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Simati v Simati [2012] WSSC 23 (23 March 2012)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

CP.100/10

BETWEEN:

FAAMOE SIMATI AND FALEUPOLU FAAMOE, Retired of Siusega.
Plaintiff

AND:

SIONE UILI FAAMOE SIMATI, of Siusega.
Defendant

Counsels: Ms R V Papalii on behalf of Mr T S Toailoa for plaintiffs
Ms L Tamati for defendant

Hearing: 13 September 2011
Submissions: 24 February 2012
Decision: 23 March 2012

ORAL DECISION OF NELSON J

[1] The circumstances of this case are somewhat tragic because it involves a family who have been unable to resolve their problems and elected to come to court in an effort to do so. More often than not that does more harm than good and results in regrettable things being said in a public forum, things that can never be taken back. It is pertinent to remind ourselves of that wise old Samoan saying "e pala le maa ae le pala le tala."

[2] Case concerns a quarter acre parcel of land at Siusega near Apia, purchased by the plaintiffs in 1986 when they were then living in Fagamalo, Savaii. According to the testimony of the plaintiffs eldest son the purchase was financed by him from the United States of America where he had been working since leaving home in 1980. The land was bought for his parents. The property was a vacant one but when the parents emigrated to New Zealand, the defendant who is the third son of the plaintiffs cleared the land moved onto it and built a house thereon. The house was not an extravagant structure but was obviously sufficient to accommodate the defendant and his immediate family and to house the plaintiffs when they visited Samoa from time to time which they did a number of times over the years.

[3] During their visit in 2005 for a family faalavelave the plaintiffs say they were tricked into signing over the land to the defendant. The plaintiffs are an elderly couple and only the 80 year old wife gave evidence. She said her husband has been sick since 1989 and is no longer able to travel. Further that his mind is in a poor condition and he is incapable of recognizing even his own family. She said neither of them were able to read English and during the 2005 visit they were taken to an office by the defendant and told to sign certain papers. They did not understand what these papers were and when she questioned the lady who brought the papers the lady instructed her to just sign. The documents were not explained to them by the defendant or the lady in question or by anyone else. Copies of the documents were given to them by the defendant. When they returned to New Zealand they showed them to their children and they were surprised to learn that the documents were a conveyance of the land to the defendant. They now seek to reverse the transaction claiming that they did not agree to such a transfer neither were they aware of what they were signing.

[4] The defendants evidence is different. He said the plaintiffs agreed to transfer the land because he was the only son left in Samoa. All his siblings have emigrated and settled overseas and are citizens of their various countries. He however stayed and has taken care of the familys interests in this country and was the resident family matai attending to all the usual family duties and responsibilities. He said the plaintiffs were interviewed by the lady lawyer who handled the transaction. And they indicated to her their consent whereupon the conveyance documents were executed by them in front of the lawyer. The defendant conceded the transfer had not been discussed with the brother who had paid for the land or it seems with any of his other brothers and sisters who were surprised to learn of the transaction. One of the sisters namely the "uii" (youngest) of the family travelled to Samoa and gave that evidence to the court. She also said her father at the time was very slow and sick and would have been unable to understand what he was signing.

[5] I have great doubt about the veracity of the plaintiff wife evidence. She did not appear to me even now at 80 years of age to be senile or stupid. She also according to her evidence played a significant role in replacing the defendants original house with a new one in 2008 as per her request. She said that construction was paid for by all the children living overseas and that no money was contributed by the defendant. But that is not true. Documents produced before the court showed that in 2008 the defendant obtained a $10,000 loan from the Housing Corporation on the security of the property to complete the building of the house. The mother said it was for a car and had nothing to do with the house. But there is no evidence to support that and no security was ever taken by the Housing Corporation over any vehicle. The documents showed the loan was paid off by the defendant alone and the evidence further established to my satisfaction that materials from his original house were salvaged and used in the building of the new structure. The defendant said in his testimony that the loan was necessary because the eldest brother left before the house was fully completed.

[6] It is true that the defendant should possibly have consulted his siblings before this transaction was effected. But this is the responsibility of the plaintiffs as parents and they obviously chose not to do so. And I note no attempt was made to hide the transaction. The mothers evidence was the defendant gave them copies of the documents to take back to New Zealand. It is also clear that while the mother got on well with the defendants first wife she avidly dislikes his current partner whom he began living with after 2005 when these documents were executed. Her words were that she had no wish to look upon the womans face till the day she dies and she blames the current partner for breaking up the family. She said the lady in question is "fiapule" (bossy) over everything including the land and house involved in these proceedings. Clearly this is a witness severely affected by her vitriol towards the defendants current partner which is motive enough for her to attempt to distort what really happened.

[7] I also do not believe that in 2005 the plaintiff husband was as sick as the plaintiffs make him out to be. He was certainly well enough to travel to Samoa to attend the family faalavelave and no medical or other evidence has been placed before the court supporting the plaintiffs claim of infirmity of mind or body.

[8] The dagger to the heart of the plaintiffs case was the final witness heard, a witness for the defence. He was a retired Ministry of Natural Resources and Environment employee and the plaintiff mother is his fathers sisters daughter. In other words he is a first cousin of the plaintiff mother. His evidence was that in 2005 the mother contacted him and asked for his help to effect transfer of the land to the defendant. He agreed and contacted the Ministry of Natural Resources and Environment lawyer at the time Ms Theresa Potoi Vaai who now lives overseas. He saw the plaintiffs at the office that day and referred them to Ms Potoi Vaai. After matters were completed the couple returned and thanked him for his help. This directly contradicts the plaintiff mothers evidence. And the witness confirmed that he had been reluctant to come to court and become involved in this matter because of his relationship to the parties. In fact he had to be subpoena in order to attend. I am satisfied this witness is not only independent of the transaction but is also truthful.

[9] The plaintiffs claim must fail. I am not satisfied they were tricked, coerced or conned into signing over the property to the defendant. It is not the courts business to determine whether it was immoral, unfair or unjust to transfer the land to the defendant without any share to either the original purchasing brother or other siblings. Once a gift is perfected, in equity that is the end of the matter. A subsequent change of mind cannot undo what has validly been done. I apply the words of the learned Chief Justice in Ah Far v Ah Far [2003] WSSC 1 where he said;

"On the evidence that I accept, the mother, before she had a change of heart, had done everything which was necessary for her to have done to effect a transfer of the legal title to her land to the defendant so that the gift was complete in equity. That involved in this case the mother instructing the lawyer to prepare the deed of gift conveying the land to the defendant, having the deed executed and the lawyer giving the deed to the defendant after it was registered. Once the gift was complete in equity, it was beyond recall by the mother as donor; the equitable estate or interest in the gift had passed to the defendant as donee. It is not for the court to say whether a validly completed gift is fair or unfair, just or unjust, foolish or otherwise. The court does not have such jurisdiction. The deed was registered so that legal title to the land became vested in the defendant before the mother had a change of heart."

Words that apply very much to the case at hand.

[10] I also have no reason to doubt Ms Potoi would have properly discharged her duty as witnessing counsel in this matter and explained to the obviously elderly plaintiffs what they were signing. And that if there was any doubt in her mind she would have taken a different course of action. The defendant confirmed as much in his evidence to the court.

[11] The plaintiffs claim must be dismissed. The defendant is entitled to costs but since an award would be against his parents he would be well advised to forego such a claim. If however he is still wishes to pursue the matter it can be referred back to me failing agreement on quantum by counsel.

...............................
JUSTICE NELSON