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Devoe v AG [2007] WSCA 5; CA 04 of 2007 (14 September 2007)

IN THE COURT OF APPEAL OF SAMOA
HELD AT APIA

IN THE MATTER
of the Births, Deaths and Marriages Registration Act 2002

AND

IN THE MATTER
of the Registration of the Birth of one Selesa, Deceased.

BETWEEN:

TAI DEVOE
of Vaitele

AND

MANULELEUA LAGOFAATASI
of Vaimoso.
Applicants

AND

THE ATTORNEY GENERAL
sued for and behalf of the Registrar of Births, Deaths and Marriages.
First Respondent

AND

THE PUBLIC TRUSTEE
as Administrator of the Estate of
PAPALII FOLAU, Deceased.
Second Respondent

AND

IMOKENE TAMASEU
of Papauta, Retired.
Third Respondent

Coram: The Honourable Justice Baragwanath
The Honourable Justice Salmon
The Honourable Justice Paterson

Hearing: 10 September 2007

Counsel: TS Toailoa for Appellant
S Rimoni for Attorney General
H Hoglund for Public Trust
S Leung Wai for Third Respondent

Judgment: 14 September 2007

JUDGMENT OF THE COURT

Introduction

[1]. This is an appeal against a ruling of Vaai J. The appellants sought an order correcting the entry in the register of births, relating to the birth of a female child, Selesa, born on the 6th April 1876 at Sapapalii, Savaii. The entry of the birth in the register was not made until the 3rd December 1964. The register records the father of Selesa as Folau Papalii. The appellants application seeks to correct the register by deleting Folau Papalii as the father of Selesa and substituting therefore Iosefatu Ilo.

[2]. The third respondent was not initially joined in the proceedings. Surprisingly for proceedings of this nature, no application for directions as to service was made when the proceedings were commenced. This should have been done because there are descendants of Selesa who have a very real interest in the outcome of the application. Those descendants, of whom the third respondent is one, heard of the proceedings a short time before they were due to be heard by the Supreme Court and an order was made joining the third respondent as a party.

[3]. The appellant’s application was made pursuant to Section 73 of the Births, Deaths and Marriages Registration Act 2002 which relevantly provides:

(1) Where, on application by the Registrar or any other person or on its own initiative, the Court is satisfied in respect of any of the following ...

• (c) Information recorded in the Register about an event is incomplete, incorrect, or misleading.

...

The Court may ... make such orders as are necessary to complete, correct, clarify or delete an entry to the Register.

[4]. After hearing argument on the application, the judge decided to adjourn it so that it could be heard with other proceedings concerning claims to the estate of Papalii Folau. This appeal has been brought on the primary ground that the judge was not entitled to decline to make a determination of the issue put before him. The judge took the view that the purpose of the proceedings was to strengthen the position of the appellants in their claim to the estate of Papalii Folau.

Background

[5]. As already mentioned Selesa was born on the 6th April 1876, but her birth was not officially registered until the 3rd December 1964. As mentioned above her father was shown as Folau Papalii and her mother as Siulia Folau Papalii. Folau died intestate on the 21st October 1909 and his estate includes land at Papauta not far from Vailima. It is common ground that Folau is not the natural father of Selesa and that Selesa’s mother was in fact Folau’s sister. Selesa grew up with Folau who according to the evidence treated her like his own child and adopted her. The judge took the view that this was a customary adoption.

[6]. Folau married twice. In each case there were no children of the marriage. The second marriage was to Puemalo. After Folau’s death, Puemalo married twice, first to a man called Ekerama. There were two children of that marriage, Nuuausala and Ekerama Junior. Tai Devoe, one of the appellants, is a descendant of Nuuausala. The second marriage was to Aleluia Savealio. The appellant Manuleleua Lagofaatasi is a descendant of that man, although Manuleleua has, since the institution of the proceedings, died.

[7]. The second respondent has been appointed as administrator of the state of Papalii Folau. That appointment was not made until the 14th September 2004. The second respondent takes the view that the estate should be distributed in accordance with the provisions of Section 44 of the Administration Act 1975. On that basis a 1/3 share of the estate would go to Puemalo’s estate, she being the deceased’s second wife and a 2/3 share would go to Selesa’s estate on the basis of the birth certificate showing her as a child of Folau. There is a question as to whether this conclusion as to distribution is correct because it is probable that the law which should apply to the distribution of the estate is that which was in force at the time of the death of Papalii Folau in 1909.

[8] The second respondent is also the administrator of Puemalo’s estate. He was appointed as administrator on 23rd May 2005. Puemalo died on the 11th March 1976 so it seems there can be no doubt that her estate is properly administered under the 1975 Act. It seems clear that if the amendment to the register sought by the plaintiff was made, the plaintiffs would then be able to claim (at least in term of the 1975 Act) an entitlement to the whole of the estate of Papalii Folau. Such a result is strongly contested by the descendants of Selesa. The third respondent deposes that those descendants, of whom she is one, have lived on the land continuously from the time that Selesa lived there with Folau down to the present time.

The Submissions in this Court

[9] Mr Toailoa for the appellant submitted that pursuant to S73(1) the judge was duty bound to make the appropriate order, despite the use of the word "may", if clear evidence of an error in the register was before the Court. We would accept that in many instances this may be so (see Julius v Bishop of Oxford [1880] 5 App Cas 214). But it would not be so if (as in this case) it was not clear, because of the adoption, what the appropriate amendment would be, or where (as in this case), because of other issues between the parties, to make an order might create an injustice. In such a case the appropriate course to follow is to adjourn the application so that other issues clearly arising in the circumstances of the case can be decided along with correction of the register.

Mr Toailoa accepted that there was a possibility that there may have been an adoption pursuant to statute law in the late nineteenth century.

[10] Mr Toailoa submitted that the judge erred in concluding that the Births, Deaths and Marriages Registration Act 2002 and its 1961 predecessor were not relevant. We accept this submission. Clearly the 1961 ordinance under which the registration was made applies to births not previously registered.

[11] The 1st and 2nd respondents in their affidavits and through counsel provided useful information and otherwise took a neutral view as between the parties. Counsel for the 2nd respondent emphasised the importance of an early determination of this dispute so that he could proceed with the administration of the two estates.

[12] For the 3rd respondent Mr Leung Wai correctly submitted that the second named appellant could only continue with these proceedings if the executor or administrator of his estate decided to do so. That issue is of little importance to this appeal because the first named respondent is able to continue. Mr Leung Wai agrees that the issue of the adoption must be resolved but points out the difficulties of ascertaining the law which applied in the late nineteenth century. He advised us that the land on which the 3rd respondent and other members of her family reside is valuable and that they have built at least four European style houses on it. He emphasised that he had less than a month to prepare for the 3rd respondent between the time of joinder and the hearing of the proceedings in the Supreme Court.

[13] After some discussion all counsel agreed that it was desirable that all issues relevant to the administration of the estates should be argued at one hearing and that should occur as soon as reasonably possible.

Discussion

[14] We agree that this matter should be referred back to the Supreme Court for resolution. We consider that the Judge was right to adjourn the proceedings but should not have done so on an indefinite basis. It is obviously essential that all the issues relevant to the distribution of the two estates should be determined at the same time. These issues include:

What legal system governed the validity and effect of the adoption of Selesa by Folau?

For example, was it:

- indigenous Samoan law? (see Arani v Public Trustee [1910] NZ PCC1)

- German colonial law?

- Colonial law under the New Zealand Trusteeship? (see Oyekan v Adele [1957] 2 All ER 785 (P.C.))

- statute law (and if so what statute)?

- If the adoption was customary did that enable registration pursuant to the Births and Deaths Registration Ordinance 1961? Does the 2002 Act make any difference?

- Is a person adopted pursuant to customary law entitled to share in the distrubtion of the estate of the adopting parent?

- What is the law which should govern the distribution of Folau’s estate? Is it the law in force at the time of his death or is it the current law?

- What effect does the order of the Land Court dated 6th November 1923 have on the land available for distribution in the intestate estates?

- Are there relevant issues of adverse possession and limitations?

- Have parties resident on the land acquired interest in it by virtue of principles of proprietary estoppel or otherwise? (see Plimmer v Mayor of Wellington [1884] 9 App. Cas. 699)

It may not be possible after the passage of so much time to resolve all of these issues but we mention them so that they are not overlooked.

[15] We suggested to Mr Hoglund that because these questions or most of them need to be answered before the Public Trustee can effect distribution it would seem desirable for him to issue proceedings seeking directions from the Court. These proceedings should be served on all interested parties or their representatives. An application for directions as to service should be made incorporating an application for representative representation pursuant to Rule 36 of the Supreme Court (Civil Procedure) Rules.

All interested parties should then ensure that all the issues requiring determination are brought before the Court in those proceedings. The Appellants present application can be determined at the same time. If the Public Trustee elects not to issue proceedings it will then be necessary for one or other of the affected parties to do so.

[16] The appeal is dismissed and these proceedings are referred back to the Supreme Court for the appropriate timetable orders and directions to be made.

Costs

[17] Mr Toailoa submitted that if the appeal did not succeed there should be no order for costs. The 1st and 2nd respondents abide the decision of the Court. The 3rd respondent seeks costs in the event of the appeal being upheld.

The appeal has failed in its essentials. We also note that this matter might have been more fully argued at the Supreme Court hearing if the appellants had followed the proper course of seeking directions as to service on the descendants of Selesa. The 3rd respondents are entitled to costs against the appellants in the sum of $1000. Neither of the other respondents sought costs and we make no order in relation to them.

Honourable Justice Baragwanath

Honourable Justice Salmon

Honourable Justice Paterson