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Stowers v Stowers [2012] WSSC 30 (7 May 2012)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINU'U


BETWEEN:


VAOITA STOWERS, Domestic Duties,
ANETI STOWERS, MERCY STOWERS, and PETER STOWERS JUNIOR, her children, all of Fugalei near Apia.
Applicants


AND:


MAKERITA STOWERS, Widow, and ALICE STOWERS.
First Respondents


AND:


PEPE CHRISTIAN FRUEAN
Chief Executive Officer, Vaiala.
Second Respondent


AND:


PUBLIC TRUSTEE
being a corporation sole under section 4 of the Public Trust Office Act 1975.
Third Respondent


Counsel: T R S Toailoa for applicants
L R Schuster for first respondents
J Brunt for second respondent
P A Fepulea'i for third respondent


Hearing: 4 May 2012
Judgment: 7 May 2012


JUDGMENT OF SAPOLU CJ


Introduction


  1. This is a conjoint application by the applicants for extension of time to appeal under r.18 of the Court of Appeal Rules 1961, for leave to appeal under s.54 of the Judicature Ordinance 1961, and for stay of execution under s.58 of the Judicature Ordinance 1961.
  2. At the hearing of the application, there was no opposition from counsel for the first, second, and third respondents to the application for leave to appeal as this appeal qualifies as an appeal as of right in terms of s.51 (a) of the Ordinance. There was opposition to the application for stay of execution in terms of s.58 of the Ordinance. The argument between counsel for the applicants and counsel for the respondents really focused on the application for extension of time to appeal under r.18 of the Rules.
  3. Under r.18, the time limit to appeal a decision of the Supreme Court to the Court of Appeal is 30 days.
  4. A similar conjoint application was also filed by the applicants on 18 August 2011 with the Court of Appeal seeking extension of time to appeal, leave to appeal, and for stay of extension. As it will be explained later, this application to the Court of Appeal resulted in further delay in the hearing of the application before this Court.

Background


  1. This case is concerned with a piece of land of just over a quarter acre situated at Vaimea near Apia. The land was originally owned by one Aleki Toala Afoa who died intestate on 12 July 1948. He was survived by his son Peter Stowers who also died intestate on 12 February 1996 without realising his share under his father's estate.
  2. By way of an election to administer granted on 3 December 1996, the Public Trustee, who is the third respondent in these proceedings, was appointed administrator of the estate of the said Aleki Toala Afoa. Then by order to administer granted on 17 February 2005, the Public Trustee was appointed administrator of the estate of the said Peter Stowers, the son of Aleki Toala. It therefore appears that Peter Stowers only became the legal owner of the land in dispute after he died.
  3. Before Peter Stowers died in 1996, he had married Makerita Stowers, the first-named first respondent, on 30 June 1961. They lived on the disputed land and in 1970 they adopted Alice Stowers, the second-named first respondent. When Peter Stowers and Makerita Stowers separated in or about 1968, Makerita Stowers and Alice Stowers, left the disputed land. However, the marriage of Peter Stowers and Makerita Stowers was never dissolved. It also appears that Alice Stowers was adopted by Peter Stowers and Makerita Stowers after they had separated. This raised doubts at the trial as to when exactly Peter Stowers and Makerita separated.
  4. In 1970, Peter Stowers entered into a de-facto union with Vaoita Stowers, the first-named applicant. There are three children of that union. In 1993, all three children were legally adopted by a couple in New Zealand.
  5. On 12 February 1996, Peter Stowers died inestate without having dissolved his marriage to Makerita Stowers his first wife. Then sometime in 1996 or 1997 after Peter Stowers had died, Makerita Stowers and Alice Stowers returned to the disputed land and lived in the same house as Vaoita Stowers and her children who are the applicants in these proceedings.
  6. During the inquiries carried out by the Public Trustee in the process of administering the estate of Peter Stowers, it was discovered that: (a) Peter Stowers was lawfully married to Makerita Stowers, (b) there was no evidence that that marriage had been dissolved, (c) the union between Peter Stowers and Vaoita Stowers was de facto, (d) all three children from the union of Peter Stowers and Vaoita Stowers had been legally adopted out to a couple in New Zealand, and (e) there was no evidence that the said adoption had been discharged. The Public Trustee therefore decided that Vaoita Stowers and her children have no entitlements under the estate of Peter Stowers and that the rightful beneficiaries of the estate of Peter Stowers are Makerita Stowers and Alice Stowers.
  7. It is clear that the decision of the Public Trustee was based on its understanding of the meaning of s.44 of the Administration Act 1975 regarding succession in the case of an intestacy and the position of an illegitimate child or an adopted child in terms of s.10 of the Infants Ordinance 1961.
  8. Sometime in 2005, the second respondent learnt of the land the subject of the estate of Peter Stowers which was being administered by the Public Trustee. He approached the Public Trustee who identified the first respondents Makerita Stowers and Alice Stowers as the only legitimate surviving heirs of the estate of Peter Stowers. The second respondent then met with the first respondents who had already moved onto the land sometime in 1996 or 1997 and were living on the land with the applicants Vaoita Stowers and her children. Following this meeting between the first respondents and the second respondent, the first respondents advised the Public Trustee of their agreement with the second respondent and that the land be conveyed to the second respondent. Accordingly, the land was conveyed by the Public Trustee to the second respondent by deed of conveyance dated 14 July 2005. This deed was registered on 11 August 2005. The price of the land was $200,000 and the second respondent took out a bank loan of $200,000 to pay for the land. A mortgage was taken out on the land as security for the loan.
  9. By letter dated 7 December 2005, counsel for the second respondent wrote to the applicant Vaoita Stowers giving her and her family one month's notice to vacate the land. When that did not happen, counsel for the second respondent filed a claim against Vaoita Stowers seeking, inter alia, an eviction order and an order for possession of the land. On 10 July 2006, Vaoita Stowers filed a statement of defence and counterclaim. After prolonged attempts to reach an out of Court settlement, the applicants filed a claim against the first respondents seeking compensation for improvements they claim to have made to the land.
  10. The applicants then changed counsel and engaged Mr. Malifa who filed a new claim on 2 March 2009 against the first respondents, second respondent, and the Public Trustee, the third respondent, pleading five separate causes of action. As a result, there were three different statements of claim before the Court – the statement of claim by the second respondent filed on 7 December 2005, the first statement of claim filed by the applicant Vaoita Stowers on 10 July 2006, and the second statement of claim filed by all the applicants on 2 March 2009.
  11. To the statement of claim filed by the applicants on 2 March 2009, all the respondents filed separate statements of defence. The second respondent also filed a counterclaim. To avoid possible confusion, all counsel agreed that the trial proceeded on the basis of the statement of claim filed on 2 March 2009. The trial was held and completed on 2 March 2010. Counsel were then given 21 days to file written submissions. On 14 June 2010, my written judgment was delivered to counsel. In that judgment, the applicants were awarded $15,000 against the first respondents for improvements they claimed to have made to the land and they were also ordered to vacate the land in 6 weeks and to yield up possession of the land to the second respondent.
  12. The applicants failed to comply with the judgment of the Court despite many letters and advices from the second respondent's counsel to vacate the land. On 15 July 2011, the second respondent filed proceedings for civil contempt. On 18 August 2011, present counsel for the applicants filed the present application seeking: (a) an extension of time to appeal, leave to appeal, and stay of execution of my judgment of 14 June 2010.
  13. The time limit of 30 days to appeal a decision of the Supreme Court to the Court of Appeal had expired on 13 or 14 July 2010. This application was filed on 18 August 2011. The delay from 13 or 14 July 2010 when the 30 days time limit expired to the time this application was filed would be just over 13 months.

Application for an extension of time to appeal, leave to appeal, and stay of execution


  1. The grounds of the application for an extension of time to appeal, leave to appeal, and stay of execution are set out not only in the application filed in this Court but also in the application filed in the Court of Appeal. These grounds may be stated as: (a) the delay is excusable, (b) there will be no or little prejudice to the respondents if an extension of time to appeal is granted but serous prejudice would result to the applicants if not, (c) the appeal has good prospects of success, and (d) the public importance of the legal issues involved in the appeal.
  2. The applications before this Court and the Court of Appeal were both filed on 18 August 2011. The applications were called for mention before this Court on 23 August 2011 but were further adjourned for counsel for the applicants to sort out which application he wanted to proceed with – the one before this Court or the one filed in the Court of Appeal. It was not until one of the call-over last month or so that this matter re-appeared and counsel for the first respondents and for the second respondent wanted to know about the true position of this application. They seemed to think that the application before this Court had been abandoned as there was no further action from counsel for the applicants since 23 August 2011. Counsel for the applicants did not appear that day. The matter was then further adjourned to the next call-over. At that call-over, different counsel appeared on behalf of counsel for the applicants. This matter was then further adjourned for hearing the application on 4 May 2012. Thus, from 23 August 2011 to 4 May 2012 when this application was finally heard was another time lapse of just over eight months.
  3. As earlier mentioned, at the hearing of the application, there was no opposition to the application for leave to appeal as the appeal qualifies as an appeal as of right in terms of s.51 (a) of the Judicature Ordinance 1961. There was opposition to the application for stay of execution in terms of the Ordinance. However, the focus of the arguments between counsel for the applicants and counsel for the respondents was on the application for an extension of time to appeal in terms of r.18 of the Court of Appeal Rules 1961.

The approach to an application for extension of time to appeal


  1. The approach by the New Zealand Courts to an application for extension of time to appeal is set out in the decision of the Court of Appeal in My Noodle Ltd v Queenstown – Lakes District Council [2009] NZCA 224 where O'Regan J in delivering the judgment of the Court stated at [19]:

"[19] A number of factors are relevant to a decision as to whether time to appeal should be extended, including the reasons for the delay, the length of the delay, the conduct of the parties, and the extent of any prejudice caused by the delay: New Plymouth District Council v Waitara Leaseholders Associate Incorporate [2007] NZCA 80 at [22]. The overall test, however, is whether granting an extension would 'meet the overall interests of justice': Havanaco Ltd v Stewart [2005] NZCA 158, (2005) 17 PRNZ 622 at [5] (CA)


  1. Further on, the Court of Appeal said in My Noodle Ltd v Queenstown – Lakes District Council [2009] NZCA 224 at [22]:

"[22] It is true that this Court will be reluctant to grant an extension of time where the proposed appeal appears hopeless: Ngati Tahinga & Ngati Karewa Trust v Attorney-General CA 73/02, 26 June 2002 at [3]."


  1. The approach in My Noodle Ltd v Queenstown – Lakes District Council [2009] NZCA 224 was re-stated in Robertson v Gilbert [2010] NZCA 429 at [24] where Hammond J in delivering the judgment of a differently constituted Court of Appeal stated:

[24] As confirmed recently by this Court in My Noodle Ltd v Queenstown – Lakes District Council [2009] NZCA 224 and Barber v Cottle HC Auckland, 20 July 2007, the overarching consideration in determining whether to grant an extension is where the interests of justice lie. This is a long-standing and settled principle. Relevant considerations assisting in that inquiry are the length of the delay, the reasons for the delay, the parties' conduct, the extent of prejudice caused by the delay, and the prospective merits of the appeal. Leave will be declined where the appeal has no legs. But the interests of justice may require that leave be granted, not necessarily simply because the merits appear strong, but where there is insufficient material before the Court to exclude the possibility that there is merit".


  1. Counsel for the applicants relied on the English approach to an application for extension of time to appeal which is very similar to the New Zealand approach. In Norwich and Peterborough Building Society v Steed [1991] 2 AII ER 880 at p.885, Lord Donaldson M R stated:

"Once the time for appealing has elapsed, the respondent who was successful in the Court below is entitled to regard the judgment in his favour as being final. If he is to be deprived of this entitlement, it can only be on the basis of a discretionary balancing exercise, however blameless may be the delay on the part of the would – be appellant. The classic statement of elements of this equation is to be found in the judgment of Griffiths LJ in CM Van Stillevoldt BV v El Carriers Inc [1983] 1 AII ER 699, [1983] 1 WLR 207, which are set out in The Supreme Court Practice 1991 vol 1, para 59/4/4 and are as McCowan LJ has set them out, namely: (1) the length of the delay; (2) the reasons for the delay; (3) the chances of the appeal succeeding if an extension of time is granted; and (4) the degree of prejudice to the respondent if the application is granted".


Discussion


(a) Length of the delay
  1. The length of the delay from 13 or 14 July 2010 when the 30 days time limit to appeal expired to 18 August 2011 when this application for extension of time to appeal was filed was just over 13 months. This is a significant delay.
(b) Reasons for the delay
  1. The reasons given for the delay are that the applicants could not afford the costs of an appeal and they still owe a substantial amount in terms of legal fees to their previous counsel who apparently was not prepared to continue to act for the applicants. It was also submitted that the applicants were ignorant of any time limit. Counsel for the second respondent opposed the reasons for the delay in bringing this application given by the applicants. He pointed out that after the Court's judgment was given on 14 June 2010, many letters and advices were sent and given to the applicants to vacate the land but they did nothing to leave the land. It was not until the second respondent filed a motion for civil contempt on 15 June 2011 that the applicants took steps to appeal the Court's judgment and engaged their present counsel who filed this application for extension of time to appeal on 18 August 2011.
  2. I have to say I find what counsel for the second respondent said more convincing as opposed to the reasons given by the applicants for the delay in bringing this application. The applicants say they could not afford to pay for counsel to bring an appeal. But they must have had that problem from the time of the Court's judgment if not before. Still they did not look for other counsel to act for them on a pro bono basis as their present counsel says he has done. It was only after they were served with the second respondent's motion for contempt that they took steps to find a lawyer who would act for them without a deposit.
  3. Furthermore, ignorance by the applicants of the appeal time limit is not an excuse for the delay.
(c) Conduct of the parties
  1. As earlier mentioned, the applicants filed applications for extension of time before this Court and the Court of Appeal on 18 August 2010. When the application before this Court was called for mention on 23 August 2011, the application before the Court of Appeal was drawn to the attention of this Court. Counsel for the applicants was told to sort out which application the applicants are to proceed with. There was then no further action. It was not until the appeals for the sitting of the Court of Appeal this month (May 2012) were mentioned at a recent call-over that this matter re-surfaced. This was just over eight months after this application was first mentioned on 23 August 2011. Counsel for the first respondents and second respondent said they thought the application had been abandoned.
(d) Merits or prospects of success
  1. Having heard the oral submissions and perused the written submissions by counsel for the applicants regarding the merits of whether the interpretations by this Court of the words "wife" and "issue" in s.44 of the Administration Act 1975 and of s.10 (1) and (2) of the Infants Ordinance 1961 are inconsistent with Article 15 of the Constitution, I am of the view that the points raised by counsel for the applicants are arguable. Likewise, the points raised by counsel for the applicants in relation to the quantum of compensation awarded to the applicants as compensation for the improvements they claim to have made to the land.
  2. In relation to the defence of bona fide purchaser for value without notice raised by the second respondent at the trial, I find the relevant ground of the applicants appeal not to be strong. Counsel for the applicants submitted that the second respondent as a prudent purchaser should have visited the land before he had bought it. If he had done so, his attention would have been drawn to any potential claims by the applicants. By not doing so, the second respondent was careless or closed his eyes to the reality of the situation. This submission is somewhat speculative.
  3. Not only were the applicants living on the land at the relevant time but also the first respondents. In fact they were all living in the same house on the land. The Public Trustee, who was the administrator of the estate of Peter Stowers, had also informed the second respondent that the first respondents were the beneficiaries of that estate. The second respondent was entitled to rely on what he was told by the Public Trustee as the administrator of the estate. The fact that the first respondents were also living on the land would not have aroused any suspicion as to the reliability of what the Public Trustee had told the second respondent. If anything, it lends support to what the Public Trustee had told the second respondent. It is also speculative whether the second respondent's attention would have been drawn to any potential claim by the applicants if he had visited the land before he bought it. It is also not clear whether the second respondent did visit the land before he bought it. Thus, the second respondent was not careless or closed his eyes to the reality of the situation as submitted by counsel for the applicants.
(e) Extent of any prejudice to the respondents caused by the delay
  1. In respect of the second respondent, he had taken out a loan in 2005 to pay for the land and used the land as mortgage security for the loan. The applicants must have been aware at least by October 2005 that the second respondent had purchased the land because they lodged a caveat against the land on 3 October 2005. The applicants withdrew their caveat on 19 July 2006. The second respondent is still paying interest on the loan. After all these years, the second respondent is unlikely to be able to recover his money from the first respondents should the land be taken away from him now.
  2. The solicitor who was acting for the applicants at the material time was also advising the applicants about seeking compensation for their improvements to the land rather than recovery of the land from the second respondent.
  3. I do not see any serious prejudice to the first respondents or the Public Trustee who is the third respondent.
(f) Public importance
  1. One of the matters raised by counsel for the applicants is the public importance of the issues he has raised regarding the constitutionality of s.44 of the Administration Act 1975 and s.10 of the Infants Ordinance 1961. There is no general judicial approval that the public importance of a case is one of the specific considerations which is to be taken into account to the exercise of discretion when determining whether to grant an extension of time to appeal. But I am not prepared in this case, in the absence of adequate submissions from counsel, to express a conclusive view on the matter.
  2. It should also be mentioned that it is not clear whether the constitutionality of s.44 of the Administration Act 1975 was raised or canvassed at the trial. If it was raised, it was not canvassed or elaborated upon otherwise, that issue would have been discussed in my judgment.

Conclusion

  1. Having given careful consideration to the relevant factors to be taken into account in the exercise of my discretion whether to grant an extension of time to appeal in this case, I have come to these conclusions:

Costs

  1. The second respondent is entitled to costs. Counsel for the second respondent to file memorandum as to costs in 10 days if agreement as to costs cannot be reached with counsel for the applicants.

-----------------------------

CHIEF JUSTICE

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