matter in great detail. Briefly, the land which is the subject of the caveat was part of the estate of one William Hicks (William Hicks Snr) who passed away intestate on 28 August 1899. The land is known as "Faimonolima". It contains about 23 acres and is at the village of Leauva’a.

[5]	On 23 January 1923, letters of administration of the estate of the late William Hicks Snr were granted to the Public Trustee who became the administrator of the estate. On 27 September 1965, the Public Trustee conveyed to William Hicks Jnr, the son of William Hicks Snr, as sole successor of his late father’s estate the land which is the subject of the caveat. Then by deed of conveyance dated 8 December 1967 William Hicks Jnr gifted the said land to his wife, now deceased, and his children which include the applicants. That was how the applicants became six of the registered owners of the land. The other registered owners were their mother, now deceased, and their two brothers who are also deceased.

[6]	The respondents do acknowledge that the applicants are grandchildren of William Hicks Snr. Where the dispute has arisen is that the respondents claim that William Hicks Snr had two sons. The first was John Hicks and the second was William Hicks the father of the applicants.

[7]	According to one of the two affidavits of the respondent Silia Hicks aka Sesilia Hingston nee Hicks who lodged the caveat, John Hicks, the first son of William Hicks Snr, married a woman from Tonga named Hulita or Sulita in Samoan. John Hicks and Sulita Hicks are the grandparents of the respondents. Silia Hicks says in her affidavit that their grandmother Sulita and William Hicks Jnr the father of the applicants shared equally in the estate of William Hicks Snr and there are records in the Public Trust Office which show that. They are, therefore, claiming an interest in the land through their grandmother. Silia Hicks also says that her family have been living on the land since 1949.

[8]	The applicant Josephine Hunt nee Hicks categorically denies in her affidavit that the respondents are descendants of William Hicks Snr. She says that one Joseph Toni Hicks, the son of a Fijian national, was brought over to Samoa by her grandfather William Hicks Snr. Joseph Toni Hicks later married a Samoan woman named Sulika. The respondents are the grandchildren of Joseph Toni Hicks and Sulika.

[9]	As a result of this dispute between the parties, the respondent Silia Hicks lodged caveat 538x to forbid the registration of any instrument affecting the land. So she is the caveator.

[10]	Why the other respondents have been cited in the applicants’ motion for removal of the caveat is because the applicants in their motion are also seeking an order for eviction against the respondents. I do not have to deal with the applicants’ motion for eviction in this judgment.

The applicants claim and the respondents defence and counterclaim

[11]	The applicants in their capacity as plaintiffs allege in their amended statement of claim that they are the registered owners of the land. They are therefore seeking an order for the eviction of the respondents as defendants from the land.

[12]	In reply the respondents as defendants to the amended statement of claim have filed a statement of defence and counterclaim. As their defence, the respondents deny that the applicants are the exclusive owners of the land. They say that they should also be registered as additional owners. Their counterclaim is based on adverse possession and fraud.

The respondents’ third party notice

[13]	The third party notice by the respondents seeks to join the Public Trustee as a third party to the applicants’ motion for removal of the caveat. It relies on all four grounds (a)–(d) in r.43 (1) of the Supreme Court (Civil Procedure Rules) 1980.

[14]	The third party notice was filed with a statement of claim which pleads three causes of action against the intended third party. These are negligence, equitable fraud and mistake.

Relevant law to third party procedure

[15]	Insofar as relevant, r.43 provides:

"(1) Where a defendant claims as against any person not already a party to the action (in this Part called the third party):

"(a)	That he is entitled to contribution or indemnity; or

"(b)	That he is entitled to any relief or remedy relating to or connected with the original subject – matter of the action and is substantially the same as some relief or remedy claimed by the plaintiff; or

"(c)	That any question or issue in the action should properly be determined not only as between the plaintiff and the defendant, but also as between the plaintiff, the defendant, and the third party, or as between any or either of them; or

"(d)	That any question or issue relating to or connected with the said subject-matter is substantially the same as some question or issue arising between the plaintiff and the defendant, and should properly be determined as aforesaid;

"The defendant may move the Court on notice for leave to issue and serve a third party notice, and shall attach a copy of the proposed third party notice to the motion."

[16]	It is clear from the opening words of r.43 (1) that the third party procedure applies only to an "action" where a defendant claims as against any person who is not already a party to the "action". This is reinforced by the references in r.43 (1) (b) and (c) to "the action". The third party procedure therefore does not apply to a motion for removal of a caveat which is not an "action".

[17]	Rule 13 which sets out the procedure for the commencement of an action provides:

"Every action shall be commenced by filing with the Registrar of the Court a statement of claim… setting forth the names and descriptions of the plaintiff and defendant, the nature of the cause of action, and the relief claimed".

[18]	Proceedings for the removal of a caveat are not commenced by filing a statement of claim setting out, inter alia, the nature of a cause of action. Such proceedings are commenced with a motion or application with supporting affidavits setting out and explaining the grounds as to why the caveat should be removed.

[19]	An action is also dealt with at a trial whereas a motion or application for removal of a caveat is normally dealt with by summary procedure, that is, by way of affidavits and submissions by counsel. The onus is on the caveator to show cause as to why the caveat should not be removed. On the other hand, with the trial of a claim the onus of proof is on the plaintiff.

(b)	Nature and object of the third party procedure
[20]	In the often cited judgment of Scrutton LJ in Barclays Bank v Tom [1922] A11ER 279, His Lordship, in explaining the nature of the third party procedure, said at p.280:

"It is important to keep clearly in mind what the third-party procedure is. A plaintiff has a claim against a defendant. The defendant thinks that if he is liable, he has a claim over a third party. With that matter between the defendant and the third party the plaintiff has clearly nothing to do, not being concerned with the question whether the defendant has a remedy against somebody else. His remedy is against the defendant. But the defendant is much interested in getting the third party bound by the result of the trial between the plaintiff and himself, for otherwise he might be at a great disadvantage if, having fought the case against the plaintiff and lost, he had then to fight the case against the third party possibly on different materials, with the risk that a different result might be arrived at".

[21]	As to the object of the third party procedure, Scrutton LJ went on to say in p.280:

"The object of the third party procedure is therefore, in the first place, to get the third party bound by the decision given between he plaintiff and the defendant, so that the defendant may not be in the position of having to wait a considerable time before he establishes his right of indemnity against the third party while all the time the plaintiff is enforcing his judgment against the defendant. And, thirdly, it is directed to saving the extra expense which would be involved by two independent actions. With these objects in view the third-party order usually provides that the third party may appear at the trial between the plaintiff and the defendant".

[22]	From what has been said, it is clear that the third party procedure may be appropriate where there is an action or claim by the plaintiff against the defendant and the defendant thinks that he has cause of action or claim against a person who is not already a party to the plaintiff’s claim. The defendant many then seek to join that person as a third party. The plaintiff has nothing to do with the defendant’s claim against the third party.

Opposition to the third party notice

[23]	Counsel for the Public Trustee strongly opposes leave being granted to the respondents to join the Public Trustee as a third party. He relies on several grounds, principally the Limitation Act 1975. As I have come to the clear view that the third party procedure is inappropriate in proceedings for removal of a caveat, it will not be necessary to reach any conclusion on the submissions made on behalf of the Public Trustee.

Conclusion

[24]	As the third party procedure seeking to join the Public Trustee as a third party is inappropriate in the present proceedings by the applicants for removal of the caveat, the motion by the respondents to join the Public Trustee as a third party is denied.

[25]	There may, however, be occasion when the Registrar of Land may be joined as a third party in proceedings for removal of a caveat: Reed v Sioa [2002] WSSC 13. But that is not an issue here.

[26]	Costs reserved.

[27]	This matter is adjourned to the civil mention on 23 June 2008 for setting a date to hear the motion for removal of caveat.

CHIEF JUSTICE

Solicitors
Fepuleai & Roma Law Office for applicants
Woodroffe Law Partnership for respondents
Vaai Lawyers for third party