SUPREME COURT OF SAMOA
Faataualofa v Faataualofa [2012] WSSC 37  

Case name: Faataualofa v Faataualofa

Citation: [2012] WSSC 37

Decision date: 14 June 2012

Parties: 
Fa’atagā Fa’ataualofa v Ave Fa’ataualofa both of Vaivase, Apia, Samoa

Hearing date(s): 17 February 2012

File number(s): 841/10

Jurisdiction:  Civil

Place of delivery: Mulinu’u

Judge: Chief Justice Sapolu  

On appeal from:

Order:

Representation: 

L R Schuster for applicant and 
A Roma for respondent

Catchwords: 

Words and phrases: “Torrens title system” deeds title system”

Legislation cited:  

Cases cited:
Stowers v Stowers [2010] WSSC 30, paras 45, 46; 
Carter v Ioane [2010] WSSC 14, paras 37-47; 
Meredith v Manoo [2002] WSSC 51, 
Paina v Public Trustee [2001] WSSC 24, 
Vaosa v Attorney General [2000] WSSC 23

Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

Misc 841/10

BETWEEN:

FAATAGA FAATAUALOFA of Vaivase, Apia, Samoa 
Applicant

AND:

AVE FAATAUALOFA of Vaivase, Apia, Samoa

Respondent

Counsel:

L R Schuster for applicant
A Roma for respondent

Hearing:	17 February 2012

Judgment:	14 June 2012

JUDGMENT OF SAPOLU CJ

Proceedings 
1.	These proceedings are concerned with an application by the applicant for orders:
(a)	to declare a gift of land by deed of conveyance dated 24 January 2000 and registered on 9 August 2000 no. 11368C as void;
(b)	to rectify the land register volume 7 folio 142 by cancelling the registration of deed of conveyance 11368C;
(c)	to strike out the respondent’s motion for removal of caveat; and
(d)	for costs.
Background 
2.	The land which is the subject of deed of conveyance 11368C is at Vaivase-tai near Apia.  It belonged to Fa’ataualofa Toa the father of the applicant and the respondent who have different mothers.
3.	Fa’ataualofa Toa had two marriages.  From his first marriage he has eight children of which the eldest is his son the present applicant.  From his second marriage he has three children of which the eldest is his daughter the present respondent.  None of the other children of Fa’a taualofa Toa is involved in these proceedings.
4.	The history of the land shows that it was part of a parcel of land which was the subject of a Crown Grant dated 13 March 1940 issued by the then Governor General of New Zealand on behalf of King George VI of Great Britain to Taei, Apa, Fa’ataualofa Toa, Semisi, Samoan males and Nefunefu, Piliati, Faamafu, Fa’anape Nua, Samoan females all of Moataa as tenants in common in equal shares.  All eight tenants in common were untitled men and women.
5.	A scheme plan dated 12 February 1973 shows that the land was subdivided amongst the eight co-owners as tenants in common including Fa’ataualofa Toa, the father of the applicant and the respondent.  The copy of the scheme plan produced in evidence shows the names of the eight tenants in common and their signatures or the signatures of their representatives.
6.	The scheme plan was recommended for approval on 21 March 1973 by the Director of Lands and was approved by the Minister of Lands.
7.	Following the scheme plan, a sub-divisional survey of the land was carried out in April 1973.  A sub-divisional survey plan 3499 was then prepared on the basis of that survey.  This plan shows the name of the applicant for a sub-divisional survey of the land as Taei Aluni, one of the tenants in common, and the names of the owners as “Taei Aluni and others”.  The plan was approved on 9 May 1973 by the Director of Lands and registered.
8.	Sub-divisional survey plan 3499 shows the sub-division of the land into eight different parcels of unequal areas amongst the eight co-owners as tenants in common.  These are parcels 756, 757, 758, 759, 760, 761, 762, and 763.  Parcel 757 containing an area of 1a.3r.03.7p was allotted to the father of the applicant and the respondent.  
9.	The applicant says in para 15 of his affidavit sworn on 19 August 2011 that each of the eight parcels to which the land had been surveyed and subdivided has been registered in the name of a separate co-owner of the tenancy in common.  This is notwithstanding the absence of any deed conveying each parcel of land to each co-owner from the other co-owners.
10.	In 1989, the father of the applicant and the respondent wanted to subdivide parcel 757 allotted to him and transfer a quarter of an acre to the applicant to be used as mortgage security for a loan.  Parcel 757 was then subdivided into parcels 2278 and 2279.  That subdivision is shown on survey plan 5280. 
11.	Parcel 2279 was then conveyed to the applicant but that conveyance has never been registered.  The explanation for this situation which the applicant said his previous solicitor had given to him was objected to by counsel for the respondent as inadmissible on the ground that it is hearsay because the previous solicitor for the applicant was not called as a witness.  No reason was given as to why the applicant’s previous solicitor was not called to testify.  The objection by counsel for the respondent was upheld.
12.	By deed of conveyance dated 24 January 2000, the father of the applicant and the respondent gifted parcel 2278 being part of parcel 757 to the respondent.  The area of parcel 2278 is 1a.2r.03.7p.  That is one rood or a quarter of an acre less than the total area of parcel 757 shown in plan 3499.  The deed of gift was registered on 9 August 2000 pursuant to the provisions of the Land Registration Act 1992/1993.
13.	The difference between the area of parcel 757 and the area of parcel 2278 is the quarter acre in parcel 2279 that was conveyed to the applicant in 1989 by his father for the mortgage of a loan.  
14.	In 2003, the applicant lodged a caveat against the land.  On 20 December 2010, he commenced these proceedings.
15.	The applicant, at the hearing of these proceedings, said that he is living on the land.  It is, however, not clear whether he is living on parcel 2278 which has been gifted to the respondent or on parcel 2279 which was to be conveyed to him by his father in 1989 to mortgage a loan.  Other members of the family of the applicant and the respondent are also living on the land.  
The use and occupation by the co-owners of the land that was the subject of the tenancy in common
16.	The evidence of the applicant, who was the only witness called in these proceedings, suggests that by the time of the scheme plan in February 1973 and sub-divisional survey plan in April 1973, the co-owners were already using the land granted to them by Crown Grant in 1940.  It would be unrealistic not to expect the co-owners to be using the land between 1940 and 1973 which is a period of about thirty three years.  The land could not have been lying idle for such a lengthy period of time.
17.	The written submissions by counsel for the respondent on one hand and the affidavit and oral evidence of the applicant on the other also show that the co-owners agreed on how the land was to be subdivided amongst themselves.  Such an agreement is reflected from sub-divisional survey plan 3499.  There is also no evidence of any dispute amongst the co-owners in relation to the subdivision after the land was subdivided.
18.	The evidence of the applicant also shows that after the scheme plan and the sub-divisional survey plan, each co-owner and his or her family used and/or occupied the parcel of land allotted to him or her in terms of the subdivision without objection from the other co-owners.  Such situation remains up to now.  Evidently, each co-owner understood the parcel of land allotted to him or her in the plans as his or her land so that he or she can do anything with it.  This is confirmed by the fact that since 1976 some of the co-owners have been using their parcels of land as mortgage security for loans, as it appears from the land register.  The parcel of land allotted to the co-owner Apa has also been subdivided amongst the members of that co-owner’s family.  Fa’ataualofa Toa, the father of the applicant and the respondent, had also subdivided a quarter acre from his parcel of land in 1989 as mortgage security for a loan by the applicant and in 2000 he gifted the balance of his parcel of land to the respondent.
19.	All the co-owners of the tenancy in common, including the father of the applicant and the respondent, have passed on.
The law that is generally relevant to the issues
20.	At the time the tenancy in common in this case was subdivided amongst the co-owners in 1973, and the father of the applicant and the respondent gifted the major part of his share of the land to the respondent in 2000, Samoa was operating under the deeds system of registration established under the Samoa Land Registration Order 1920 (NZ) and re-enacted under the provisions of the Land Registration Act 1992/1993.  Our system of land registration has since been changed under the Land Titles Registration Act 2008 to the Torrens system.  
21.	It is well established that land held in co-ownership as a joint tenancy or tenancy in common can be subdivided by the co-owners by agreement amongst themselves.  This process has been described as partition by agreement:  Halsbury’s Laws of England 3rd ed, vol 32, para 547, or voluntary partition:  Butterworth’s Land Law in New Zealand (1997) by Hinde, McMorland and Sim para 9.048.  For land under the deeds system, partition would be complete by the execution of a deed of partition or by the execution of separate conveyances to each of the tenants in common of his or her share in the land by the other tenants in common:   Halsbury’s Laws of England (supra), para 550.  For land under the Torrens system, partition would have to be effected by registration of a memorandum of transfer:  Butterworth’s Land Law in New Zealand (supra) para 9.048.  Once the partition is complete, the joint tenancy or tenancy in common is determined.  Each co-owner becomes the individual owner of his or her share of the land.
22.	I turn now to the issues in this case.
First issue:  Was the partition of the tenancy in common by the co-owners complete
23.	It is clear from the evidence in this case that the co-owners of the land as tenants in common agreed amongst themselves to subdivide the land in unequal shares and had the land surveyed and subdivided in 1973 into eight different parcels on the basis of that agreement.  Each parcel was allotted to a separate co-owner.  The sub-divisional survey plan was subsequently approved by the Minister of Lands and registered.
24.	Evidently, no deed of partition was executed by the co-owners for partitioning the tenancy in common in terms of their agreement on how the land was to be subdivided amongst themselves.  No separate deeds of conveyance were also executed for the transfer to each co-owner of his or her share of the land from the other co-owners.  As a result, the partition of the tenancy in common was incomplete:  Halsbury’s Laws of England 3rd ed, vol 32, para 547.  In other words the tenancy in common was not properly determined and the allotment of parcel 757 to the father of the applicant and the respondent was ineffective.
Second issue:  Was the deed of conveyance to the respondent from her father void
25.	Counsel for the applicant argued that under the deeds system of registration which applies to this case, if there is a defect in a deed so as to affect the validity of the deed and make it void, that defect will carry through to successive deeds relating to the same land so that those deeds would also be void.  It follows that as there was no deed of conveyance transferring parcel 757 from the other co-owners to the applicant’s father, there was no complete transfer of parcel 757 to the applicant’s father.  The applicant’s father therefore had no valid title to parcel 757.  In consequence, the gift of a major portion of parcel 757 by the applicant’s father to the respondent must be void.
26.	Counsel for the respondent on the other hand argued that s.16 of the repealed Land Registration Act 1992/1993 (which re-enacted s.8 of the Samoa Land Registration Ordinance 1920 (NZ)) provided that no instrument of title should affect the legal title to land until registered and, therefore, the registration of the deed of conveyance gifting the land in question to the respondent from her father vested a legal title in the respondent.  Section 16 provided:
“No instrument of title shall in any manner affect the legal title to land until and unless such instrument is registered in the Land Register in accordance with this Act”
27.	The effect of the argument by counsel for the respondent seems to be that notwithstanding any prior defect in title to the land in question, the registration of the deed of gift to the respondent from her father had cured such defect and conferred a good title on the respondent.  With respect, I cannot agree with this argument.
28.	In Vaosa v Attorney General [2000] WSSC 23, Wilson J pointed out that the system of land registration which was then in existence in Samoa under the Land Registration Act 1992/1993 was the deeds system and not the Torrens system. His Honour explained the deeds system of registration by saying: 
“The Torrens title system is frequently compared with the registration of deeds system.  statutes have set up such registration of deeds systems.  The registration of deeds and instruments under those statutes does not, of itself, affect the passing of title to any estate or interest in land, nor does it add any efficacy to the registered instrument, so far as it operates as an instrument of conveyance.  The primary purpose of the establishment of registers is, of course, to constitute a public record of deeds and instruments affecting land…  It is the execution and delivery of the deed which affects the conveyance or creation of an estate or interest in land.  Its registration affects its priority, but adds nothing to its validity or to its operation.  The register in which its registration is affected is a register of deeds and instruments, not a register of titles”
29.	In Paina v Public Trustee [2001] WSSC 24, Vaai J in following Vaosa v Attorney General [2000] WSSC 23 said:
“Title therefore depends upon the instrument itself, not upon registration, so that registration had no effect on the validity of an instrument.  It follows therefore that a void deed remains ineffective even though it has been registered”
30.	In Land Law in New Zealand (2003) by Hinde, McMorland and Sim vol 1, para 7.027, the learned authors state:
“The object of the Deeds system was simply to provide a record of the instruments which affected the title to land: it was a system of registration of instruments, not a system of registration of title.  On any sale of land under the Deeds system, it was the execution and delivery of the deed of conveyance which vested the vendor’s estate in the purchaser, not the registration of the deed.  Therefore title to Deeds system land depended upon the instruments themselves, not upon registration; and, except in so far as it affected priorities, registration under the Deeds system had no effect on the validity of an instrument. A void deed remained ineffective notwithstanding registration.  No person could confer a better title than he or she had, so that if one of the deeds was invalid, the title was impeachable however many subsequent conveyances or other dealings had been made”.
31.	The effect of registration under the Deeds system on priorities is explained in Land Law in New Zealand (supra), para 7.028, where it is stated:
“Although registration under the Deeds Registration Act 1908 was neither compulsory nor necessary in order to confer title, the provisions of the Act relating to priorities provided a powerful inducement to register.  A later deed could gain priority over an earlier one if the later deed was registered first.  Registration, however, was of no avail against express notice”.
32.	The one exception to the rule that no person can confer a better title than he or she had is that of a bona fide purchaser of a legal estate for valuable consideration without notice:  see Pilcher v Rawlins (1872) LR 7 Ch App 259 which has been applied by this Court in Stowers v Stowers [2010] WSSC 30, paras 45, 46; Carter v Ioane [2010] WSSC 14, paras 37-47; Meredith v Manoo [2002] WSSC 51.
33.	Counsel for the respondent relied on s.16 of the repealed Land Registration Act 1992/1993which provided that no instrument of title should affect the legal title to land until registered and submitted that the registration of the deed of conveyance gifting the land in question to the respondent from her father vested a legal title in the respondent.  On the basis of the authorities cited, this submission cannot be sustained. The deeds system of registration is a system of registration of instruments relating to land which would include a deed of conveyance; it is not a system of registration of titles.  The title to land depended upon the instruments, not upon registration which had no effect on the validity of an instrument.  A deed which is void remains ineffective despite registration:  Land Law in New Zealand (supra), para 7.027.
34.	Section 16 of the Act did not alter the fundamental principle of the deeds system that title to land depended upon the instruments of title, not upon registration which had no effect on the validity of an instrument.  A void instrument is still void. Registration in terms of s.16 was not intended to convert what is void into a valid instrument.  The effect of s.16 would appear to be that no instrument, even if it is valid, could affect title to land until it is registered.  In this way, it compelled registration of instruments of title so that the register became a public record of instruments which affected title to land.  To this extent, s.16 modified the deeds system.
35.	From what has been said, the partition of the tenancy in common in this case was incomplete and ineffective as it was not done by deed of partition or by the execution of a separate deed of conveyance transferring to the applicant’s father his share of the land.  It follows that the deed of conveyance gifting part of parcel 757 from the applicant’s father to the respondent would be void.  The registration of the deed in terms of s.16 of the Land Registration Act 1992/1993 did not cure the defect in the deed to make it valid.  I therefore declare the said deed of conveyance void.
36.	The result I have reached is unfortunate to the respondent.  It highlights the principal disadvantage and defect of the deeds system of registration. We now have the Torrens system of registration introduced by the Land Titles Registration Act 2008 which is a system of title by registration.
Third issue:  Applicant’s motion to strike out the respondent’s motion for removal of caveat
37.	The applicant in his application seeks to strike out the respondent’s motion for removal of caveat.  However, this issue was not really addressed in the submissions of both counsel.  I have therefore decided not to say anything about it.  If counsel wish to argue this issue then they may apply in fourteen (14) days for its re-instatement.  
Conclusions 
38.	(a)	  deed of conveyance no. 11368C dated 9 August 2000 is declared void;
(b)	land register volume 7 folio 142 is cancelled;
(c)	counsel to apply within fourteen (14) days for re-instatement of the applicant’s application to strike out the respondent’s motion for removal of caveat if they wish to do so.
39.	Counsel to file submissions as to costs in fourteen (14) days.

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CHIEF JUSTICE