IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE PUBLIC TRUSTEE, 
a statutory body established pursuant to the Public Trust Office Act 1975 
who is the appointed Administrator of the estate of 
AUAFI (aka TAUASA AUAFI ISAKE), Deceased.
Plaintiff

AND:

VINONA UTUOTA MENI FEAGAIMAALII
Domestic Duties, sued on her behalf and on behalf of all members 
of her family occupying the estate land at Matautu in Apia.
Defendant

Counsels:	Ms FM Vaai-Hoglund for the plaintiff
Ms O Woodroffe for the defendant

Hearing:	9 June 2009
Decision:	10 June 2009

DECISION OF NELSON J.

The plaintiff in this case brings an action to evict the defendants and members of her family from certain freehold land situated at Matautu in Apia. The plaintiff is recited in the entitulement to the claim as the Public Trustee as appointed administrator of the estate of Auafi Tauasa, deceased. The lands in question comprise a 1acre piece described as Parcel 88 Flur I, Upolu being all of the land registered in Volume 22 Folio 53 of the Samoa Land Register. The plaintiff alleges in the statement of claim that it is "the registered owner together with a person known as Malaetolu" of the lands. In fact that is far from the case as would be evident to anyone inspecting the registration details contained in Volume 22 Folio 53.

The history of the lands as relevant to these proceedings is as follows: by order dated 18 March 1980, the Land Titles Investigation Commission a body constituted pursuant to the Land and Titles Investigation Act 1966 made the following determinations:

1.	that the land in question is freehold land;
2.	that title to the land is to issue in the names of the heirs of Malaetolu and the heirs of Auafi.

There are two significant features of that determination and they relate to the second determination. Firstly, it states that title is to issue in the names of the heirs of Malaetolu and the heirs of Auafi not in the names of Malaetolu or Auafi. There is plainly a distinction in fact and in law between Auafi and the heirs of Auafi and Malaetolu and the heirs of Malaetolu. The determination was specific, title would issue in the name of the heirs of these respective gentlemen. 

Secondly the determination did not prescribe whether title was to be held by the heirs as joint tenants or as tenants in common in equal or unequal shares or in some other fashion but it would appear on the face of it to be a case of land jointly and equally owned by the heirs of Malaetolu and the heirs of Auafi. Although counsel for the defendants has asked that I note that they have a different view of that matter. A view which need not for the purposes of these proceedings be finally determined today. 

On 21 March 1983 the Lands and Titles Commission Order was registered in the Samoa Land Registry and Volume 22 Folio 53 was accordingly created. That volume and folio records the legal description of the land and shows the registered owners to be "Heirs of Malaetolu and Heirs of Auafi". From that date the respective heirs appear to have resided on the land happily although in view of court proceedings subsequently brought involving the land sometimes unhappily but nothing further happened in respect of the title of the property until 1999. 

On 15 March 1999 the Supreme Court by consent of the heirs of Auafi and the Public Trustee stated to be acting as administrator of the Estate of Malaetolu ordered that the lands be partitioned pursuant to section 140 of the Property Law Act 1952 (NZ) which applies in this country. Section 140 allows the Supreme Court upon application to either order a sale of the land on certain terms and conditions or to order a partitioning of the land. Sale is often ordered in cases where beneficiaries to an estate or estates owning lands cannot agree as to how to divide their entitlements. What then happens is the land is sold at a determined market value and the money is divided amongst the beneficiaries. But there is also power for the court to order instead of that being done that the land be partitioned. For reasons not clear to me the partition order of 15 March 1999 was not registered against the title and it appears no moves were made to enforce that Order or give effect to it. 

What was registered against the title on 29 May 2002 was a transmission of the "undivided half share" of Auafi to the Public Trustee. It is clear from the plaintiffs argument that it brings these proceedings in reliance on that transmission and the powers conferred on the Public Trust Office by that transmission. There seems no dispute that the transmission was validly granted and that the Public Trust Office now acts for the estate of Auafi Tauasa. What is significant is the transmission is in respect of the estate of Auafi Tauasa but the land is not registered to Auafi Tauasa. It is as noted registered to the Heirs of Auafi and if any estates or successors need to be established and probated it would be the estates of those heirs. The same can be said in respect of the ownership of Malaetolu’s side, the land is registered to the Heirs of Malaetolu not to Malaetolu. Both groups of heirs undoubtedly would by now be quite large but all as heirs would have a share in this one acre property.

The next relevant significant event is a second partition application was brought to the Supreme Court. This was done in 2003. According to the court file which I have now located the applicant was the Public Trustee as Administrator of the estate of Auafi Tauasa. The respondent was Penina Savaiinaea of Matautu-uta for and on behalf of the heirs of Malaetolu. Both parties were represented by counsels. In support of the application Penina Savaiinaea swore an affidavit the relevant parts of which read as follows: "that I am acting on behalf of the heirs of Malaetolu; that the heirs of Malaetolu do not oppose an order sub-dividing the land; and that the heirs of Malaetolu however would desire an equitable sub-division of the land". It is further stated in the affidavit that the heirs of Malaetolu proposed that "each party resides on the area of land that they currently occupy". The only reservation is that the single grave of the heirs of Malaetolu that is on the Auafi side should remain.

Based on that affidavit counsels for both sides in that proceeding filed a memorandum to the court. The memorandum is dated 11 November 2003. On the flip side of that memorandum the following order was made by my brother judge: 

"By consent the court orders that the land described in the Motion is to be partitioned equally between the heirs of Auafi and Malaetolu." 

That handwritten minute is dated 4 March 2002 but I am satisfied that given the date of the memorandum the date of that minute is incorrect. In any event an error as to the date does not alter the effect of the order that was made namely to partition these lands equally between the two groups of heirs.

Probably as a consequence of that order, on 7 September 2005 a subdivision plan number 7445 was approved subdividing the land into two equal parts. Parcel 1062 in the west being the area that is said to be occupied by the heirs of Auafi and parcel 1063 in the east the side that is said to be occupied by the heirs of Malaetolu. It is based on this subdivision that the Public Trust has taken steps to convey the land parcel 1062 to the heirs of Auafi and parcel 1063 to the heirs of Malaetolu. 

However the offices attempts to give effect to this subdivision have been thwarted by the defendants who occupy the back portion of parcel 1062 and who refuse to relinquish their possession. The evidence for the plaintiff indicates that this is the part where the grave of one of the senior people of the heirs of Malaetolu is located. The defendants efforts have made the administration of this matter impossible to complete hence the plaintiffs application to the court to evict the defendants from the back part of parcel 1062.

At the conclusion of hearing the evidence for the plaintiff yesterday I queried their final witness from the Public Trust Office as to the basis upon which they seek to evict the defendants when it was clear that the Public Trust Office is not yet registered as proprietors of parcel 1062. In fact the title does not even show the subdivision of the land into two parcels. It shows the land as one complete un-subdivided one acre block owned by the Heirs of Malaetolu and the Heirs of Auafi. It also shows a transmission registered in respect of the Estate of Auafi but this is probably irrelevant since Auafi is not as I have noted the registered owner. The Public Trust officer conceded that technically the suggestion being made by the court was correct.

Plaintiffs counsel has tried to argue that based on the authority of Saleimoa Plantation Ltd v Joe Atoa unreported 15 July 1985 the Public Trustee has sufficient interest in the property to bring these eviction proceedings. But I beg to differ with counsels view, that case has no application here. In that case the plaintiff had a validly executed Deed of Conveyance conveying title to it but registration of the Deed was ineffective for the reasons stated in the decision. Here no such document exists purporting to convey title to the plaintiff as the transmission does not do that. The plaintiff therefore has no equitable interest upon which to base an action in trespass as was the case in those particular proceedings.

Unfortunately technicalities are what the law is all about. The concession by the Public Trustee witness was correctly given because the documents before the court make it clear that the land is registered and co-owned by the Heirs of Malaetolu and the Heirs of Auafi and the documents show that the Public Trustee does not act for either group. They only act for the estate of Auafi. But even if they did act for one of the two groups they cannot bring an action to dispossess a registered co-owner because the registered co-owner in law has equal rights of possession to the whole of the land. Neither group or side has the power to evict the other until such time as the land is divided and their respective divisions transferred to them by appropriate legal documentation. 

For various reasons this has not yet occurred but until that is done they are a bit like an unhappy couple who are married for better or for worse, for richer or for poorer. What has occurred is that the Supreme Court has made an order that the property be partitioned between the two groups and that order was based on the consent of both groups. It was not made by the court itself and was not made only on the application of one group. As I have pointed out from the file it was made on the application of both and was made by consent. That Order remains in full force and effect and steps should now be taken to give effect to it.

Considering the chaotic state of the Public Trustees title to the land he is probably not yet in a position to give effect to that order but I anticipate he can easily do so by becoming the appointed trustee for the Heirs of Auafi. Once that is done he can then take steps to implement the partition order. Such steps can include proceedings for contempt of court against those who hinder the enforcement of the order or who obstruct efforts to give effect to it. But that can only be done once the Public Trust has taken the appropriate legal steps to become the trustee for the Heirs of Auafi. At the present point in time he is not trustee for those heirs and these proceedings cannot succeed for that reason and for the reason that a registered co-owner cannot dispossess the other co-owner.

These proceedings must accordingly be struck out as the Public Trustee has no cause of action against the defendants however well intended their action was. I have considered the question of costs and counsel is to file and submit a memorandum within 14 days as to that issue.

JUSTICE NELSON