IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

PATOSINA REEDof Papauta, Retired,
AFAMASAGA DAN BETHAM of Potoga, Retired,
BURTON KIUPI BETHAM of Wellington, New Zealand, Retired,
MARK EVERETT BETHAM of Lotopa, Managing Director,
CHERITH SULA RENNER of Auckland, New Zealand, Housewife and
ELON PILIOPO BETHAM of Tulaele, Valuer
Plaintiffs

AND:

VITOLIA MATAILIGA
of Matautu-uta, Domestic Duties
First Defendant

AND:

MAKERITA LOIA
of Matautu-uta, Office Worker
Second Defendant

AND:

ELENA LAULUA of California USA, Retired,
OTA MAIAVA of Melbourne, Australia,
FAAFOA TUALA of Auckland, New Zealand and 
SITUPE AKELI OF Auckland, New Zealand
Third Defendants

Presiding Judge: Justice Slicer

Counsel: S Leung Wai for plaintiffs
 T Toailoa for defendants

Hearing: 29 June and 9 July 2010
Written Submissions: 20 and 27 July 2010
Judgment: 13 August 2010

JUDGMENT OF SLICER J

1.	The plaintiffs are the registered owners in fee simple of land comprising 2a 23p at Matautu. Two other persons registered as owners are deceased. The defendants are members of the same extended family. The land had been previously owned by Situpe, the matriarch of that family. Situpe had been born in 1880 and during a productive and illustrious life been married to or a partner of five husbands. She had many children, some of them adopted, and grandchildren. The land was the home of members of the family, some of whom were born or resided there, while others would visit or stay over varying periods of time. Situpe, as matriarch managed the land deciding where fales could be built, who could live where and generally making decisions as to its use. Situpe married for the last time in 1949 but no children were born of that union. Some or all of the defendants, descendants of Situpe, had lived on the land at times and some of their children continue to live there as family members. The defendant Elena is the only surviving child of Situpe and the remaining defendants other than Lopusi, who was raised, but not adopted by Situpe, are her grandchildren.

2.	Situpe made and executed her will on 29 September 1962 when she was 82 years of age. She appointed the Public Trustee as her executor and bequeathed her real and personal estate to her oldest daughter Ota Betham, the mother of the plaintiffs.

3.	Situpe died on 8 February 1964. Ota Betham died on 10 September 1967. A probate order of the will was made by the court on 1 September 1998 and title registered in the name of the Public Trustee on 20 July 1999. Title was then transferred to Masoe Betham, the administrator of Ota's estate and Letters of Administration sealed on 4 September 2000. On 20 October 2000, the administrator conveyed, by deed, the land to the plaintiffs and their now deceased siblings. On 25 October 2000, Matalena Sioa, Ota's half sister lodged a caveat protecting her claimed beneficial interest in the land. The learned Chief Justice ordered the removal of that caveat for reasons stated in his judgment delivered on 4 July 2002.

HISTORY OF PROCEEDINGS

4.	In 2002, the plaintiffs offered the first and second defendants a lease over those portions of the land which they occupied for a 20 plus 20 years at a nominal rent of $1.00 per year. The defendants rejected the proposal. Notice to vacate the land to take effect from 24 February 2003 was given on 20 December 2002. There had been a dispute over the proposed erection of a machinery shed or workshop by one of the plaintiffs which had resulted in the arson of one of his vehicles.

5.	The plaintiffs commenced these proceedings by Ordinary Summons and Statement of Claim on 31 March 2003. The plaintiffs sought orders against the first and second defendants, for possession, injunctive relief and damages. The defendants joined the third defendants as parties to the action and counterclaim. There followed the inevitable amendments of pleadings, strike out motions, leave applications and the like thereby prolonging the resolution of the substantive issues. On 19 January 2005, the learned Chief Justice dismissed the plaintiffs' strike out motion of the defendants' counterclaim (Reed v Matailiga [2005] WSSC 1). The strike out motion had sought dismissal on the grounds of abuse of process, res judicata and issue of estoppal. In doing so, His Honour struck out that portion of the defence to the action claiming that the land was held by customary title. He reserved for future judgment matters relating to the interpretation and validity of the Samoa Land and Titles Protection Ordinance s.80, and it is not necessary for this court to further consider those issues.

ISSUES RAISED ON THE PLEADINGS

6.	The plaintiffs claim the remedies of possession, damages and injunctive relief as legal and registered owners of the land. At trial they quite understandably modified their claims for remedy. They now seek a declaration of ownership and instead of eviction they will, if successful, enter into an agreement permitting the defendants who presently occupy the land to remain in residence.

7.	The defendants claim:

(1)	 that the will was invalid

(2)	 the failure to obtain probate within the prescribed period rendered the subsequent transfer and dealings with the land nugatory

(3)	 a declaration that Situpe died intestate

(4)	 the estate of Situpe held the land on trust in their favour and each is entitled to their respective share

(5)	 each has an equitable interest through proprietary estoppal and/or unconscionability

(6)	 eviction would unjustly enrich the plaintiffs

(7)	 the claim is statute barred

8.	Although not pleaded specifically the combined effect of the above (5) and (6) requires consideration of whether their own development and money expended created an equitable entitlement.

VALIDITY OF WILL

9.	The defendants claim that the will was rendered null and void since no probate had been granted within the prescribed time. In the original caveat proceedings the first and second defendants based their claim on an alleged fraudulent conveyance by the administrator of the estate of Ota Betham (Reed v Matalena [2002] WSSC 4 July 2002). There was no claim that Situpe's will was invalid by reason of statute. This basis, as pleaded, is not supported by authority or the principles of statutory interpretation. The basis is rejected.

10.	At trial the defendants concentrated on testamentary capacity, specifically Situpe's age and its effect on the mind. The will was executed in proper form. The learned author of Dobbes Probate and Administration Practice (5th ed.) provides many examples of valid testaments by persons in their old age. The court received into evidence the affidavit of Ms. Rachel Isaac sworn on 18 November 2004, an intended witness who had died before trial (Fagalei Investments Limited v Ipuinuese Schmidt and others [2010] WSSC 6 July 2010). The affidavit showed that Situpe had come, with Ota's daughter to the office of Reginald Phillips, a senior practitioner but saw him alone. She gave instructions and Philips dictated it for typing by Ms. Isaac. Situpe returned the following day and again saw Phillips alone. Ms. Issac was summoned and the will read over to Situpe. Phillips asked Situpe if she had any questions or wished to make any changes. It was then executed and witnessed. The will was in standard form and provided that after the payment of debts and funeral expenses;

"…all the rest and residue of my property both real and personal unto my daughter Ota Betham wife of Henry Betham of Matautu-uta aforesaid Manager for her own use and benefit absolutely."

11.	The criticism by the defendants that Issac, by her name might have been an outsider and unable to understand what was being said is rejected. Absent fraud, the fact that the will was read over to a capable testator at the time of the execution is conclusive or at least compelling evidence that the testatrix knew and approved of its contents (Donnelly v Broughton [1891] AC 435; McBride v Public Trustee [2010] WSSC 6 July 2010).

12.	The terms of the will were clear and unequivocal. There is no evidence of fraud or oppression. The witness Dan Betham gave evidence that he had spoken with Situpe many times during the period when the will was made and found her to be lucid and thoughtful. Lopusi Saia'ana gave evidence that Situpe had often spoken of the land and that 'her mind was good about the land' and was clear about the boundaries of the land. He said that she was sick but clearly recognised him. The court accepts that the will, already proven, was made by a person fully aware of what she was doing.

13.	Situpe was the matriarch. Ota was her eldest daughter. As Situpe got older it was Ota who took on more of the family responsibilities. Situpe used Ota both as her family member to pass on decisions and allowed her to use her own knowledge and common sense to maintain the family. She relied heavily on her daughter to carry out her instruction and to educate her younger siblings. Ota cared for her in her declining years. In later years Ota became the primary carer and confidante who had stayed on the property while others began to live their own lives. Ota would become the new matriarch. Further, it would make little sense to bequeath the property to all her children in equal shares. Such would result in its sale and/or division. For the above three reasons, Situpe's decision made good sense, and until these proceedings, those decisions maintained family unity and coherence.

14.	The will was made by a competent testatrix, in proper form and without fraud or improper influence by others.

LEGAL OWNERSHIP

15.	None of the subsequent dealings with the land have been shown to be unlawful. Transfers by the Public Trustee and Ota's administrator have been made in accordance with law. Registration of the Deed of Conveyance on 18 November 2000 conformed with statutory requirements. The effect of that conveyance was to pass the legal title to the plaintiffs and the estates of their siblings. The plaintiffs and the estates of their siblings are the legal owners in fee simple of the land comprised in Certificate of Title Volume 37 Folio 251 of the Land Registry of Samoa as described on Plan 3585.

TRUST

16.	The defendants contend that the will itself and the circumstances of its making created a trust for the benefit of the family. Situpe might have chosen the bequest to Ota as a vehicle for preserving the property as a whole for the benefit of her children or the family as an extended unit, into the future. But that desire does not create a trust. If she had done so the vehicle would have offended the Rule against perpetuities an entrenched doctrine by common law and statute, having its foundation in Shelley's case (1581) 1 Co. 93. The Rule applies to both deeds and wills, legal and equitable interests alike. The disposition of property, subject to the uncertainty of indefinitely postponed vesting, prevents the creation of a trust for an indefinite future or indeterminate of persons (see generally: Halsbury (3rd ed.) Vol. 39, Wills Sect. 3; Williams on Wills (6th ed.) Vol. 1, Ch 1 697-703; Delpont & Chalmers, Equity and Trusts in Australia (3rd ed.) 18.50-18.65). Here no family member other than those alive at the time of the execution of the will or making of an express trust could come within a trust unless specific provision was made in the will for a person born within 21 years of the death of the testatrix. Application of the Cy-prés doctrine does not achieve the result sought by the defendants (see generally: Morice v Bishop of Durham (1804) 32 ER 656).

17.	 The more narrow approach would confine any claim to the immediate descendants of Ota. Their claim would be precluded by the provisions of the Limitation Act 1975 s.19 (2).

18.	There is a more fundamental objection to the defendants' claim. The essence of a trust is the obligation of the holder of a legal or equitable interest in property, recognised and enforceable in equity to hold that interest, not for his or her own benefit but for the benefit of another. In this case, it is for the defendants to establish either that:

(1)	 Situpe herself was a trustee, or;

(2)	 she created a trust through the Public Trustee.

19.	There is no suggestion that Situpe acquired or held title as a trustee. There is insufficient evidence to show that she created a trust in herself during her life time. She cared for her progeny. She allowed people to come and go as residents or visitors. She had cared for those in need. But she retained control of her land. She determined who could reside and where they could build or remain. She acted as a matriarch within her culture in the sense described by the learned Chief Justice in Letele and others v Moli Filia and others [2009] WSSC 82 at 54. Acceptance of a family or moral responsibility remains just that; it does not create an equitable and enforceable trust (Will of Warren [1907] VLR 325).

20.	The court accepts the defendants' contention that while a trust may be inferred when the parties intended to create an interest in a third party, the court must be satisfied that the settler intended to create an express trust (Bahr v Nicolay (No.2) (1988) 164 CLR 604). The evidence does not show that she intended to create an obligation that all of her surviving children were entitled in equity to share in the land. There is no doubt that she loved of her children, natural or adopted, but in her wisdom she bequeathed her property, spiritual and temporal to her oldest surviving daughter.

21.	The court accepts the evidence that in approximately 1959, a family gathering occurred at which Situpe spoke about the land and family. The court accepts that Situpe decided the placement of fales and other matters concerning the use of the land. But in doing so she did not create a 'secret' trust as claimed by the defendants. She neither specified any intended beneficiaries nor limited the class of persons who might benefit. A general wish to benefit an indeterminate group in perpetuity could not constitute a trust, secret or otherwise.

22.	In Brown v Pourau [1995] 1 NZRL 352, a case relied upon by the defendants, Hammond J examined the law relevant to the establishment of 'secret' trusts. In doing so he adopted the principle stated in Re Snowden [1979] Ch 528 that where the beneficiaries were unascertainable, the secret trustee could not take beneficially. Ota had not been charged as a 'secret' trustee in the 1959 meeting nor were the beneficiaries ascertainable. A similar problem arises in relation to the proposition that her children were the intended beneficiaries. Were all of her natural children alive, and if deceased, their children to be beneficiaries of the trust? Were children, natural born, adopted or taken care of to be the holders of title? Was it a 'secret' trust in the same sense of Brown if it was stated to the assembled family? The cautionary note stated by Callan J in Ace v Guardian Trust and Executors Co Ltd [1948] NZLR 103 referred to in Brown is apposite (see generally: Voges v Monaghan (1954) 94 CLR 231).

23.	There is no trust, secret or otherwise, express or implied over the land.

EQUITABLE ESTOPPEL AND UNCONSIONABILITY

24.	The defendants' pleading claims the defence of proprietary estoppel more commonly called equitable estoppel. The term includes estoppel by agreement, laches and 'unclean hands.' The defences may be pleaded in response to an action for breach of fiduciary duty. Neither Situpe nor the plaintiffs owed a fiduciary duty to the defendants. In Breen v Williams [1996] 186 CLR 71, the High Court rejected the Canadian position that parents have fiduciary duties to their children. Following that decision the Full Court of the Federal Court of Australia was required to consider whether the operation of fiduciary law enabled a party in a civil claim for sexual assault to circumvent limitation statutes. In Paramasivam v Flynn (1998) 1960 ALR 293, the court rejected the argument of fiduciary duty since the action was in tort not equity. The court stated at 218:

"In Anglo-Australian law, the interests which the equitable doctrines invoked by the appellant, and related doctrines, have hitherto protected are economic interests…in cases usually classified as involving fiduciary obligations not to allow interest to conflict with duty, the interests protected have been economic…Equity, through the principles it has developed about fiduciary duty, protects particular interests which differ from those protected by the law of contract and tort, and protects those interests from a standpoint which is peculiar to those principles."

25.	Assuming that the plea is that the plaintiffs consented to or permitted the defendants to remain on the land the same argument applies.

26.	In Woodhouse AC Israel Cocoa Ltd SA v Nigerian Produce Marketing Co. Ltd [1972] AC 741 Lord Hailsham predicted at 758;

"…the time may soon come when the whole sequence of cases based on promissory estoppel…may need to be reviewed and reduced to a coherent body of doctrine by the courts."

27.	The English position remains unclear (First National Bank v Thompson [1996] Ch 231 at 236; Republic of India v India Steamship Co Ltd (No.2) [1998] AC 878 at 914; cf National Westminster Bank plc v Somer International (UK) Ltd [2003] 3 WLR 64 at 80). In Johnson v Gore Wood [2002] 2 AC 1, Lord Goff suggested at 41 that unconscionability provided the link between the circumstances capable of giving rise to an estoppel.

28.	In Australia the High Court has accepted a doctrine incorporating both common law and equitable forms of estoppel by conduct arising out of a representation or mistaken assumption of a future state of affairs or conduct (Walton Stores (Interstate) Ltd v Maher [1988] 168 CLR 387, Deane J at 475; Foran v Wight [1989] 168 CLR 385, Mason CJ at 430, Deane J at 434; Commonwealth of Australia v Verwayen [1990] 170 CLR 394).

29.	Situpe permitted members of her family to reside or stay on the land but made no representation that every member would receive a bequest or that their children could remain indefinitely. She was entitled, in law and equity to sell it if she chose. Equally she was entitled to bequeath it to a person of her choice. The same may be said of Ota. She made no representations that her ownership was other than that. She permitted occupancy of portions of land by family members which included the plaintiffs, by licence. Her conduct did not give rise to an assumption of a future or indefinite state of affairs.

30.	The plaintiffs continued to allow family members to reside or stay on the land. But there is no evidence that they did so other than by licence (Letele v Filia [2009] WSSC 82). The plaintiffs offered the defendants a lease which the defendants rejected. When their offer was rejected the plaintiffs took steps to protect their interests.

31.	A court exercising equitable jurisdiction is required to consider a plea of laches in analogy to the statute (Knox v Gye (1872) LR 5 HL; The Crown v McNeil (1922) 31 CLR 76; Motor Terms Co Pty Ltd v Liberty Insurance Ltd (1967) 116 CLR 177). The claimed defence of laches as against the plaintiffs cannot succeed. Assuming that the defendants' rejection of the lease terminated the existing licence, there is no limitation period between that date and the statutory requirement.

COMMENCEMENT OF THE ACTION

32.	The plaintiffs do not come to the court with 'unclean hands' (Myers v Casey [1913] 17 CLR 90; Unilever pic v Cussons (New Zealand) Pty Ltd 1977 1 NZLR 433). 

UNCONSCIONABILITY

33.	A remedial constructive trust may be imposed upon proof of unconscionable conduct in the form of an assertion to, or denial of an equitable interest in property (Baumgartner v Baumgartner (1987) 164 CLR 137; Muschinski v Dodds 1985 160 CLR 583). The defendants have made no financial contribution to the purchase of the land. It was not unconscionable for Situpe to bequeath her property to her eldest surviving daughter who had lived with her throughout her life time. The plaintiffs have done nothing other than to inherit their mother's estate and to permit continued occupancy by Situpe's grandchildren. Eight of the third named defendants live outside Samoa. At best the defendants can claim that they contributed to the costs of erecting fales for their own or their children's use, and in doing so enhanced the value of the property. That would not constitute unjust enrichment.

34.	The court will not preclude the remedy sought by the plaintiffs through this claimed defence.

LIMITATION

35.	The plaintiffs' claim is not barred by statute. The commencing date for the limitation period was not that of Situpe's death. Ota was her child and continued to live on the land. On the defendants' premise Ota would be barred from claiming possession of her own piece of land because she had consented to the defendants' continued occupation. Situpe died in 1964 and the question of entitlement was not raised until 2003 or at least the date of the caveat. The plaintiffs then commenced their action within the limitation period. This defence ought to fail.

COUNTERCLAIM

36.	Matalena Sioa lodged a caveat on the title to the land in October 2000, in which she claimed an equitable interest as a beneficiary of Situpe. No claim was made for a right acquired through adverse possession. Even if the licence granted by Situpe was terminated upon her death (Terunnanse v Terunnanse [1968] AC 1086) it was renewed by Ota, or given the delay in the grant of probate her executor. The Public Trustee transferred the interest in the land to the administrator of Ota's estate on 7 May 1999. The pleading suggests a misunderstanding of the concept of title by possession. The concept is simply that a claimant can show that no other party has better title than he or she because of limitation. Where title passes through sale or death, the claimant must prove better title as against the successor or transferee. If a claimant already has an equitable interest the outcome might be a resulting trust but that is a different concept than acquisition through adverse possession. Here the earliest date from which a limitation claim could be made would be 20 October 2000, the date of transfer to the plaintiffs.

37.	Even if that were not the case, the defendants would nevertheless fail in their claim of title through adverse possession.

38.	The caveat was removed by order of this court on 4 July 2002.

39.	The defendants are required to prove to a high standard that they have had a sufficient degree of physical custody and control and during that period had an intention to exercise that continued possession for their own benefit to the exclusion of all others or at least the holder of title (Powell v McFarlane (1977) 38 P & CR 452; JA Pye (Oxford) Ltd v Graham [2002] UKHL 30). There must be factual possession (Letele v Filia, supra).

40.	Lopusi Saia'ana gave evidence both as and on behalf of the defendants. He emigrated to New Zealand. He said that at the time Ota, Anevili, Matalena, Paselio and Togamau (Situpe's all children) were residing at the property. There were 4 fales erected on the property at and any possible claim could only have been made to that portion of the land on which the fales were placed. All have since died. There is no evidence that Elena had continued to live at Matautu. Saia'ana described a family arrangement akin to that identified by the learned Chief Justice in Letele v Filia (supra). Saia'ana himself had not been adopted and is not a beneficiary. There is no evidence that Elena, the first named defendant of the third defendants has lived on the land or if so the period occupied. The remaining defendants are Situpe's grandchildren and there is no evidence of the periods during which they occupied the land adverse to Ota, her executor or the plaintiffs. Makerita, the second defendant is still alive but again there is no evidence as to her occupancy.

41.	There is no evidence to establish occupancy adverse to the plaintiffs by any of the defendants for a period of 12 years prior to the date of the commencement of the action.

42.	The claim must fail and the counterclaim dismissed.

CONCLUSION

43.	The plaintiffs are the legal and equitable owners of the land in fee simple. The defendants are not entitled to a declaration of title through adverse possession. At trial, the plaintiffs withdrew their claim for an order of possession. They did so presumably in the interests of family harmony. But the defendants should understand that any continued occupancy by their family members is with the permission of the plaintiffs. They remain licencees not tenants. Their licence is revocable.

DECLARATION

44.	The court declares that the plaintiffs and the estates of their siblings entitled as the heirs of Ota Betham are the legal and equitable owners of the land at Matautu registered in Volume 37 Folio 251 delineated on Plan 3585.

ORDERS

1)	The counterclaim is dismissed.

2)	The parties have liberty to apply for consequential orders.

JUSTICE SLICER