SUPREME COURT OF SAMOA
Wilson v Wilson [2012] WSSC 47

Case name: Wilson v Wilson
Citation: [2012] WSSC 47
Decision date: 29 June 2012
Parties: 	
Maiava Peteru for plaintiff
Ruby Drake for defendant 
Henry Hoglund-Vaai for third party
Hearing date(s): 10 February 2012
File number(s): 
Jurisdiction: Civil
Place of delivery: Mulinuu
Judge(s): Justice Vaai
On appeal from:
Order:
(1)	The defendant, his family and relatives are ordered to vacate parcel 639 within 3 months.
(2)	The plaintiffs claim for damages and compensation have not been substantiated or pursued and are dismissed.
(3)	Both the plaintiff and the third party are entitled to costs which if not agreed upon, memorandum for costs are to be filed within 21 days.
Representation: 
Maiava Peteru for plaintiff
Ruby Drake for defendant 
Henry Hoglund-Vaai for third party
Catchwords: testatrix  
Words and phrases:
Legislation cited: Decision by Bathgate in 1987 
Cases cited: 
Reed v Matailiga (2005) WSSC 1 (19/1/05) 
Shiels v Blakeley (1986) 2 NZLR 262 at 268, 
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO.

BETWEEN:

TUIPOLOA FILI WILSON of Moataa, Retired for and behalf of all the beneficiaries of the Estate of FAANUNU WILSON
Plaintiff

LOMIGA WILSON of Moataa, Samoa
Defendant

THE PUBLIC TRUSTEE as the Executor of the Estate of ELLEN WILSON
Third Party

Counsel:	
Maiava Peteru for plaintiff
Ruby Drake for defendant 
Henry Hoglund-Vaai for third party

Hearing:	10 February 2012
Decision:	29 June 2012

DECISION OF THE COURT

Introduction
1.	This action relates to a claim arising from the distribution of certain land of the late Ellen Wilson (the testatrix) of Moataa under her last will (the will) dated the 5th August 1922.  The land comprising of about 8 acres and 29 perches was left as follows:
(i)	Of my property in Gautavai in Moataa called Vailoa I give to my daughter Luisa and her children Rubi and Eleni as tenants in common all that piece of land starting from the main road and running inland to a mango tree standing near a cattle-fence on the western side of where the Wesleyan teacher lived and I give to the family of Faanunu all that piece of land previously occupied by Apolo and Faanunu and bounded on the eastern side by the piece given to Luisa and her two children Rubi and Eleni and I give to Lomiga, Pagia and Tu the remaining piece of land of the said land lying towards the sea to be divided between them in equal portions so that the eastern portion will got o Lomiga, the western portion to Tu and the centre portion to Pagia.
(ii)	I give to James Eli Curry of Apia, Motor Engineer all that piece of land at Moataa formerly occupied by Sione and Itagia being on the eastern side of the right of way from the government road and bounded on the beach side by the ditch.
(iii)	I give to Toumalama all that piece of land at Moataa lying towards the beach from the piece given to James Eli Curry as far as the Mosooi tree.”
2.	The testatrix died on the 8th August 1922.
3.	The two executors appointed under the will did not apply for probate of the will.  On the 25th February 1926 the court appointed the third party as sole executor and trustee of the will in the place of the two executors.  But the third party, for 32 years, ignored to apply for probate of the will until July 1958.  The third party then instructed the surveyor Mr Hunter in August 1958 to value the land and to make a plan of subdivision in accordance with the will.
4.	When the surveyor went onto the land, some 36 years after the death of the testatrix, the mango tree, fence, house of the Wesleyan teacher and other physical features named in the will to define the boundaries of the several parcels devised by the testatrix have vanished.
5.	Scheme plan 104 was prepared in August 1964 by the surveyor identifying the total land of the testatrix, it also purportedly divided the land into lots earmarked for each beneficiary as directed under the will.   That plan was approved by the third party.
6.	Once approved by the appropriate authorities, the scheme plan was followed by a survey plan.  Each lot allocated to every beneficiary in the scheme plan was required to be surveyed.  Upon the approval of the survey plan the separate lots in the scheme plan became known as parcels and given a different parcel number from that on the scheme plan.  Following the approval of the scheme and survey plans the third party allocated the land parcels as follows:
Beneficiary	Lot No.	Parcel	Area	
Luisa, Ruby, Helen	1	514	2a.3r.02p	
Tu	2	532	3r.39.55p	
Pagia 	3	533	3r.39.55p	
Lomiga 	4	534	3r.39.55p	
Faanunu 	5	639	3r.39.55p	
Tomalama 	6	603	2r.17p	
James Curry	7	515	1r.09.8p	
7.	Parcel 514 was subdivided into 3 separate parcels, numbered 528, 529 and 530 to effect the separate shares of the three beneficiaries Luisa, Ruby and Helen.
8.	The access road consumed over half acre of the land.
9.	On the 25th August 1964 the third party wrote to the beneficiaries who were still alive, as well as to the heirs of the deceased beneficiaries that the administration of the estate had been completed, the scheme plan of the subdivision had been prepared in accordance with the will, the areas of land each beneficiary was entitled to and the assessment of their respective entitlement.  The survey of each beneficiaries land parcel will commence upon payment of the assessed amounts.  
10.	The beneficiaries who were still alive in August 1964 were Pagia who was allocated lot 3, Toamalama who was allocated lot 6, and Helen and Ruby, who together with their mother Luisa were allocated lot 1.
11.	Except for parcels 528, 532 and 534 the rest of the allocated parcels have been surveyed and conveyed to the designated beneficiaries or their heirs.  Parcel 533 which was conveyed to Pagia has since been sold.
The Dispute
12.	The current dispute is between the heirs of Lomiga who was allocated parcel 534 and the heirs of Faanunu the registered owner of parcel 639.
13.	The plaintiff alleges that the defendant moved from parcel 534 and constructed houses on parcel 639 in 1995 and refused to dismantle and vacate parcel 639 despite requests by the plaintiffs and by the third party.
14.	The defendant on the other hand said he lived on parcel 639 since 1984, the part of parcel 639 he is occupying was bequeathed to his father by the testatrix and the survey conducted by the third party was not in accordance with the will.
15.	The defendant in particular refused to accept the accuracy of scheme plan 104 because he says the subdivision failed to follow the physical boundaries set out in the will.  If the position of the mango tree, the cattle-fence and the house of the Wesleyan teacher described in the will were correctly identified he would be entitled to the part of the land where his house is currently erected but which was incorrectly included in parcel 639.
16.	This action is a second claim to be dealt with by this court concerning the accuracy of scheme plan 104.  The first hearing was dealt with by Bathgate J and it concerned the challenge by the children of Luisa who together with her two daughters Eleni and Rubi were allocated parcel 514 which was subsequently sub-divided to parcels 528, 529 and 530.  They claimed interalia that the third party as the executor of the will of the testatrix failed and refused to administer the testatrix’s estate in accordance with the will, the third party approved scheme plan 104 on behalf of Luisa’s estate without consulting her children, and they are also entitled to a greater area of the land but have suffered loss because other parcels of land have been given more land than what they were entitled to under the will.
17.	The action was heard by Bathgate in 1987 and he delivered judgment on 20th July 1987.  It is convenient to refer now to the judgment of Bathgate before dealing with the issues in this action.

The 1987 decision
18.	Bathgate noted in his judgment at page 10 that Lowe J before whom the case was scheduled to be heard adjourned the hearing with a direction:
“that the parties should agree to instruct a suitable person as a referee and for that person to conduct an enquiry … or some such similar procedure, for that person or referee to ascertain the proper boundaries for the subdivision of the land according to the will.”
19.	That enquiry was undertaken by Mr E. Jessop who testified in the 1987 trial.  He produced plans and a report at the trial.  Part of his report reads:
“The position of the mango tree, mosooi tree, right of way, ditch could not be mathematically calculated from the description in the will.  Therefore the sitings of boundaries between the various benefactors could not accurately determine until the trees, right of way and ditch referred to in the will are correctly located.”
Mr Jessop was of the view that the surveyor in 1964 would be in a better position to find the remnants of the features of the 1922 will rather than he was.
20.	As Bathgate J was asked to determine the accuracy of the boundaries between the various lots of land he was required to be satisfied that the physical features described in the will such as the mango tree, the residence of the Wesleyan teacher, the fence and others were accurately identified.
21.	Helen Whitton the beneficiary who was allocated parcel 514 jointly with her sister and mother was the only witness called to challenge the accuracy of the distribution.  She identified on a plan the situations of the physical features in the will.  She told the court that she knew the mango tree in the will but it disappeared when she visited in 1963 or 1964.  Both the cattle fence and the remnants of the house of the Wesleyan teacher have also disappeared. 
22.	With the consent of counsels Bathgate J, the witness Helen and the two counsels visited the land for Helen to illustrate her evidence and to point to the judge the various features or where they had been mentioned in the will.
23.	In relation to the position of the mango tree Bathgate concluded at page 12:
“I think the tree shown in scheme plan 104 which Helen acknowledged as a mango tree to be a far more likely site of the mango tree mentioned in the will, than the mango tree mentioned by Helen to the west of the land.  The surveyor’s tree is more aptly described as to the west of where the Wesleyan teacher lived.  In any event, Helen has not proved on a balance of probability where the mango tree mentioned in the will was situated.  She has given various positions with considerable diversity of its site in the circumstances.” 
24.	In relation to parcel 639, Bathgate J after discussing the references in the will, the position of parcel 514 and the physical features said at page 13:
“However I think it is clear from the reference in the will that the land to go to Faanunu’s family was bounded on the east, rather than the north, beach or seaward side, or the south, or inland side, and that the land given to Luisa, Ruby and Helen obviously did not extend right across the land from east to west.
It may be that to give effect to the intention of the testatrix, from the whole of clause 1, and having regard to the surrounding circumstances, in which both the surveyor and Helen put Fa’anunu’s land on the western side of the land, “eastern” should be read as “western” in the phrase of clause 1 that reads:
“bounded on the eastern side by the piece given to Louisa and her two children Rubi and Eleni.”

Challenge by the defendants
25.	Helen Maualaivao testified for the defendant to challenge the accuracy of the boundaries of parcel 639 allocated to Faanunu the mother of the plaintiff.
26.	Helen and the defendant are the children of Lomiga who was allocated parcel 534.  Helen was born in 1941.  Her father died in 1944 when she was three years old.  She lived on the land before she left for New Zealand in 1961, returned briefly in 1978, returned again in 1979 and stayed till 1989.
27.	She told the court, there were nine graves a short distance from the site of the mango tree in the will.  She was told by her mother where the mango tree stood and that the mango tree was burned down by her aunt.  She said at paragraph 4 of her affidavit:
“That when I was growing up on the land, there were nine graves a short distance from the site of the mango tree mentioned in my grandmother’s will; growing up among these graves were mango shoots.  The graves were not concreted but covered with stones so the mango shoots were able to sprout up among the stones.  When I asked my aunt Luisa’s son Taisau (who was much older than I) and my mother why these mango shoots were sprouting up among the graves, they both said that these shoots were from the large old mango tree that my aunt Luisa had burned down.  That I used to go and weed out the mango shoots from among the graves but each time I did that, I would find new shoots when I went back later.
“The thing that I remember about these mango shoots was that there were no mango seeds from which the shoots sprouted; when I pulled out a mango shoot, it had a long root which appeared to be endless giving the impression that these mango shoots originated from one source.
28.	In relation to the positioning of the house of the Wesleyan teacher she stated at paragraph 5 of her affidavit:
“That in those days, my aunt Luisa would instruct my brothers Taligalu and Lomiga to go and cut down the Latana bushes where we now have Lomiga’s house.  When the bushes were cut down, I saw among the weeds many broken earthenware plates, cups and saucers.  When I asked my aunt Luisa about these, her reply was that that was where the “Wesleyan teacher” lived.  My understanding was that these broken crockery belonged to this person referred to as the “Wesleyan teacher” who had lived on that part of the land.”
29.	She conceded under cross examination that when the land was sub-divided her mother and family were living on what is now parcel 534.
30.	She also said under cross examination that before she left for New Zealand in 1961, her mother showed her the peg which separated the boys land towards the sea from the girls land towards the main road.
31.	She also conceded she only read the will in 1983 when she visited the office of the third party.
32.	Va Wilson, the wife of the defendant also testified and told the court she and the defendant moved onto the land in 1979 and lived with the defendant’s mother on the land allocated by the third party.  They moved onto parcel 639 when the plaintiff’s brother Kalauta who lived there left.
33.	Helen told the court they moved onto parcel 639 in 1984 when she saw Helen Whitton assaulting Kalauta.  She then thought to herself Helen Whitton and Kalauta were fighting over her father’s share.  She was also saddened that by placing her father’s share next to the mangroves, they (whoever they means) were treating her father as a friend but not as a son.
Discussion of Defendant’s Evidence
34.	The defendant invites the court to pronounce judgment to contradict the decision of Bathgate J delivered in 1987 which depicted the approximate position of the mango tree, the fence and residence of the Wesleyan teacher.
35.	The defendant rely on the hearsay evidence of its key witness Helen Maualaivao, which evidence is also very unreliable for a number of reasons:
(a)	From the time the scheme plan was approved and the beneficiaries informed by letter in 1965 of their entitlements to the land and shares of the costs, the defendant’s families have been living on parcel 538 until they moved to parcel 639 when parcel 639 vacated by Kalauta the brother of the plaintiff.
(b)	The defendant’s family did pay their share of the costs of administration to the third party amounting to twenty pounds sterling and eight shillings as of the 3rd May 1965.
(c)	Helen’s testimony concerning the peg, shown to her by her mother which divides the boy’s land from the girl’s land, cannot, as counsel for the third party, submitted, be correct as the scheme plan was not prepared until 1964 and the survey plan much later after 1964.  Pegs only, exist when the land is actually surveyed.
(d)	Under cross examination by counsel for the third party, she repeatedly said the whole plan is wrong through the use of the mango tree which was in the will.  It was for that reason that they have not taken steps to register the parcel allocated to their father as it was their wish to challenge the scheme plan.  Instead of challenging the scheme plan and the subsequent survey plan, the defendant and his family forcibly invited themselves onto parcel 639.  They have used the plaintiff’s claim for their eviction to lodge their challenge to plan 104.  They have lodged their challenge through the back door some 59 years after they were informed by letter from the third party in 1965 of the scheme plan and their share of the administration costs.
(e)	They have never fronted up with a German plan which they resorted to when confronted by the plaintiff and the third party. 
(f)	If there was a peg on the land which separated the boys lands from the girls, the testatrix would have simply referred to the peg rather than making references to physical features such as the mango tree.
Res Judicata
36.	Both the plaintiff and the third party raised the doctrine of res judicata to estop the defendant from challenging the accuracy of plan 104 and in particular the area and position of parcels 639 and 538.
37.	All three counsels adequately addressed the principles of issue estoppel, citing in support the decision of Sapolu in Reed v Matailiga (2005) WSSC 1 (19/1/05) which discussed cause of action stoppel and issue estoppel.
38.	All counsels agree that there are three requirements for the plea of issue estoppels to succeed:
(a)	The matter must have been directly at issue in the previous proceedings and the relevant determinations must be the ones which are fundamental to the earlier determination and without which it cannot stand.
(b)	the judicial decision has been pronounced by a judicial tribunal of competent jurisdiction; and
(c)	that the parties to the judicial decision in previous proceedings or their privies were the same persons as the parties to the subsequent proceedings or their privies.
39.	It is the third requirement which the defendant contested.  The defendant submitted that the plaintiff and the defendant were neither parties nor privies to the 1987 decision.
Discussion
40.	It is true the plaintiff and the defendant were not parties to the 1987 dispute which was a claim by some of the beneficiaries of the estate against the third party.
41.	In the present case the plaintiff’s claim was against the defendant for trespass.  In response to the plaintiff’s claim the defendant sought to join the third party claiming against the third party:
(a)	that the defendant is entitled to the rectification of the survey of the land devised to the defendant’s father, Lomiga Wilson, pursuant to the will of Ellen Wilson deceased.
(b)	that the issue to be determined is that the sub-divisional survey of the original estate land of Ellen Wilson deceased, did not comply with the directions in the will … resulting in the plaintiff’s mother being conveyed part of the land that ought to have been included in the devise to the defendant’s father, Lomiga Wilson Snr.
42.	Although the plaintiff would be affected by the outcome of resolution of the issue between the defendant and the third party, the plaintiff had no involvement, input or influence over the third party in the preparation of the scheme plan 104.  Which means the principal dispute in this action is again between the beneficiaries and the third party as it was in the 1987 litigation.
43.	The test of whether a person is a privy is set out the NZ Court of Appeal in Shiels v Blakeley (1986) 2 NZLR 262 at 268:
“Privy in this sense denotes a derivative interest founded on, or flowing from, blood, estate, or contract, or some other sufficient connection, bond or mutuality of interest.  No case has yet sought to define exhaustively the degree or nature of the link necessary to render a person privy in interest.  That is so is not surprising for the necessary connection may arise in a variety of ways and its existence falls to be tested in the light of the object of the rules about estoppels by res judicata and their effect in preventing the party in subsequent proceeding from putting his case in suit …
We conclude that there must be shown a union or nexus, such a community or mutuality of interest such as identity between a party to the first proceeding and person claimed to be stopped in the subsequent proceeding, that to estop the latter will produce a fair and just result having regard to the purposes of the doctrine of stopped and its effect on the party estopped.”
44.	The history of this estate, the absence of the physical characteristics described in the will to demarcate the devises by the testatrix and the obvious difficulties faced by Justice Bathgate in 1987 in resolving not only the hearsay evidence but the wording of the will itself and its prolonged administration, which has stretched for over 60 years, calls for termination of suits filed by beneficiaries against the third party as executor, over the accuracy of the sub-divisional plans of the estate land.
45.	Both the 1987 and the present litigations were commenced by the heirs of the original beneficiaries of the estate of the testatrix and the common issue is the accuracy of the plan of sub division which allocated the parcels of land to the designated beneficiaries.
46.	Without doubt the third party has been vexed twice for the same cause, that is, the accuracy of scheme plan 104.
47.	The interests of the litigants in both trials were the accuracy of the size and location of their devised interests in the land so that there is a union nexus or mutuality of the beneficial interests which they claimed.
48.	The present litigation has re-opened old wounds inflicted in 1965 to raise the same issue determined in 1987.
49.	An additional reason for the res judicata rule must be that it is undesirable to have two conflicting court judgments on the same issue between the parties.  Res Judicata applies and the defendant is accordingly estopped from challenging the accuracy of the estate sub-divisional plan.
Prayer to the Statement of Claim
50.	The plaintiff in his prayer does not seek an order of eviction against the defendant.  He does however seek in addition to damages, compensation and costs such other order as the court deems just.
51.	In paragraph 14 of the Statement of Claim, the plaintiff requests an Order of Eviction.
Orders
(1)	The defendant, his family and relatives are ordered to vacate parcel 639 within 3 months.
(2)	The plaintiffs claim for damages and compensation have not been substantiated or pursued and are dismissed.
(3)	Both the plaintiff and the third party are entitled to costs which if not agreed upon, memorandum for costs are to be filed within 21 days.

JUSTICE VAAI