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Lima v Pone [2007] WSSC 70 (24 August 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

TULIAUPUPU PALA LIMA
TULIAUPUPU FAAFULU,
PILIMAI SOFENI, FUATAGA LAULU,
FEALOFANI LIMA and TAUA SIONE
all of Letogo in their own right and as representatives of the
ALII & FAIPULE OF LETOGO
Plaintiffs

AND:

OSOOSO PONE
of Letogo, Housewife
Defendant

Counsel: Mrs R Drake for plaintiffs
Mr Ainuu for defendant

Hearing: 21 November 2006
Judgment: 24 August 2007

JUDGMENT OF VAAI J

The plaintiffs are the representatives of the Alii and Faipule (Village council) of the village of Letogo who on the 1st November 1986 leased from the Western Samoa Trust Estates Corporation (WSTEC) about 34 acres of land (the land) at Letogo for a term of 20 years at $5 per acre per year and with a right of renewal for a further 20 years. No formal deed of lease was executed. The land was subsequently transferred to the Samoa Land Corporation, a statutory corporation, prior to the expiration of the lease in October 2006, but that is insignificant and irrelevant for the purpose of these proceedings. It was subdivided into about 115 parcels which were then allocated amongst the village matai’s who were accordingly levied $300 to cover the cost of subdivision and rent for 20 years.

The defendant is the de facto wife of one Faletagoai Timu (Timu), a matai of Letogo, who was allocated parcel 81. Both the defendant and Timu resided on parcel 81. Then in 1998 Timu was taken to NZ for medical treatment and from then on commenced to reconcile and eventually lived with his married wife in New Zealand whilst the defendant, her children from her former husband and her daughter from her relationship with Timu continued to live on parcel 81. Whilst in New Zealand, Timu wrote to the plaintiffs to remove the defendant from parcel 81. In response the plaintiffs advised Timu that the removal of the defendant was his responsibility. In December 2000 Timu returned to Samoa and advised the plaintiff through one of its most senior matai, Tuliaupupu Faafulu, of his desire to relinquish parcel 81 back to the plaintiff. Timu then returned to New Zealand. At its monthly meeting in March 2001 the plaintiff was advised accordingly and soon after the secretary of the plaintiff advised the defendant that parcel 81 has reverted to the plaintiff. The defendant has refused to vacate parcel 81 upon which she has built permanent dwellings.

It is impossible to avoid feeling great regret for the unfortunate position in which the defendant has been placed. She seemed to have acted honestly and bonafidely and one cannot help regretting the stress, inconvenience and the expense to which she has been put. After all she has been cohabiting with Timu since about 1979, have one child from their union, moved onto parcel 81 in 1986 and commenced to construct dwellings o the land. When Timu was taken to New Zealand in 1998 for medical reasons the defendant had no reason to believe that not only would Timu end their relationship but he would also go another step further to evict her from the land which she believed and treated to be theirs. And one would expect that when one of the village leaders failed in his moral and ethical duties, the others such as the plaintiffs would step in to ease the burden. It was not the case here. The plaintiffs have insisted to pursue their legal rights and the court is duty bound to determine those rights and provide the appropriate remedy.

The law

As the land was leased from WSTEC to the plaintiff in 1986, the plaintiffs are the lessees and WSTEC the lessor. When the plaintiffs allocated parcel 81 to Timu, the relationship between the plaintiff and Timu was that of licensor and licensee. And Timu as licensee in December 2000 gave notice to the plaintiff to terminate and revoke the licence granted to him over parcel 81. Licences were granted by the plaintiff to the matais of Letogo to occupy the leased land and since the defendant was not a matai she was not entitled to and did not receive such licence. Indeed this court has already determined in Tuliaupupu Fa’afulu & Others v. Faletuai Pelenato & Ake Etuale (unreported, 3/7/2000) that lands leased from WSTEC by the Alii and Faipule of Letogo were in turn allocated to the matais of Letogo who occupied them as licensees.

Statement of Defence

What is very obvious from the Amended Statement of Defence and Counterclaim is the complete lack of understanding of the issues and the simple principle of law involved in the claim. It also highlight the very common but false beliefs amongst residents of Letogo that the payments by them of $300 towards the cost of subdivision and lease payment constituted the purchase price of the land as well, and would vest in them the fee simple. The contention therefore by the defendant in paragraph 19 of the amended statement of defendant that:

"... The Defendant was told that the $300 would go towards the total purchase price of the lot they were occupying and once the papers were completed they would own the lot in fee simple."

is misleading, untrue and without foundation.

Timu may have been misled by his children from his married wife; indeed Timu may have been coerced, when he returned parcel 81 to the plaintiffs, as contended by the defendant in the statement of defence. But even if that is true, it does not confer on the defendant a defence against the plaintiff’s claim for eviction. The defendant never had any interest in the land. The licence to occupy and use parcel 81 was personal to Timu who was a matai; he held the licence pursuant to several conditions. When he returned the land his licence or permission to occupy was terminated. His reasons for relinguishing parcel 81 is irrelevant.

Although it is not raised in the Amended Statement of Defence, it is argued in the written submissions by counsel for the defendant that since the lease between WSTEC and the plaintiff does not comply with section 4(1) Property Law Act 1952, the plaintiffs have no standing to bring this action and should be struck out.

Section 4(1) Property Law Act 1952 provides:

"Every deed, whether or not affecting property, shall be signed by the party to bound thereby, and shall also be attested by at least once witness and if the deed is executed in Samoa, the witness shall add to his signature his place of abode and calling or description ..."

Counsel argued that since the plaintiff has no written deed of lease they accordingly have no locus standi to bring this action. Needless to say that the argument cannot be sustained. The section does not say that leases not incorporated in a deed cannot be enforced or are not binding; far from it; leases can be oral, written, or partly oral and partly written. The section simply states the requirements of a written deed whether or not the deed is intended to affect property.

Finally the defendant contended that there is no credible evidence before the court that the licence granted to Timu by the plaintiffs was terminated. Counsel contended that Tuliaupupu Fa’afulu’s evidence was hearsay when he told the court that Timu notified him in December 2000 he was relinquishing parcel 81 back to the plaintiffs. It is also alleged in the Amended Statement of Defence that Timu was deaf and mute but that cannot be accepted because the defendant herself said she talked with Timu when he visited her in December 2000. I accept evidence by the plaintiff that Timu had hearing problems. For Timu to notify the plaintiff of his resolve to terminate the licence to occupy parcel 81 he could only do so by attending a meeting of the plaintiff, by writing to the plaintiff through the pulenu’u (mayor) or more commonly and traditionally by verbally informing the pulenuu or senior matai. The title Tuliaupupu is a high ranking matai of Letogo and Timu was quite entitled to notify the plaintiffs through the Tuliaupupu title holder. I accept Tuliaupupu’s evidence that he was notified by Timu in December 2000 and in turn informed the village council when it met in March 2001. Witnesses for the plaintiff also told the court that they did not initiate legal action until 2005 because they have been very patient with the defendant and had preferred the defendant to leave peacefully.

The defendant has unfortunately no defence in law to the plaintiffs’ claim and it also follows that her counterclaim for the value of the buildings she erected on the land must also fail. In any event the plaintiffs would not prevent her from dismantling and removing the buildings; but even if she was entitled to the value of the dwellings, the court in the absence of a proper valuation cannot determine the current value of the buildings. The counterclaim therefore fails.

Order

The defendant, her family, agents and all persons occupying parcel 81 are ordered to vacate the land within two months.

The defendant’s counterclaim is dismissed.

The defendant is ordered to pay costs of $1,500.

JUSTICE VAAI