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Milford v Fidow [2008] WSSC 67 (7 August 2008)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

SONNY MULITALO MILFORD
of Alamagoto Apia, Samoa and
97 Rata Street, Inglewood, Taranaki New Zealand.
Plaintiff

AND:

MANUELE TAOUMA FIDOW
of Alamagoto, Apia Samoa.
Defendant

Counsels: LR Schuster for the plaintiff
TK Enari for the defendant

Ruling: 7th August 2008

RULING OF NELSON J.
(on an application for interim injunction)

The principles governing the issue of an interim injunction are well established and flow from the judgment of Lord Diplock in American Cyanamid Co. v Ethicon Ltd. [1975] UKHL 1; [1975] 1 AllER 504 as applied in cases before this court such as Esera v NUS [2003] WSSC 12, Dive & Fly Samoa Ltd v Schmidt [2005} WSSC 40 and Mautofu v Selesele (unreported) 14th January 2008. The approach is to firstly determine whether there is a serious question to be tried and if so whether the balance of convenience favours the grant or refusal of interim relief.

The plaintiff by amended motion dated 1st July 2008 seeks an injunction to stop the defendant from further constructing any additional structures to the tomb of his late wife Mrs Meka Fidow as the tomb is situated on land owned by the plaintiff. The land is described as Parcel 215 a piece just under 2 acres in size situated at Alamagoto in Apia and registered in the Samoa Land Register at Volume 7 Folio 142. The plaintiff further seeks an interim injunction to issue restraining or stopping the defendant from interfering with or in any way obstructing the plaintiff his agents and representatives from exercising lawful rights of ownership over the land. The injunctions are sought until a final determination of the plaintiffs title to the land has been made.

It appears the defendant was granted permission to live on the land by the plaintiffs father Pasia Eddie Milford (also known as Edward Paul Milford) who at that time co-owned the land with the plaintiffs uncle Sonny Milford as tenants in common in equal shares. Subsequently a mortgage was executed by the plaintiffs father and his uncle in favour of the Development Bank of Samoa to secure advances from the bank to the plaintiffs father. The loan became delinquent and the bank as mortgagee exercised its power of sale and sold the land to the plaintiff. This conveyance was duly registered and it is on this conveyance that the plaintiff rests his claim to be the sole legal owner of parcel 215.

The defendant is not directly related to the plaintiff but was married to the plaintiffs first cousin. Presumably because of this the plaintiffs father granted permission for the defendant and his wife to occupy the land. It is not clear at this stage of the proceedings whether they occupied and continue to occupy the whole or only part of the land or how long they have been in such occupation. The defendants wife the plaintiffs cousin has now passed away and was buried on the land without the plaintiffs consent earlier this year which has led to these proceedings. It is also the wish of the plaintiff to develop his land by construction of accommodation units but he is prevented from doing so by the defendants occupation.

A copy of Volume 7 Folio 142 has been produced to the court as an attachment to the defendants supplementary affidavit dated 7th August 2008. There seems no dispute from the plaintiff as to the validity of this extract. The extract shows that the land was originally part of a larger property just under four acres in size registered to Edward Milford Senior and his wife Tasi Milford as tenants in common in equal shares. Subsequently the land was sub-divided into two parcels, parcel 214 and the subject of the present proceedings parcel 215. Parcel 214 was in 1953 conveyed by Edward Milford Senior and Tasi Milford to Sarah Milford and a new title was issued for that piece. The residue being parcel 215 was then in 1972 by Deed of Conveyance No. 2392C purported to be conveyed to the plaintiffs father and the plaintiffs uncle.

The problem with that conveyance is it was executed by only one of the two owners namely Tasi Milford as by that time her husband and co-owner Edward Milford Senior was deceased. How the solicitor who handled that transaction could have made such a gross error is not apparent but the effect of that document in law because a person cannot convey a better title than that held or possessed by him is that the conveyance conveyed not the whole of parcel 215 but only the half share held by Tasi Milford in parcel 215. The situation would be different if letters of administration had been granted in the estate of Edward Milford Senior to his wife Tasi Milford but there is no evidence this was done and there is no reference to such in the relevant Deed of Conveyance. It would appear the estate of Edward Milford Senior has not yet been probated and resolved.

It is this half share conveyed by Tasi Milford that was subsequently mortgaged to the Development Bank of Samoa and later sold to the plaintiff. It is this half share that the plaintiff presently owns as a matter of law, a half share that has not been divided out from parcel 215. He may also be entitled to a share in the other half of parcel 215 by virtue of being a beneficiary in the estate of Edward Milford Senior but I would imagine so does the defendant through his wife who would also have been a beneficiary of the same estate.

That appears to me to be the legal status of the matter. The question then is what to do with the plaintiffs application for an interim injunction in respect of the whole of parcel 215. Clearly his rights only extend to a half share of the parcel, a half share which has yet to be apportioned out of the property. The parties should now seek for that to be done expeditiously and for the Land Register to be corrected accordingly. Until that is done an interim injunction will issue restraining the defendant from further constructing any additional structures to the tomb of his late wife Mrs Meka Fidow as sought by paragraph (a) of the application. As to the relief sought in paragraph (b) since that relates to the entirety of the land that cannot be granted. I will however consider issuing further orders of interim injunction in appropriate terms to facilitate the subdivision out of the plaintiffs half share in the land if that becomes necessary. I leave that to counsel to frame and submit in appropriate terms.

Given the above ruling the motion to strike out the plaintiffs claim is inappropriate as I have no doubt as to the validity of the plaintiffs title in respect of one half of parcel 215. At worst the plaintiff has a strong arguable case that meets the legal requirements for the matter to go to hearing. The Motion is accordingly declined.

The proceedings will be adjourned to the next mention date to set a hearing date if counsels still wish for this to proceed further. As raised with counsel it seems to me a mediated settlement of the competing claims of the parties is probably a far better way of resolving the issues and I do so recommend.

JUSTICE NELSON