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Devoe v Attorney-General & Public Trustee [2007] WSSC 13 (2 March 2007)

IN THE SUPREME COURT 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

Counsels: TRS Toailoa for Applicants
D. Kerslake for First Respondent
H. Hoglund for Second Respondent
S. Leung Wai for Third Respondent

Hearing: 26/09/2006
Submissions: 20/10/2006
Decision: 2/03/2007

RULING OF VAAI J

Introduction

On the 3rd September 1964 the Registrar of Births and Deaths registered the birth of Selesa; a female born on the 6th April 1876 at Sapapalii, Savaii, to Folau Papalii the father, (who before his death was better known as Papalii Folau) and Siulia the mother. Papalii Folau died intestate on or about the 21st day of October 1909; the second respondent is the administrator of his estate which consist of land at Papauta which is presently occupied by the descendants of Selesa. Selesa died on the 5th September 1977; her death certificate states her father to be Iosefatu Ilo and her mother as Siulia.

The applicants are seeking an order to correct the registrar by deleting Folau Papalii as the father of Selesa and substituting thereby Iosefatu Ilo. The application is directed at the first respondent as the registrar of births, deaths and marriages and to the second respondent as the administrator of the estate of Papalii Folau. The third respondent somehow got notice of the application, sought assistance of counsel and was joined as a party at a very late stage after the hearing date was set.

The application is made pursuant to section 73 Births, Deaths and Marriages Registration 2002 which gives the court the power to make necessary orders on an application by the Registrar or any other person or on the court on its own initiative, to complete, correct, clarify or delete an entry in the Register.

The Facts

1. Papalii Folau is not the biological father of Selesa. Papalii was married twice during his lifetime, firstly to Toe and secondly to Puemalo Tamasese. There were no issues from either union. The applicants are the descendants of Puemalo Tamasese from her two marriages after the death of Papalii Folau.
   
2. The third respondent, aged 84, is the daughter of Selesa. She confirmed in her affidavit that Selesa’s mother Sulia is the sister of Papalii Folau and Selesa’s father is Iosefatu. She states at paragraphs 4 and 5, 7 and 8 of her affidavit:
   
   4. MY mother told me that she was raised ever since she was young by Papalii Folau. He paid for her schooling, cared for her and treated her like his own daughter.
      
   5. SHE also told me Papalii Folau wanted the ownership of his lands at Papauta to remain within our family and that was one reason why Papalii Folau adopted her and so the lands will not pass on to other people and to prevent them from interfering with the lands.
      
   7. I have been living at Papauta since I was born in 1922 and no one had ever tried to claim the land or evict us except for a lady named Ane, the wife of Papalii Sione the brother of Papalii Folau. There was a court case and my mother and her brother Pula were successful and I annex a copy of the decision marked "C". The land we live at Papauta is known as Matuli.
      
   8. I and the other descendants of Selesa have been living on the land at Papauta all these years and have built our homes and I am very surprised that these people now claim they are entitled to the estate of Papalii Folau.

The Law

Selesa was born in 1876 when there were no formal laws by way of enactments conventions, ordinances and the like to provide for registration of births; and of adoptions. When Samoa became a German protectorate on the first March 1900 Selesa was approaching her 24th birthday.

The adoption of Selesa by Papalii Folau was undoubtedly a customary adoption. Counsel for the applicants correctly submitted that the Births, Deaths and Marriages Registration Act 2002 and its predecessor the Births and Deaths Registration Ordinance 1961 do not provide for the registration of customary adoptions. But the two enactments are not relevant here as they were not in existence at the time Selesa was born and secondly although adoptions may not be registered under any enactment it does not necessarily follow they are not recognised by law. Customary adoptions may have been recognised by law as valid: Estate of Tui v Faumui Su’e (unreported) Supreme Court of Samoa 4/9/1996. See also Samoan Public Trustee v Collin (1961) WSNZCA 1; (1960–1969) WSLR

I have not had the benefit of legal arguments on the subject whether customary adoptions were recognised by the laws of Germany and New Zealand when they ruled Samoa; and whether our own laws recognise customary adoptions as valid. I am not prepared to make a ruling on the issue in the absence of researched arguments. This issue will undoubtedly be raised in the pending conflicting claims to the estate of Papalii Folau which have clearly emerged and which inspired the applicants to file this application. One of the applicants, Tai Devoe, in her supporting affidavit deposed in paragraphs 2 and 3:

2. The applicants are the descendants of Pu’e Lusia Tamasese who is the principal beneficiary in the estate of one Papalii Folau which is being administered by the Second Respondent.
   
3. The share of the aforesaid Pu’e Lusia Tamasese in the said estate had been greatly undermined by a claim by the descendants of one Selesa, a female born on the 6th April 1876, who are claiming that Selesa was a daughter of the said Papalii Folau.
   

Pursuant to section 44 Administration Act 1975 the estate of Papalii at the moment is to be distributed as follows:

(a) One third (1/3rd) share is to be directed to Puemalo Tamasese, the wife who survived Papalii Folau

(b) Two thirds (2/3rd) share to be directed to Selesa as the only child.

But as already noted the applicants are inspired by a desire to deny the 2/3rd share of the estate going to Selesa. And if I make the order to delete the name Papalii Folau as the father of Selesa the claim by the third respondents to the estate will be jeopardised.

Conclusions:

I am not prepared to make a ruling in the face of the ongoing conflict between the applicants and the third respondents concerning their claims to the estate of Papalii Folau. The applicants sole motive in bringing this application is to shut out the heirs of Selesa from establishing any claim to the estate. They will not achieve that in these proceedings. The issue can be argued fully and a determination made when the court determines the claims to the estate of Papalii Folau. This application is accordingly adjourned to be heard together with those claims. I will not make any order as to costs.

JUSTICE VAAI