Home | Databases | WorldLII | Search | Feedback Supreme Court of Samoa

Alailima v Esera [2007] WSSC 62 (27 July 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

LEIATAUA AMUTUANAI VAIAO ALAILIMA
of Vaivase and Salani, Farmer
Plaintiff

AND:

FUIMAONO RIMONI ESERA
of Alafua and Salani, Farmer
Defendant

Counsel: R Drake for plaintiff
T R S Toailoa for defendant

Hearing: 03 May 2007
Submissions: 30 & 31 May 2007
Judgment: 27 July 2007

JUDGMENT OF THE COURT

Both the plaintiff and defendant are matais; both of them hold the high ranking title Fuimaono from the village of Salani in the district of Falealili and each of them is supported in this litigation by different factions of the village over their dispute concerning the right to possess and use of certain public land at Salani.

Background

Large tracts of crown land of approximately 18,500 acres was given to the people of Falealili district during the period Samoa was under New Zealand administration for use free of any charge by the natives, (as they were then more commonly referred to) to be allocated by the Alii and Faipule (village council) of each village within the Falealili district amongst its residents to use for their own benefit. In 1955 the village council of Salani granted the plaintiff permission to cultivate 1,000 acres for a period of 5 years; any land not cleared and cultivated at the end of 5 years shall revert to the village council. The Agreement signed by several matais of Salani reads:

LAND AGREEMENT

Salani, Falealili

Western Samoa

November 2, 1955

According to the custom of the Samoan people we, the Council of matai of the village of Salani, hereby grant to our native son, Vaiao J. Alailima, a portion of our village land under the following conditions:

1. For a period of five years our son shall have sole right to clear and develop one thousand acres of land lying immediately- north of a line running from the junction of the Fagatoloa River and the dry creek (Sauva’a) due west as far as Tasa Creek. At the end of this period land not developed shall revert to the Council of Matai.
   
2. Our son shall have exclusive right to the produce of this land for the period of his life time.
   
3. In event of the death of our son, his designated heirs shall have first preference to this land so long as it is kept in active use.
   

Counsel for the defendant objected to the admissibility of the written agreement on the basis that is it hearsay but the objection cannot be upheld and the agreement is therefore ruled admissible on the basis firstly that the agreement was between the village council and the plaintiff and secondly it was the same agreement which the plaintiff contended permitted him to clear and cultivate the land. At the end of 5 years the plaintiff had cleared 250 acres of land wholly within the 18,500 acres of Crown land and is delineated on plan 4225L as parcels 51 (128 acres, 3 roads, 18.4 perches) and parcel 52 (121 acres, naught roads and 11.4 perches). Since 1955 the plaintiff had developed plantation and a cattle farm on the said parcels 51 and 52. It is parcel 52 which is the subject of this litigation.

The plaintiff’s Claim

Plaintiff told the court that he hired workers from several villages to plant taro, banana, vegetables and cocoa and by 1957 he was the third largest banana exporter. He also raised cattle. In the mid 1980s, at the request of the defendant, the plaintiff granted to the defendant a right of way from the main road to the north of parcel 52, through parcel 52, to the defendants land at the rear of or southern boundary of parcel 52. At the time the agreement granting the right of way was signed the plaintiff believed that parcel 52 was customary land as evident from the agreement:

"WHEREAS the grantor has the pule over or otherwise entitled to the exclusive occupation of that customary land (my emphasis) situated in the District of Falealili being part of the grantor’s plantation called "lafulemu", (hereinafter called "the servient tenement") ... "

About 1984 or 1985 the plaintiff’s son who was running and managing the plantation and cattle farm left for American Samoa. He did not return. From then on the plantation was left idle, overgrown by weeds and bush and depleted of livestock. In the year 2000 or 2001 the plaintiff was told that the defendant has encroached onto parcel 52 and for two years the plaintiff tried to contact the defendant; he went to the defendant’s house at Alafua and left his phone number with the defendant’s wife but he defendant made no contact. In late 2003 the plaintiff commenced litigation against the defendant in the Lands and Titles Court. During the routine inspection of the land by an officer of the Land and Titles Court which confirmed the encroachment, the plaintiff told the court he was requested by the defendant to allow him to continue cultivating parcel 52; a request which the plaintiff declined. Litigation in the Lands and Titles court discontinued in January 2004 when the court discovered the land in question was not customary land.

In 2004 the plaintiff was conferred the title Fuimaono in Salani which meant that he could attend meetings of the village council. On the 9th August 2004 the plaintiff wrote to the defendant terminating the grant of right of way, ordered the defendant to remove from parcel 52 within 30 days any plants and fences, to stay clear of parcel 52 and to expect a claim for damages. By letter of the same date the defendant warned the plaintiff to stay away from parcel 52, keep the peace and amongst other things to proceed with his claim.

Some members of the village council who supported the plaintiff testified that the dispute between the plaintiff and the defendant was brought before their faction of the village council in November 2004 which resolved that the defendant surrender parcel 52 to the plaintiff, and when the defendant defied the wish of the council he was banished.

The defendant’s Claim

It is conceded by the defendant that he did seek the consent of the plaintiff to construct an access road through parcel 52 as he thought at the time that the plaintiff had a lease over the land although at the time there were no cattle and only coconut trees, shrubs and wild trees existed as the land has been abandoned. It is also conceded that since about 1989 he was told by the Salani land committee to use parcel 52 as he has not been allocated any crown land to farm and the plaintiff has abandoned the land. Since he moved onto the land in 1989 neither any matai nor any other resident of Salani interfered with his use of parcel 52 until 2003 when the plaintiff filed his petition with the Land and Titles Court. He did confirm that the other faction of the village council which supported the plaintiff met and fined the defendant but he never complied, and he was never banished, as the other faction of the village council supported him. By letter dated 6th September 2004 the defendant and some matai who supported him wrote to the Minister of Natural Resources and Environment as chairman of the government Land Board to notify that the crown land previous allocated to the plaintiff by the village council of Salani has been reallocated to other residents of Salani when the plaintiff abandoned the land 15 years previously and requested the Land Board to order the plaintiff to remove a building which the plaintiff has recently commenced to construct on parcel 51. Unbeknown to the defendant and his supporters the secretary of the Land Board had already written to the plaintiff on the 12th August 2004 not to cultivate, to cease construction, and remove his building from parcel 51.

Discussion

If the plaintiff is correct that when in 1955 the Village Council of Salani gave him 5 years to cultivate 1,000 acres, he hired people from several villages to clear and develop plantation and after 5 years he had developed 250 acres of plantation, it means that in the year 1960 the plaintiff had cleared and developed 250 acres as authorised by the village council in the written agreement. But the documentary evidence does not appear to support the plaintiff’s assertion and the authenticity of the so called agreement is accordingly questionable and should be ignored. Firstly the NZ High Commissioner to Samoa in 1956 wrote to the plaintiff on the 27th June 1956 offering to the plaintiff the lease of 250 acres within the 18,500 acres of crown land at Falealili. The letter reads:

27th June, 1956

Mr Vaiao Alailima,

"Lafulemu",

LOTOFAGA.

Dear Vaiao,

As a result of recommendations made by the Falealili Land Committee I am now in a position to offer you a lease of an area of some 250 acres. This area would be wholly within the 18,500 acres of land commonly known as the Falealili block.

The Survey Department is unable to survey this area for many months yet, but if you wish to take up the lease you will, I suggest, need to trace it out approximately for yourself.

The terms of the lease which I am prepared to offer are for 20 years with the first five years rent free, the lease to start from 1st January 1956; for the next 15 years rent would be payable at the rate of 4/- per acre upon the cultivated area and 8/ - per acre upon the uncultivated area. The term "uncultivated" is to mean "capable of being cultivated but not cultivated". At the end of the first term of 20 years the lease would be renewable at your option for a further period of 20 years at a rent to be fixed by agreement between the parties and to be based upon the unimproved value.

The total term of 40 years represent the maximum period of time for which it is lawful for me to grant any lease under the laws as they exist at the time.

The lease, which would be a newly registered lease giving you good and indefeasible title, would also contain such terms and conditions which are usual in long term leases of farming land.

With kind regards.

Yours sincerely,

HIGH COMMISSIONER

Secondly the plaintiff himself replied in writing on the 4th July indicating his willingness to sign the lease but with certain stipulations. Two of the stipulations proposed by the plaintiff were:

(i) That our lease not go into effect until other persons now developing Falealili grant land sign similar leases.

(ii) That funds received from leases of this land be specifically dedicated to the economic development of Falealili and be subject to annual public audit.

Not surprisingly no lease was signed and the plaintiff denied himself the status of a lessee of the land from then on. More importantly the two letters pointed squarely to the fact that the 250 acres earmarked for the plaintiff was identified in 1956 some 7 months after the so called written approval to the plaintiff from the Salani village council was signed in November 1955. It also meant that the plaintiff knew all along the land was crown land and not customary. Yet with that knowledge he not only described himself in the agreement granting right of way to the defendant through parcel 52 as:

".. . the grantor has the pule over or otherwise entitled to the exclusive occupation of that customary land situated in the District of Falealili being part of the Grantor’s plantation ..."

but he also lodged a petition in the Lands and Titles Court in 2003 to evict the defendant from his so called customary land. When he told the court in his testimony that 18,500 acres was gifted by the NZ government to the people of Falealili he was strictly speaking not telling the truth. His counsel in her written submissions contended that the New Zealand Administrator gifted the free use of the 18,500 acres to the people of Falealili. She attached to her written submissions extracts obtained from New Zealand Archives, copies of memorandums written by the New Zealand Administrators of the time, confirming free use of the land by the Falealili people. Mr Richardson in 1928 just prior to his return to NZ wrote to the Secretary of Native Affairs at Mulinuu that:

"... the natives of the Falealili Distrcit are to be informed that they can have the full use of the lands free of any charge and the Alii and Faipule of Falealili are directed to allocate these areas wisely and well to Matais and Tauleleas, so that each Samoan in that district has an area of land to cultivate for himself."

A number of correspondences between the Administrator who succeeded Mr Richardson in Samoa and the Minister for External Affairs in Wellington New Zealand resulted, concerning the possible misinterpretation by the natives of free use of the land to be synonymous with gift of the land. This led to the administrator leading a party to Falealili district to explain the gift of the free use of the land. By memorandum 23rd March 1931 he told his superiors in New Zealand:

"On Monday 16th March a party consisting of myself ... proceeded to Poutasi. ...

I was careful to use the phrase "the use of the land when making the gift; but I don’t think the Samoan can discriminate between a complete gift of the land and a gift of the use of it. ...

In order to protect all future requirements of land for public purpose, I put in writing certain conditions ... . I formed these conditions as carefully as possible, though in one or two respects I purposely left them somewhat vague; and I believe they afford sufficient protection for public interests in the future."

The conditions for the free use of the land were:

1. The control of the land and the decision of all questions connected with it remains with the Administrator.
   
2. Subject to the conditions herein contained the use of the land is given to the people of the Falealili District.
   
3. The district is to appoint a committee to advise the Administrator as to the disposal of the land and to assist him in his control.
   
4. The committee will advise what land is required by each village from time to time. Such land may be allotted to villages, and defined by compass survey when convenient and plans prepared of land allotted accordingly.
   
5. Land required for roads, educations, public health, recreation ... or for any other public purpose, are reserved by the Administrator and may be taken out of the land subject to this gift at any time, and whether before or after allotment. The Committee will advise as to such reserves being required whenever necessary.
   
6. In the case of any dispute or question of any kind arising as to the land or its use the Administrator may refer such dispute either to the High Court or the Land and Titles Commission at his discretion.
   

Counsel for the plaintiff submitted that the memorandum of 28th March 1928 by Mr Richardson to the Secretary of Native Affairs and the conditions drawn up in 1931 by Mr Richardson’s successor comprise a deed of trust with the Falealili Land Committee and the Government Land Board as the trustees and the people of Falealili as the beneficiaries. As the plaintiff is a native of Falealili and a recipient of 250 acres gifted for his use it follows that he has an equitable life estate in the land allocated to him. Other than references to pages 42,43,47 and 48 of Hinde, McMorland and Sim Land Law in New Zealand counsel could not identify any authorities in support of the submission. Counsel also drew attention to the conclusions and recommendations of a Commission of Inquiry appointed by Cabinet in 1973 to inquire look into the rights and justice of the claim by Falealili people that the 18,500 acres of land was given to them by the New Zealand Administration. Some of the conclusions of that Commission of Inquiry have been adopted by counsel for the plaintiff in her submissions.

The commission of Inquiry for instance considered the six conditions given by the New Zealand Administrator to the people of Falealili for the use of the 18,500 acres, and it concluded that it could be construed as a declaration of trust. The Commission went on to say under conclusion seven:

"Furthermore the policy statements of and the dealings in relation to the said lands and the Falealili Land Committees by successive Administrations prior to Independence would tend to support the contention of an implied trust under which the lands were held by the government for the benefit of the Falealili District upon certain defined conditions.

The commission of Inquiry then proceeded on to conclusion eight:

"The commission has not had argued before it the legal position regarding the suggested trust and does not feel obliged to make any ruling thereon. Since there is no definite term expressed for the enuring of the trust it is possible that strictly in law it may be considered invalid. Even if legally the trust is questionable successive Administrators prior to Independence have seemingly acted in various ways since its creation which would give the Falealili people strong moral grounds (if not legal grounds) for claiming the rights of beneficient interest in the said lands".

The submissions of counsel and the conclusions of the Commission of Inquiry call for comments. In the first place there were a lot more documentary materials and evidence before the commission upon which it made its conclusions. Those documents, materials and evidence are not before this court. Members of the Falealili Land Committee also appeared before the commission. Secondly the conclusions of the Commission remain as such, are not binding, and in any event the commission did not conclusively state there was a declaration of trust. Thirdly the materials upon which counsel for the plaintiff rely to support her submissions were not given to the court during the hearing to enable the opposing party to view and comment on them. Fourthly the pleadings in the Statement of Claim did not suggest that the plaintiff was relying on beneficial interest resulting from a trust; in fact the plaintiff and the matais of Salani who supported him did not suggest in their evidence that they had beneficial interest in the land. Their testimonies were limited to the pleadings in the statement of claim, namely the dispute between the plaintiff and the defendant over the use and occupation of parcel 52 and the steps and role taken by their faction of the village council to resolve the dispute in favour of the plaintiff.

In my view the plaintiff personally cannot claim beneficial interest from a trust or as his counsel puts it, an equitable life interest, for very obvious reasons:

(i) In 1956 the NZ High Commissioner wrote to the plaintiff offering a lease of the 250 acres on recommendation by the Falealili Land Committee.

(ii) In 1977 the Secretary of the Government Land Board in response to the plaintiff’s written request, wrote to the plaintiff to confirm the 250 acres allocated by the 1956 Land Committee. It also advised the plaintiff that the present Falealili Land Committee and the Land Board have endorsed the lease of 250 acres.

(iii) In 1988 when the plaintiff granted written permission to the defendant to construct a right of way through the disputed land, he as the grantor is described as:

"WHEREAS the grantor has the pule over or otherwise entitled to the exclusive occupation of that customary land".

(iv) In August 2004 the secretary of the Land Board by letter told the plaintiff to dismantle his newly constructed house from the land.

On the materials and evidence before the court I cannot conclude that the memorandums by the administrations can be constructed as a declaration of trust; indeed, I reject counsels argument that both the memorandum by Mr Richardson of the 28th March 1928 and the conditions of the free use of the land drawn by his successors in 1931 constitute a deed of trust. Both documents are plainly devoided of the indicia of a deed although it is accepted that a document does not have to be expressed as a deed to have the force and effect of a deed. Re Wilson’s Settlement (1972) NZLR 13.

The memorandum by Mr Richardson of the 28th March 1928 giving the Falealili people full use of the lands free of any charge was not a transfer of the ownership of the land to the people of the Falealili district, it could not on its own be construed as a declaration of a trust; it was a transaction in the nature of a licence to use the land. This was also the conclusion of the Commission of Inquiry. But there were obviously other materials before the Commission which were not available to this court which led the commission to conclude that the Falealili people were of the belief that the land was given back to the district of Falealili as an absolute gift or at least that there could be a possibility of an implied trust under which the lands were held by the administration and subsequently by the government of Samoa for the benefit of the Falealili District. Counsel for the plaintiff has pursued this conclusion and argued that whilst the legal ownership is vested in the government, the gift of the use of the land is in the nature of a trust with the Falealili Land Committee and the Government Land Board as the trustees for the benefit of the people of Falealili. Counsel is in effect seeking an order declaring the government, the legal owner, a trustee of its land for the people of Falealili when the government is not a party in this action.

It will be unfair and unjust to determine whether the government is a trustee of its own land for the benefit of the people of Falealili in the absence of representation of government in this action. Similarly it will also be unfair and unjust to the other residents of Falealili to be denied the right to claim as prospective beneficiaries under a trust in a claim filed and litigated upon without their knowledge and representation if I determine in these proceedings that the giving of the lands to the people of Falealili by the New Zealand administration and the conditions imposed upon the giving do not amount to a declaration of trust. In the circumstances I shall refrain from making that determination and leave those to be determined at a future time if and when appropriate proceedings are filed and litigated upon. I shall limit my ruling on the pleadings and evidence given in this litigation.

In this action the plaintiff’s cause of action against the defendant rests solely on the 1955 agreement with the village council of Salani which not only granted him authority to clear and develop the land but also gave other stipulations for the benefit of the plaintiff namely:

(a) the plaintiff shall have exclusive right to the produce of the land for the period of his lifetime; and
(b) in the event of his death, his designated heirs shall have first preference to this land so long as it kept in active use.

I have for reasons already given questioned the integrity of that agreement. Nonetheless it is not disputed the plaintiff since 1955 occupied and developed a plantation on 250 acres of crown land including the disputed land which he later abandoned on or about 1985 and attempted to re-enter after 2001 when he was told the defendant was occupying part of the disputed land. After cyclones Val and Ofa in 1990 and 1991 the plaintiff was interested in organic farming and had hoped to utilise the abandoned land for the purpose. It was ideal for organic farming as he mistakenly believed that the disputed land had been unworked for a number of years and the chemical content of the soil would therefore have diminished. But that was not the case because I accept that the defendant was told by the Salani land committee to use the abandoned land. I reject the evidence, given by those who supported the plaintiff that although the plaintiff abandoned his plantation in 1985, members of the plaintiff’s family were living on the land. In the first place the plaintiff himself told the court no one lived on the land after his son left in 1985 and in any event there was no building on the disputed land; and further more if members of the plaintiff’s family were living on the land, or living nearby and keeping a watch on the land, the plaintiff would have discovered well before 2001 that the defendant was occupying the disputed land.

Counsel for the defendant submitted that the plaintiff’s use of the land since 1955 was that of a licence and the relationship between the plaintiff and the Alii and Faipule in law is one of licensor and licensee. I tend to agree with that view. But again if I were to determine the issue of licence and conclude that the plaintiff is a licensee it will tantamount to denying the existence of a trust. I will accordingly refrain from making that determination.

The plaintiff’s claim proceeded on the basis that 18,500 acres was gifted outright to the people of Falealili and in turn the village Council of Salani gave him 250 acres for life. Both premises are false and the claim to a life interest in the disputed land based on the false premises cannot be sustained. I do not accept that in year 2000 or 2001 when the plaintiff was told that the defendant was developing a farm on the disputed it took him two years to look for the defendant before deciding to lodge his claim with the Lands and Titles Court. There were obviously other reasons which delayed lodging his claim. Naturally he would have first sought the assistance of the authority which placed him onto parcels 51 and 52 in the first place. A two year delay to look for someone when his place of residence and plantation lands are both known to the plaintiff lacks credibility. To refer to himself in the 1988 Agreement granting right of access to the defendant, as having the pule over the customary land, and to lodge a petition in Lands and Titles Court in 2003 under the pretext that the land is customary did very little to enhance his credibility. I reject his evidence that the defendant admitted encroaching and that he declined the request by the defendant to continue to work on parcel 52.

Conclusions

1. In the circumstances the issue of whether the giving of the 18,500 acres to the people of Falealili upon several conditions for use free of rent constitute a trust cannot be determined in these proceedings for reasons already given.
   
2. Similarly the issue of whether the plaintiff occupied the land on the basis of a licence should not be determined either.
   
3. The plaintiff’s claim that 18,500 acres was gifted to the people of Falealili cannot stand and is rejected.
   
4. The 1955 Land Agreement which the plaintiff said authorised him to clear and develop plantation on part of the 18,500 acres, is rejected for reasons already given.
   
5. The plaintiff abandoned the disputed land in or about 1985.
   
6. The defendant and others were authorised by the Salani Land Committee in 1989 to work on the disputed land and other land previously worked by the plaintiff.
   

Order

(a) Judgment for the defendant.

(b) Plaintiff to pay defendant’s costs of $2,500.

JUSTICE VAAI

Solicitors
Drake & Co for plaintiff
Toa Law for defendant