IN THE SUPREME COURT OF SAMOA
Ainuu & Anor v Norris & Ors [2020] WSSC 104 (09 December 2020)

Case name: 	Ainuu & Anor v Norris & Ors	
		
Citation: 	[2020] WSSC 104	
		
Decision date: 	09 December 2020	
		
Parties: 	FAAOLESA KATOPAU T. AINUU of Leufisa, Solicitor and Cabinet Minister and TEO FAITELE AFAMASAGA of Leufisa, for and on behalf of the Estates of Faaolesa Katopau Ainuu, Deceased and Toga Dutchie (nee Ainuu), Deceased, Late of Apia
(Plaintiffs) v AFUVAI NORRIS of Tufuiopa, Public Servant, MERESAINI SIAOSI LAULUA of Tufuiopa, Public Servant, LISI SIAOSI of Tufuiopa, Domestic Duties, PAILAGI POULAVA of Tufuiopa, Domestic Duties (Defendants)	
		
Hearing date(s): 	12 February-14 February 2020, 16 March 2020	
		
File number(s): 		
		
Jurisdiction: 	CIVIL	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Tuala-Warren	
		
On appeal from:		
		
Order:	Before any orders are made by this Court in relation to the plaintiffs’ claim, the plaintiffs are invited to apply for a grant of letters of administration to administer the estate of Toga and Tatapau.
If those letters of administration are granted by the Court, it follows that the Court will grant the application by the Plaintiffs for the Defendants to move off the land. This is unfortunate given the length of time they have occupied the land and the relationship they have had with the plaintiffs.
The counterclaim by the defendants is denied for foregoing reasons.	
		
Representation: 	S. Ponifasio for the Plaintiffs
A. Sua for the Defendants	
		
Catchwords: 	Dispute over land – ownership of land 	
		
Words and phrases:		
		
Legislation cited:		
		
Cases cited:		
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

FAAOLESA KATOPAU T. AINUU of Leufisa, Solicitor and Cabinet Minister and TEO FAITELE AFAMASAGA of Leufisa, for and on behalf of the Estates of Faaolesa Katopau Ainuu, Deceased and Toga Dutchie (nee Ainuu), Deceased, Late of Apia

Plaintiffs

A  N  D:

AFUVAI NORRIS of Tufuiopa, Public Servant, MERESAINI SIAOSI LAULUA of Tufuiopa, Public Servant, LISI SIAOSI of Tufuiopa, Domestic Duties, PAILAGI POULAVA of Tufuiopa, Domestic Duties

Defendants

Counsel:	S. Ponifasio for the Plaintiffs
		A. Sua for the Defendants

Hearing dates:	12 February-14 February 2020, 16 March 2020
Date of Reserved decision: 9 December 2020

RESERVED DECISION OF TUALA-WARREN J
Brief Background
1. 	The land which is at issue is Lot 862, Plan 4346 which is an estate in fee simple with its registered owners being Toga and Tatapau, Samoans. The land is called Punapuna and is located in Tufuiopa (“the land”).
2. 	The plaintiffs claim that they are beneficiaries of the estates of Faaolesa Katopau Ainuu, Deceased and Toga Dutchie (nee Ainuu), Deceased of Apia and they have authority to bring these proceedings.
3. 	The plaintiffs say their parents gave permission to the defendants’ parents to occupy the land and that they are representatives of the estates advised the defendants by letter from their solicitors dated 12 May 2017 to vacate the land and remove all their belongings within 30 days. The defendants still remain on the land.
4. 	The defendants say there is no reference to Faaolesa Katopau Ainuu or Toga Dutchie on the registered title and the plaintiffs must prove their connection or relationship to the registered owners.
5. 	They say Lot 862 Plan 4346 was given as igaga to their late grandmother Vaasa by the late Ainuu Katopau as reward for tautua she had rendered in the 1950s when 90% of the land was swampy. They say their grandparents, parents and then themselves have reclaimed the land to make it solid land. They say the costs of this reclamation is $400,000.00 and it is unjust for the plaintiffs to retain the costs of this benefit.
Pleadings
6. 	On 5 July 2017 the plaintiffs filed a Statement of Claim seeking an order of eviction against the defendants, their families and or agents currently living on the land, and order of possession in favour of the plaintiffs, costs of the action and other relief as the Court deems appropriate and just.
7. 	The defendants filed a First Amended Statement of Defence and Counterclaim dated 29 July 2019 praying for dismissal of the plaintiff’s claim, revocation of injunction issued against the defendants and their late father on the improvements made on their dwelling on the property, costs and other relief as the Court deems just.
8. 	By way of counterclaim, the defendants seek compensation for reclamation in the sum of $400,000.00, revocation of the injunction, costs and relief as the Court deems just. 
9. 	The matter between the Plaintiffs and Elsa Falevi Umutaua who was the fifth named defendant was settled in early 2019. 
The evidence of the Plaintiff
10. 	The plaintiffs called 4 witnesses.
11. 	Togia Falaniko Afaese is senior officer in the Registry of Lands. He explains that the land used to be customary land and it was declared freehold by Court grant dated 20 November 1894 (“P2”). The land was entered into the Register book on 13 October 1921 (“P1”). The owners of the land who are registered are Toga and Tatapau Samoans. Plan 4346 was approved by the Director of Lands on 15/9/88 (“P3”). He says the survey was requested by the Applicant noted on the survey plan as Ainuu Tasi Tupou.
12. 	He confirms that there is no transmission registered in the registers which changes the ownership of the land and the name of the register cannot be changed without a transmission.
13. 	Teo Faitele Afamasaga who is a public relations officer to the Prime Minister, confirms his affidavit dated 17 June 2019 (“P4”). He says they have no blood connection with the defendants. He says Tatapau registered on P1 is his great grandfather Faaolesa Katopau Ainuu and Toga is his great grandfather’s sister. He says Toga married Dutchie and they had no issues. He says his great grandfather Katopau’s son is Ainuu Tasi I. Ainuu Tasi I married Taase and had Talele and Ainuu Tasi II. Talele is his mother and Ainuu Tasi II is the first named plaintiff’s father.
14. 	He says that Tatapau and Toga’s parents are Aisake and Amilaina.
15. 	Teo says that his grandparents permitted the defendants and their parents to reside on the land. In return the defendants and their grandparents offered service and support, osi aiga to their grandparents, parents and them as chiefs. These were the conditions of their continuous occupation of the land. He recalls Pili and Vaasa as participating in family affairs and they were treated as family members despite having no blood connection with them. He recalls that Siaosi and Lisi, the defendants’ parents, Siaosi being the son of Vaasa, continued the commitment and participation in family affairs until they too passed. In or about 2014, Siaosi and his children stopped participating in family affairs. This was resolved and Siaosi continued to render service until he passed in 2016. Siaosi’s children then stopped participating in family affairs. That is why they have been asked to vacate the land. Their non-participation in family affairs removes any family connection or ties between them and the defendants.
16. 	Teo says the defendants never asked for permission to fill the land so any fill was carried out for their own benefit and on their own free will.
17. 	Elsa Falevi Umutaua was the fifth named defendant with whom the plaintiffs settled. She confirms her affidavit dated 17 June 2019 (“P5”). Her connection to the defendants is that they are her nieces and nephews.  Her father is Pili Suniula. His sister is Vaasa who is the grandmother of all the defendants. Her connection to the plaintiffs is that Pili and Vaasa’s father’s sister Taase was married to Ainuu Tasi I who is the grandfather of the plaintiffs. 
18. 	She says that the occupation of Tufuiopa is through Taase’s familial connection to Pili. Pili and his wife started occupying the land from about 1955 onwards and continued their familial connections with Taase and Ainuu I. Her father then brought his mother Sulu to live with them, and his sister Vaasa and her two children Siaosi and Suniula, to look after their mother. This she says is how Siaosi, the father of the defendants came to live on the land.
19. 	She says her father started to fill the land and continued to do so because of the erosion and flooding in low lying areas. The land is located by a river and she says she and her husband continue to fill their side of the land. They have never asked the plaintiffs for permission to fill the land. She says she and her siblings gave permission to Siaosi and his children to build their new home after initially objecting. 
20. 	She recalls that they have provided support to the plaintiffs’ grandparents and parents as long as they have resided on the land. She says Siaosi and his children stopped participating in family affairs and the plaintiffs brought proceedings in or about 2014. The matter was settled with Siaosi signing an agreement to continue participating in family affairs. The defendants have not kept to this agreement and thus the continuation of the proceedings. She is saddened by the defendants’ stance and their claims relating to ownership and boundaries. 
21. 	She pointed to an agreement signed by Ainuu T. Tatopau in 1957 in which he gave the land to Pili Suniula in return for his servitude (P6).
22. 	Fealofani Suniula is the half brother of Elsa. Their father is Pili Sunila. He says that this father was given the land by Tasi Ainuu I. The land was swampy and it took a long time to reclaim it. He says sometime after Independence, his grandmother and his father’s sister Vaasa were brought to live with them on the land. So his father left them in the old house and built another house for his family.
23. 	He confirms the 1957 gift of the land to his father Pili, and he says the land belongs to Pili. He supports the plaintiff’s attempt to remove the defendants as he says it is his father’s land.
Evidence of the Defendants
24. 	Meresaini Siaosi-Laulua is one of the named defendants in this matter. Her father is Siaosi who is the son of Vaasa. Vaasa is the sister of Pili Suniula. She recalls picking up rubbish from a young age to fill the water logged areas of the land at Tufuiopa. Her father would fill the land when he was able to financially get loads of rocks and soil. Her grandmother is buried on the land.
25. 	She says that the plaintiffs were unhappy with them for not attending family meetings and not contributing to family faalavelaves according to their expectations. This started the eviction proceedings. She says her family have had enough of the bullying and demeaning attitude of the plaintiffs.
26. 	She points to the land Register Vol 2 Folio 274 and the Court Grant 105 which have owners of the land as Toga and Tatapau.
27. 	She says her family were the first to settle the land.
28. 	She disputes the plaintiffs’ connection to the registered owners of the land, Toga and Tatapau as the land is still under their names.
29. 	Seve Keilani Soloi is a principal licensed surveyor for 40 years. He was hired by Meresaini to give his expert understanding of the land documents pertaining to the land.
30. 	He says that the boundaries of the land according to Court Grant 105 are different from the land mass of Lot 862 according to survey plan 4346. The survey plan 4346 took 8 years to be approved since its surveyance in 1980. The land area in survey plan 4346 is about 54% bigger than what is described in Court Grant 105. 
31. 	He also notices that the survey plan 4346 does not coincide with the survey report. The survey report notes the Applicant as Pili Ainuu Suniula and the survey plan notes the Applicant as Ainuu Tasi Tupou.
32. 	He says there is a reference in Court Grant 105 of the neighbouring Vaea Estate. There are no records in MNRE that a Vaea estate exists within the Tufuiopa area. 
33. 	Safuta To’elau Iulio is an Assistant Chief Executive Officer, Technical Division, MNRE. He has been with MNRE since 1978. He was approached by the defendants to assist the Court in relation to Survey Plan 4346 of which Land Lot 862 is a part. 
34. 	He makes the following observations:
(a) 	There is one survey report dated 30 September 1980 prepared by Fiu Mataese. This survey report must be consistent with Survey Plan 4346;
(b) 	Survey plan 4346 does not have any field book records that should describe the condition of the land;
(c) 	The survey plan does not coincide with the survey report as the applicants are different. The survey plan notes the Applicant as Ainuu Tasi Tupou and refers to Court Grant 105, while the survey report refers to Pili Ainuu Suniula as the applicant and refers to Court Grant 865;
(d) 	These are significant changes as far as land surveyance is concerned. There are no records to document the changes such as a survey report;
(e) 	There are no field book records and traverse sheet in the ministry’s records so the plan should never had been approved.
35. 	He reconfirms that for Lot 862 on survey plan 4346, ownership is vested in Toga and Tatapau and there is no mention of Ainuu in the records.
36. 	Manumaleuga Felisita Ikenasio Heather is the Assistant Chief Executive Officer for MNRE, Land Management Division. She confirms that Lot 862 plan 4346 is the land described in Court Grant 105. Plan 4346 according to Mrs Heather is a definition survey plan of Court Grant 105 and customary land called Punapuna situated at Tufuiopa. Parcel 863 is customary land while Parcel 862 is Court Grant 105. 
37. 	Tumua Ioane Evalu is the valuer who gave a valuation of Lot 862 on Plan 4346. Mr Evalu has had over 15 years practical experience in land management. He used $200 per square metre to calculate the reclamation. He found reclamation costs to be $187,400.00. The main dwelling is valued at $236,250.00. Improvement costs to a wooden dwelling 1 is $12,000.00 and improvement costs to wooden dwelling 2 is $30,000.00. This brings the current market value of residential land and buildings to $609,520.00.
Submissions of the Plaintiffs
38. 	The plaintiffs submit that they bring these proceedings in their personal capacities, and for and on behalf of the descendants of Toga and Tatapau, who together are the beneficiaries of the estate of Toga and Tatapau, the registered owners of Lot 862.
39. 	The document ‘P6’ signed by Ainuu T. Tatopau gifting Lot 862 to Pili Aiuna Suniula did not pass or transfer ownership of Lot 862. Ainuu T. Tatopau is not the registered owner but it does not show that he had authority over Lot 862. Taase who witnessed the document is the plaintiff’s grandmother.
40. 	Teo deposes in his affidavit that his great grandfather is Tatapau’s son, Ainuu Tasi I. The plaintiffs submit that Tatapau the registered owner was likely to be also known as Kakapau, Katopau and Tatopau. They submit that in the Samoan language the interchange in the use of “T” and “K” represents the formal spoken language and informal spoken language. 
41. 	They submit the relevant documents are:
(a) 	Indenture dated 1 June 1887 shows that Amelia Williams and John Williams, Executrix and Executor of the estate of John C. Williams sold the land the George A. Pritchard in trust for Toga and Kakapau daughter and son of Ioane;
(b) 	Land Claim No. 3123 (undated) – the names of the claimants are stated as Toga and Kakapau son and daughter of Aisake Apia by their trustee G. Pritchard;
(c) 	Samoa Land Commission Report on Claim No 3123 dated 4 June 1892 refers to the claimant as George Pritchard Trustee of Toga and Kakapau children of Aisake a Samoan; 
(d) 	The Court Grant 105 dated 28 November 1894 specifies Toga and Tatapau; and 
(e) 	The map Fleur 2 Blatt shows the name Tatopau and the names Ainuu, Tasi Apia which shows that the person Tatopau existed at the time. 
42. 	They submit that the Indenture dated 1 June 1877 where it says that Toga and Tatapau are children of Ioane is likely to be a mistake as it would have been prepared by Williams or their solicitor. The documents signed by George Pritchard who was Toga and Tatapau’s trustee, refer to Toga and Tatapau as children of Aisake. Teo gave evidence that Toga and Tatapau are the children of Aisake. 
43. 	They submit that Ainuu Tasi Tupou is noted as the Applicant on Plan 4346. They submit that both Togia Falaniko Afaese and Mrs. Heather who both work at MNRE, said the Applicant is likely to have an interest in the land. 
44. 	They submit that Plan 4346 remains an approved Plan in accordance with the relevant land survey laws. 
45. 	They say that when all the evidence is considered in its totality, it is more probable than not that the plaintiffs are descendants of Tatapau or Kakapau or Katopau, one of the two registered owners of Lot 862. It is likely though that the estate of Toga and Tatapau is unadministered. However the plaintiffs are bringing this proceeding as a derivative action on behalf of the beneficiaries of Toga and Tatapau pursuant to Rule 36 of the Supreme Court (Civil Procedure Rules) 1980.
46. 	It is submitted that the defendants have been occupying Lot 862 on the basis of a bare licence given by the plaintiff’s grandfather, deceased. The plaintiffs as descendants of the licensor have since decided to terminate the bare licence given by their grandfather.
47. 	In relation to the counterclaim for unjust enrichment, whereby the defendants are seeking compensation for reclamation works to Lot 862. It includes reclamation carried out by Pili Suniula and his children. It is also submitted that the defendants have been living and benefitting from their continuous occupation of Lot 862 since the 1970s and any reclamation work should be offset by their free occupation of Lot 862. In any event, they ask that the defendants remove all their houses if they are ordered to vacate.
Submissions of the Defendants
48. 	The defendants submit that the plaintiffs do not have standing to bring proceedings against the defendant. Section 14 of the Administration Act 1975 provides;
	14. Immediately upon the grant of administration of the estate of the deceased person, all the estate then unadministered of that person, whether held by the person beneficially or held by the person in trust, shall vest in the administrator to whom the administration is granted for all the estate therein of that person…
49. 	They further say that there is an absence of birth, baptismal or death certificates to prove the plaintiffs’ connection to the registered owners, and an absence of letters of administration.
50. 	They submit that the defendants have made improvements to the land which will enrich the plaintiffs and it is inequitable for them to maintain that benefit without paying compensation.
51. 	They dispute the Plaintiffs’ claim on the basis that there is no mention of the names Faaolesa and Ainuu as being connected to Toga and Tatapau.
52. 	In any event they submit that the water logged area may belong to the State as land lying below the high water mark as per Article 104 of the Constitution of Samoa 1960.
53. 	They say that it was the Plaintiffs’ grandfather Ainuu Tasi II who allowed them to occupy the land in the early 1950s. They say the 1957 document gifting the land to Pili Suniula, was not a gift from Toga or Tatopau. It was a gift from Ainuu Tasi II who was not the administrator of Toga and Tatapau’s estate.
54. 	They submit that there is no evidence whether Toga and Tatapau owned the land as joint tenants or tenants in common, or when they passed away.
Discussion
55. 	Several difficulties arise in relation to both the claim and the defence in this case.
56. 	Firstly any right to deal with freehold land must have a legal basis. Had there been a conveyance or letters of administration granted in this case, the issue would have been straightforward and the removal of the defendants from the land would have been unproblematic.
57. 	On the other hand, the defendants concede that their authority to occupy the land was given by the plaintiff’s grandfather, who himself was not the registered owner of the land. This makes their basis of occupation extremely tenuous.
58. 	For the same reason, any claim to ownership of the land advanced by Elsa’s family on the basis of the 1957 agreement signed by Ainuu T Tatopau is weak. However the plaintiffs have settled with Elsa. I need to go into this issue.
59. 	An application for letters of administration should have preceded this hearing. I find that this needs to happen first. Because such applications would need to be given to the Public Trustee, information may be gathered (or not) from the Public Trustee pertaining to the estate of Toga and Tatapau. The plaintiffs adduced evidence in this hearing to attempt to show that they had a connection to the registered owners, Toga and Tatapau. A similar but much more thorough process, involving others with an interest in the land, would be used to determine if the plaintiffs, should be granted administration.
60. 	I will allow a formal application for letters of administration to be filed by the Plaintiffs. As it stands, they are not administrators of the estate of Toga and Tatapau, who I have accepted on a balance of probabilities, they have a connection to. On the evidence presented, it is more likely than not that they will be granted letters of administration, depending on others who may come forward claiming an interest in the land. The Court shall have regard to the rights of all persons interested in the estate of Toga and Tatapau when considering a grant of administration (section 6 Administration Act 1975). If granted, their claim to remove the defendants from the land will also be granted. However, the plaintiffs have to follow the process of applying for administration.
61. 	It is prudent for the defendants to consider moving off the land. The basis of their occupation of the land cannot be maintained. They were given permission by the plaintiff’s grandfather who was not the registered owner of the land. They never had a legal right to occupy the land, and in moving forward, their authority to continue to occupy the land will rest with the administrators of the estate. From the evidence, if the plaintiffs become administrators, their position is for the defendants to move off the land and remove their structures on the land. The defendants could on the other hand, wait it out until administration is granted, in which case, the time granted to move off the land may be short and insufficient. It is important that are aware of the possible and likely outcome. 
62. 	Any issues raised about survey plan 4346 are not the subject of these proceedings. That is left to the administrators of the estate once appointed. Similarly, the possibility that the land may belong to the State is an issue for the administrators. 
63. 	In relation to the defendants’ counterclaim, because they had no legal basis for occupying the land, they cannot then claim any improvements from the estate because the permission to occupy was not given by the registered owners. Ainuu Tasi II is not the registered owner.
Result
64. 	Before any orders are made by this Court in relation to the plaintiffs’ claim, the plaintiffs are invited to apply for a grant of letters of administration to administer the estate of Toga and Tatapau.
65. 	If those letters of administration are granted by the Court, it follows that the Court will grant the application by the Plaintiffs for the Defendants to move off the land. This is unfortunate given the length of time they have occupied the land and the relationship they have had with the plaintiffs.
66. 	The counterclaim by the defendants is denied for foregoing reasons. 

JUSTICE TUALA-WARREN