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Alii and Faipule of Laulii v Trustees of the Estate of Jacob Helg [2011] WSSC 48 (10 June 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU


CP 138/04


BETWEEN:


THE ALII & FAIPULE OF LAULII
whose names appear in the schedule hereto.
Plaintiffs


AND:


RAMONA ASH and PATRICK BRIGHOUSE
as Trustees of the estate of Jacob Helg, deceased, and
EMILY HELG as Administrator of the estate of Fritz Helg, deceased,
and LAUOFO METI PROPERTIES LIMITED, a private company.
Defendants


Presiding Judge: Justice Slicer
Counsel: T Toailoa for the plaintiffs
P Fepuleai for the first and second-named defendant
K Kruse for the third-named defendant
P Meredith for the fourth-named defendant


Hearing: 20, 21, 22 and 29 October 2010
Written Submissions: 12 and 25 January 2011
Judgment: 10 June 2011


JUDGMENT OF THE COURT


  1. The Plaintiffs, as the Alii and Faipule of Laulii, seek the return of land within their village to customary title. The Defendants in their varying capacities maintain that the land is held by private title recognised by the Constitution and not subject to alienation except by sale inheritance or gift.
  2. There remain secondary issues including claims of title through estoppel or adverse possession. The Plaintiffs to their detriment have resisted, some of whom having used violence, attempts to survey the questioned land. Some villagers used violence to prevent surveyors from identifying land which might have the subject of a claim of adverse possession. Despite a formal warning by a Supreme Court Justice of Samoa some villagers continued with their threats of violence against the surveyors. Indeed the Court received information that violence would be employed against a Judge of this Court if he attempted to visit the land, for a second time, to identify portions of land which might be awarded through adverse possession to the village.
  3. Those who used or threatened violence have harmed themselves and their village. The village might have regained a portion of the land but for their conduct. They challenged the law of Samoa because of self-importance and illegal use of violence. In doing so they harmed their own interests and those of their families, children and grandchildren.
  4. Responsibility for this harm belongs to the Alii and Faipule of Laulii together with the Pulenu'u or as now called the Sui-o-le-Nuu. They did nothing to prevent the violence or looked seaward when it happened or was threatened.
  5. The result is that the Plaintiffs chose to argue their case on 'all or nothing.' That was an unwise decision.
  6. The land in question is rich and valuable. It is also part of the history of Samoa. It was on this land, at the river, where the villagers of Laulii came to the assistance of the warriors of Malietoa in their contest with the warriors of Mata'afa.

History of Land and Transactions


  1. The Court received oral testimony of the history of the land to supplement the documentary evidence of title. That course is permitted especially since Samoa had no written language or documentation before European contact. It also had regard to the valuable doctorate dissertation of the learned author Dr Asiata Vaai (The Rule of Law and The Faamatai (1995)) in its understanding of the land's history and its surrounding circumstances. But the Court remained mindful that it was not conducting its own inquiry. It was and remains the responsibility of the Plaintiffs to prove their case on the balance of probabilities. It was and remains the responsibility of the Plaintiffs to provide accurate and credible evidence in support of their claim. In its dealing with evidence based on oral history the Court is required to have regard to the qualifications of the witnesses, consistency with other sources, in accordance with known customs and the like. Mere assertions are insufficient. The Court must also acknowledge that there may be differences of custom and tradition between groups within the same wider geographical area.
  2. The disputed land comprises 90 acres as described in Court Grant 742 and registered in Volume 4 Folio 115 of the Land Register of Samoa. The history of transactions relevant to these proceedings are:

Parties and Pleadings


  1. Ramona Ash and Patrick Brighouse are trustees of the estate of Jacob Helg, Emily Helg is the administratix of the estate of Fritz Helg and Lauofo Meti Properties Limited, a corporation operating portion of the disputed land.
  2. The Plaintiffs plead:

"(a) The Plaintiffs and their predecessors have had continuous and uninterrupted occupation of the disputed lands for hundreds of years;


(b) In the exercise of their occupational rights including the constructions of permanent homes, burial of the dead, cultivation and farming, selling of scoria to road construction companies etc, there was never any reference to the defendants or having to seek their consent at all;

(c) The occupation and use of the disputed lands by the Plaintiffs have been open and manifest and exclusive;

(d) That on a number of occasions the Helgs were duly informed by authority of the Chiefs and Orators of our village that they have no right over our land and are not permitted to set foot on our land."
  1. The Defendants deny the allegations and in particular plead:

"8 That the Plaintiffs ever having title to the said lands as the said lands were owned by certain matais who held 'pule' over it.


9 That the fourth defendant denies that the boundary line of Atua and Tuamasaga lies to the east of the said lands. The said boundary dissects the said lands approximately 1/3 Atua and 2/3 Tuamasaga.


12 That the said lands were occupied by the Helg family including a son of Fritz Helg since occupying legal title to it. The defendants made several attempts at survey, apart from, the original survey confirmed by Court Grant 742 but were threatened by villagers at Laulii village.


14 That the said lands are freehold and the plaintiffs claim is therefore statute barred."


  1. The Defendants claimed damages by way of Counterclaim for trespass and loss of royalties resulting from the excavation and sale of rocks and scoria from the land.

The Issues


  1. The Plaintiffs, by their pleadings raise the following issues:

Onus of Proof


  1. The Defendants are the registered owners of the disputed land. The Plaintiffs retain the onus of proof. The action is civil and the test is that of the balance of probability. But the Statement of Claim paragraphs 4 and 5 alleges:

"4 That the original conveyance from the aforesaid Tofaeono and Segi to Jonas M. Coe was fraudulent as the said Tofaeono had no right, interest or claim whatever in respect of the disputed land and, therefore, had no right to alienate the disputed land.


  1. That the title passed from the aforesaid Tofaeono and Segi to the aforesaid Jonas M. Coe being fraudulent was therefore null and void defeasible by the title of the true owners, the Alii and Faipule of Laulii."
  2. The standard of proof in cases involving a serious consequence remains that of a civil case, though the gravity of the issues must be borne in mind (Lek v Matthews (1927) 29 LI LR 141 (HL); Nischina Trading Co. Ltd v Chiyoda Fire and Marine Insurance Co. Ltd [1969] 2 Q.B. 449 and Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517). The traditional statement of principle is as stated by Latham CJ in Briginshaw v Briginshaw [1938] HCA 34; (1930) 60 CLR 336 when he said:

"The standard of proof required by a cautious and responsible tribunal will naturally vary in accordance with the seriousness or importance of the issue: 'Men will pronounce without hesitation that a person owes another £100 on evidence on which they certainly would not hang him, and yet all the rules of law applying to one case apply to another and the processes are all the same."


and Dixon J.


"...Reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of the given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to be reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of the kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency...It is often said that such an issue as fraud must be proved 'clearly', 'unequivocally', 'strictly' or 'with certainty'...This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which is a civil case may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues...but, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected."


  1. The Court will apply the civil standard in the light of those statements.
  2. A Court is permitted to refer to matters of public history to works of authority (Read v Bishop of Lincoln [1892] UKLawRpAC 40; [1892] AC 644) where Lord Halsbury in the course of his speech in the Privy Council said at 653:

"Where it is important to ascertain ancient facts of a public nature, the law does permit historical facts to be referred to."


But there are limitations.


  1. I am required to apply principles and statements of law as determined by the Court of Appeal. In this case the relevant cases are those of Sia'aga v O.F. Nelson Properties Ltd [2008] WSCA 14; Alii and Faipule of Siumu District v Attorney General of Samoa [2010] WSCA 5 and Samoa Party v Attorney General [2010] WSCA 4.
  2. Those principles briefly stated are:

(1) A Court may consult the appropriate literature but 'not...the polemics of the subject, but...serious studies and inquiries and political narratives (Australian Communist Party v Commonwealth [1951] HCA 5; (1951) 83 CLR 1);


(2) A similar practice may be followed with regard to general scientific questions or what people must have believed at a given time about contemporary matters at a given time (Monarch Steamship Co. Ltd v Karlshamns Oljefabriker [1949] AC 196);


(3) A Court must distinguish between receiving evidence of historical and other records in proof of an historical fact on the one hand and on the order acting on its own historical research without giving the parties the opportunity to contradict or comment upon the work to which the reference has been made (Gordon M Jenkins & Associates Pty Ltd v Coleman [1989] FCA 245; (1989) 23 FCR 38);


(4) Courts, having had the question of the existence of a custom before them in other cases, are entitled to say that they will take notice of it and will not require proof in each case (George v Davies [1911] UKLawRpKQB 96; 1911 2 K.B. 445). The doctrine lies at the root of the Court's recognition of a vast number of mercantile customs (Amin Rasheed Shipping Corporation v Kuwait Insurance Co. [1984] AC 50);


(5) The areas of historic fact or current practice accepted by the Courts as permitting acknowledgment or acceptance of facts from the accepted writings of educated men upon matters and for verification refer to standard works of literature and the like (Australian Communist Party v Commonwealth (supra)).


(6) The areas referred in paragraph 19 (5) include professional practice (Davey v Harrow Corporation [1958] 1 Q.B. 60), economic conditions (Bryant v Foot (1867) LR 2 Q.B. 161 and Hawkins v Lindsley (1974) 49 ALJR 697), and local conditions (Le Cocq v McErvale [1907] ArgusLawRp 151; (1908) VLR 69) but within limits (cf Weir v Davidson [1965] VicRp 68; 1965 VR 506) and scientific matters and instruments (Alexander v R [1981] HCA 17; (1981) 145 CLR 395; Nicholas v Penny [1950] 2 K.B. and R v Weathernall (1981) 27 SASR 238).


[See generally: Cross on Evidence 6 Aust. Ed 3020 – 3070].


  1. In dealing with custom, the Courts have recognised that a time must come when having had the question of the existence of a custom before them in other cases they are entitled to say that they will take notice of it and will not require proof in each case. But it is not always easy to say when a custom has been recognised with sufficient frequency to become the subject of judicial notice (Majeau Carrying Co. Pty Ltd v Coastal Rutile Ltd (1973) 129 CLR 48 at 54 – 60).
  2. Here the questions of custom and history, law and their impact on property and political rights have been considered by Samoan Courts in cases such as Western Samoa Trust Estates Corporation v Leniu Faisaovale [1977] WSSC, unreported 9 August 1977; O.F. Nelson Properties Ltd v Feti [2008] WSSC 19; Sia'aga v O.F. Nelson Properties Ltd [2008] WSCA 15; Samoa Party v Attorney General (supra) and most recently in Alii and Faipule of Siumu District v Attorney General of Samoa (supra).
  3. This Court ought not lightly depart from the principles consistently applied by the Supreme Court and the Court of Appeal.
  4. The map shows that Upolu comprised of three general districts: Atua, Tuamasaga and A'ana. Laulii lies near the intersections of Atua and Tuamasaga. Laulii comes within the district of Tuamasaga. As Dr. Asiata Vaai records in his Dissertation at 65:

"Foreign desire for land had been generated by rumours and developments towards the end of the 1860s relating to the future status of the territory and projected profitability of economic enterprises. Commercial plantations viability had received a boost by the rise in the price of cotton – which grew all over Samoa – caused by the American civil war. Coconut production had also become commercially attractive following the switch from oil to copra production by Godeffroys and a rumour that a colonial power was to annex Samoa. A run by foreigners to acquire Samoan customary land was thus triggered...


The faitasiga war generated increased demand for firearms, which resulted in customary land being mortgaged to secure credit purchases. Consequently most of the land acquired by settlers following the land rush and confirmed by the Land Commission established under the Berlin Act of 1889 was situated in the district of Tuamasaga – a sphere of influence of the Malietoa title – and the immediate surrounding districts with large blocks of bushland on the western end of Savaii."


  1. The end of the faitasiga war was affected by a reconciliation reached in May 1875 followed by the adoption of the Original Law and Bill of Rights which established the faava'e of the government on 21 August. The law protected the traditional rights and privileges of the matai and authority remained with the village and the district fono. Government was entrusted to the Taimua and Faipule and seven Taimua elected to hold office for one year. Four district governors were appointed to assist the Taimua in directing the work of government officials in the districts. Rebellion was punished by banishment and confiscation of property. As Dr Asiata Vaai records:

"Land sales were to be reported to the government and if the authorities were satisfied of a 'good right to sell' in those who sold land, the sales were to be registered and the transactions 'considered valid'."


  1. The new Constitution of 1875 provided for a Supreme Court (adopted on 18 May 1875) with jurisdiction 'to try all capital offences and all cases of appeal from any of the district judges.'
  2. It is in that broad historic context that the transactions of 1867, 1874 and 1875 must be considered.
  3. In 1857 efforts were made to form a joint government between Samoans and settlers, which provided for limited Samoan involvement in legal disputes between Samoans and foreigners. It did not succeed. In 1860 the Vaimauga Code provided for matters of morality and public order, and in 1868 agreement reached on the framework for a central government with district leaders based at Mulinu'u. It was during this period that the sale by Tofaeono and Segi to Jonas Coe was made in 1867 during a time of relative peace.
  4. The death of Malietoa Moli in 1858 was but a cause of continuing trouble. It is of interest that following the death of Malietoa Moli, Sa Malietoa agreed to the title being held jointly by a brother, Talavou (toe o le uso) and a son, Laupepa (alii o aiga), that the titleholders were to be of equal rank with Laupepa having as his sphere of influence the district of Tuamasaga. This might explain the authority held by Tofaeono and Segi, held not from the Alii and Faipule of Laulii but from Laupepa. Another explanation might be with the status of Leniu and inheritance of the title Tofaeono at Vaiala and Moata'a.
  5. A year after the 1867 agreement the supporters of Malietoa Laupepa and Malietoa Talavou installed opposing governments at Matautu and Mulinu'u respectively. There was intermittent fighting for the next five years until reconciliation in 1873.
  6. Another basis for the Plaintiffs' claim can be said to be eleele na maua i le toto (koko) [land acquired by blood].

Basis of Evidence


  1. The Court was asked to pay regard to the oral history as stated to the Court by Maposua Toailoa, a matai, lawyer and a keeper of oral history, and Maposua Ligi. The Court respects their evidence recounted by those witnesses. It is subject to limitations, to be later considered.
  2. I have had regard to other historical resources in accordance with the above stated principles. In particular I have referred to the Dissertation of Dr Asiata Vaai, a man of high academic repute. He was not only a Member of the Legislative Assembly but had received a Doctorate of Philosophy from the Australian National University. One of his mentors and superiors of that Doctorate was the respected Samoan Historian C.G. Powles, a member of the Research School of Social Sciences at the Australian National University. In his Dissertation The Rule of Law and the Faamatai Dr Asiata Vaai states that in the period of 1850 – 1880 the internal politics of Samoa, especially Upolu, was in a state of flux. Here the impugned transaction was that of 1896.

Oral and Memory Evidence


  1. Samoan history is based on an oral tradition passed on by generations (see generally: Producing the Text of Culture by Dr Emma Kruse Vaai (2011) National University of Samoa).
  2. In Alii and Faipule of Siumu District v Attorney General of Samoa (supra) Nelson J. received into evidence and paid regard to historic evidence given through the oral tradition. His decision was upheld by the Court of Appeal. Sapolu CJ did the same in the O.F. Nelson Properties Ltd v Feti (supra) hearing, another decision upheld by the Court of Appeal. A similar course was taken by the Election Court in Su'a Rimoni v Mulitalo Vui and the Electoral Commissioner (delivered on 1 August 2006), when Fuimaono Fereti Tupua gave evidence on the customs of o'o and momoli. It should be clearly pointed out that in the last mentioned case the Court paid respect to the oral testimony but did not accept the conclusion of the historian. Indeed it fulfilled its own duty and rejected his version as to the modification of custom.
  3. In this case the Court received the affidavit and oral testimony of a matai and lawyer Maposua Toailoa, and Maposua Ligi.
  4. The essence of Maposua Toailoa's evidence is set out in his affidavit which relevantly states:

"11. That the Plaintiffs' ancestors had spilled their blood in defending their lands as evidenced by the fact that the boundary between Atua and Tuamasaga is drawn just to the East of the disputed lands, due to the bravery of the Plaintiffs' forefathers who fought gallantly to stop the advances of the forces of Atua and Tuamasaga westward.


12. That the names Tofaeono and Segi are not matais of the villages of Laulii and therefore had no right to alienate the disputed lands.


13. That when the disputed lands were sold by Tofaeono and Segi, the Alii and Faipule of Laulii were too busy engaging in warfare as there were a series of wars raging from the 1850s to the early 1900s involving the Malietoa titleholders, Mataafa titleholders and other Tama-a-Aiga. It was, therefore, most likely that the Plaintiffs' forefathers were quite unaware of the sale at the time."


  1. In his oral testimony he expanded on the historical importance of the land by citing an extract from August Krammer at 26:

"Tuamasaga's boundaries are famous battlefields called Tafa; for since time immemorial Tuamasaga was an enemy of Atua & A'ana, constantly at war with them. This was so during the time of Pili's songs and is still so. Especially well-known as a battleground is the boarder between Laulii and Luatuanuu. It is formed by river valley, and there the warring parties lay opposite each other on the mountains separated by that valley. This is the Mulivai Apuafasa where the battle took place which is mentioned A.C.5."


and produced a map which showed the three districts of the island of Upolu namely Atua, Tuamasaga and A'ana and their traditional boundaries.


  1. The thrust of his argument was that Tofaeono and Segi were never matais of Laulii with not right of sale or alienation. That objective followed into the subsequent transactions.
  2. Maposua Toailoa was subject to cross-examination during which he was asked about the import of the Land Grant 742 of 1897 signed by the Chief Justice appointed under Article 4 of the Treaty of Berlin 1889 ("the Treaty") Declarations 3 and 4 of which state:

"3. A declaration respecting the establishment of a Supreme Court of Justice for Samoa and defining its jurisdiction.


4. A declaration respecting titles to land in Samoa restraining the disposition thereof by natives, and providing for the investigation of claims thereto and for the registration of valid titles."


  1. The Treaty by Articles III and IV provided the establishment and jurisdiction of the Supreme Court. Relevant to these proceedings were the terms of Article IV which established a Commission to deal with invalid or impugned sales or transfers of land from Samoans to foreigners, to receive evidence within a timeframe of 2 years. Article IV Section 4 required the Commission to report to the Supreme Court.

"The labours of the Commission shall be closed in two years, and sooner if practicable.


Sec. 4. It shall be the duty of the Commission to investigate all claims of foreigners to land in Samoa, whether acquired from natives or from aliens, and to report to the Court in every case the character and description of the claim, the consideration paid, the kind of title alleged to be conveyed, and all the circumstances affecting its validity.


They shall especially report –


(a) Whether the sale or disposition was made by the rightful owner or native entitled to make it.


(b) Whether it was for a sufficient consideration.


(c) The identification of the property affected by such sale or disposition."


while Sections 5, 6 requires the Commission to:


"Sec. 5. The Commission, whenever the case requires it, shall endeavour to effect a just and equitable compromise between litigants. They shall also report to the Court whether the alleged title should be recognized and registered or rejected, in whole or in part, as the case may require.


Sec. 6. All disputed claims to land in Samoa shall be reported by the Commission to the Court, together with all the evidence affecting their validity; and the Court shall make final decision thereon in writing which shall be entered on its record."


  1. Section 7 required the establishment of 'a complete registry of all valid tittles to land in the islands of Samoa which are more may be owned by foreigners.'
  2. Section 8 exempts land acquired before the 28th day of August (the date of the Anglo Samoan Treaty 1879) 'without prejudice to rights of third parties (here they are said to be the Alii and Faipule) if purchased from Samoans in good faith for valuable consideration.' The Defendants claim that a strict reading of 'from Samoans' would protect the 1867 transfer. The Court makes no final determination on this part because of the words 'without prejudice to the rights of third parties' which might preserve some inherent right of challenge yet unargued.
  3. It is not necessary to conclusively determine the import of Article IV Section 8 since Section 9 explicitly states:

"Sec. 9. The undisputed possession and continuous cultivation of lands by aliens for ten years or more shall constitute a valid title by prescription to the lands so cultivated, and an order for the registration of the title thereto may be made."


  1. There is no evidence but that the impugned lands were possessed and cultivated for 10 years between 1876 and 1889 by foreigners. Whilst some historic injustices can be remedied by Courts properly constituted they are able to do so because the original dispossession failed to extinguish existing traditional rights leaving them intact and enforceable (Mabo v Queensland (No 2) [1993] 1 LRC 194). The evidence of continuance must be cogent and clear.
  2. Here the Plaintiffs have failed to prove that Article IV Section 9 did other than regularise an existing provision of law. In 1867 – 1889 there were no separate categories of land holding until their creation by the Samoa Act 1921 (NZ) (O.F. Nelson Properties Ltd v Feti (supra)). As the learned Chief Justice stated at paragraph 75:

"There is also no evidence to show that in 1872 land could not be alienated by way of sale. The history of the country points to the alienating of land in Samoa by way of sale during that period of time."


Section 9 attempted to regularise existing legitimate transactions.


Cogency of Evidence of the Authority of Tofaeono and Segi


  1. I have paid due deference to historic oral testimony provided by the Plaintiffs but I remain mindful of the observations of the learned Chief Justice in the O.F. Nelson Properties Ltd case (supra) when he stated at 60 – 62:

"[60] ...It is submitted by counsel for the defendants that Tualau Siale did not have the sole pule or authority to sell the land to Wilson; Tualau Siale also had to obtain the approval or authority of the Alii and Faipule of Vailoa, Palauli, who held the pule faamalumalu over all the lands of the village. However, no evidence was produced in these proceedings to show that in 1872 a matai who wished to sell land pertaining to his matai title was required by Samoan custom and usage to obtain the prior approval of the Alii and Faipule of his village. Given the large number of land transactions that took place between Samoans and foreigners in the past, one would have thought that if there was actually such a customary requirement as submitted by counsel for the defendants, then there should be evidence of it. But no such evidence was produced.


[61] ...In my experience as President of the Land and Titles Court from 1992 to 2005, and apart from the fact that I am also a Samoan matai, land in Samoa which is now called customary land is land held under a matai title. Every customary land in a village is held under a matai title which has the pule or authority over that land. If the holder of a matai title wants to alienate by way of lease or license land to which his matai title pertains, he does not have to seek and obtain the prior approval of the Alii and Faipule of his village. There is no such customary requirement. If that was the same position in Samoa in 1872 when Taulau Siale sold the land to Wilson, then, with respect, the submission by counsel for the defendants that Tualau Siale should have had the prior approval of the Alii and Faipule of Vailoa, Palauli, cannot be right. But as I have said, there is no evidence to show that the position asserted for the defendants was Samoan customs in 1872.


[62] ...From the 'faalupega' of Vailoa, Palauli, provided by counsel for the defendants in his written submissions, it is clear that Tualaau or Tualaulelei and Lelei or Leleisuao are right at the very top of the faalupega of Vailoa. It is evidence of the very high rank of those titles in the village. This is also well-known to many Samoans, Autagavaia, as mentioned earlier, is also a high ranking orator of the village. All this evidence makes it difficult to accept the submission for the defendants that Tualau Siale did not have the sole authority to sell the land but should have obtained the prior approval of the Alii and Faipule of the village."


The Trood Objection


  1. Land Claim No. 863 was lodged by Thomas Trood on 18 August 1894 in accordance with the Treaty Article IV Sections 4 and 5. The Land Claim No. 863 stated:

"Name of Claimant: Thomas Trood of Matafele, Apia, Merchant.


Approximate number of acres in claim: 90a.0r.0p approximate.


Name of Island and District in which the land is situated: [not legible] Laulii, near the boundary of the Province of Atua; Island of Upolu.


Description of Land by mark, and boundaries if possible and especially by name: Pupu and Mulifata.


The name and residence of any adverse claimants if known: No adverse [not legible] known at the present time. In June 1882 King Malietoa better informed Claimant [Thomas Trood] that he had refused to listen to a con[incomplete – not legible] by some Luatuanuu natives."


  1. Malietoa replied to Thomas Trood in June 1882 (the documentation is either erroneous or the date mistranslated) in the terms:

"Dear Sir,


I have written to you as a result of a complaint/objection from one man from the village of Luatuanuu concerning his land that is now with you.


I have decided that since it has been many years since you bought the land, I have now stopped/barred him as any investigation into the land that you now hold will be pointless.


Sincerely,


I, Malietoa Tupu."


  1. The letter could have been an earlier response to a personal complaint made by Thomas Trood directly to Malietoa Tupu before the referral to the Land Commission. It matters little since Trood's complaint had been validly rejected by either or both Malietoa Tupu and the Commission.
  2. Jonas Coe had sold the land to Thomas Trood in May 1875 for the sum of US$734 whilst Trood had sold the same land in March 1897 for US$450, losing money in the process. It is more likely that Trood was seeking compensation for his loss and the benefit obtained by Johann Helg.
  3. Irrespective of the above, any procedural errors or misdescriptions were remedied by the Supreme Court in its confirmation and award made on 9 March 1897. The award included the physical description of the land as 'Pupu and Mulifatu.'
  4. The validity of that confirmation has been conclusively determined by the Court of Appeal in Sia'aga v O.F. Nelson Properties Ltd (supra); Alii and Faipule of Siumu District v Attorney General of Samoa (supra) and Samoa Party v Attorney General (supra).
  5. Those decisions are binding on this Court.
  6. The Court is not satisfied that the Plaintiffs have proven to the requisite degree the factual ingredients necessary to establish this ground.
  7. Maposua Toailoa in his evidence (p.22) met the 'Trood' argument by pointing out that the documentation did not show an opponent and there was no sign of an objection or opposition to his claim. The document does refer to freehold rather than customary land. He relied on two propositions namely;
  8. It was for the Plaintiffs to show that such was not the case. The reply from the Defendants that the Samoan Land Commission report on Claim No. 863 showed no adverse claimants since there were none. His application was uncontested and the confirmation of the validity of the original and subsequent transfers was valid.

The Plaintiffs' Case


  1. The 1867 transfer was sealed and witnessed. Likewise the October 1874 Indenture under the heading 'The United States of America witnessed by the U.S. Consul which was recorded as No. 3 D Folio 121.' The transfer to Johann Helg was certified by the Chief Justice on 9 March 1897. There is nothing untoward in the form of the respective conveyances.
  2. No criticism is made of the form of the subsequent indentures.
  3. I have already dealt with the evidence of Maposua Toailoa. The evidence of Maposua Ligi relevant to the issue of authority and fraud contained in his affidavit is:

"4. When the land was wrongfully taken by unlawful means, they have wrongfully named the disputed lands as 'Pupu' or 'Mulifatu.' However, the correct names of the disputed lands are 'Manuatele' and 'Mulivaiapuafasa.'


5. The original name of 'Manuatele' (mass injuries) was due to the fact that this was the land where the battle of the boundary of Atua district and Tuamasaga district was fought and the warriors of our village stopped the forces of Atua from pushing the boundary westward and the boundary was drawn there and has remained there up to this day. Many from both sides were wounded and/or killed there, hence the name 'Manuatele' because of the many people who were wounded and/or killed.


6. It was also this battle that the founding title 'Toailoa' was first coined due to the bravery of our warrior named 'Uga' who slaughtered the warriors of Atua district. When the fighting receded and Atua was defeated, the Chiefs and Orators of Atua pronounced that 'they now know for the first time ('Faatoailoa') there was a warrior in the district of Tuamasaga.' The name of 'UGA' the warrior was then changed to 'Toailoa' and he was the first 'Toailoa' of our village.


7. This land is therefore sacred to us as it was protected and defended by the blood of our ancestors but outsiders have tried to take it away from us.


8. The name 'Mulivaiapuafasa' refers to the Eastern stream in our village where the boundary of Atua and Tuamasaga is drawn.


9. The Helgs are claiming a total landholding of 90 plus acres. However the land had never been surveyed and no one knows where the boundaries are.

...

12. I testify with all honesty that that the matai titles Tofaeono and Segi are not from our village and the said titles do not hold any lands or have control over any lands in our village. To the best of my knowledge, the title Tofaeono is from the villages of Vaiala (near Apia) and Siumu. The title Segi as far as I am aware is from the village of Saasaai, Savaii.

13. I say with all certainty that the named vendors had absolutely no right to sell our land and it could only have been done in an unlawful and fraudulent manner.


14. I am most certain that the sale would have been concluded on paper only and no survey was ever carried out. There is also absolutely no record of the said Jonas M. Coe ever living or occupying the disputed lands.


16. There is no Samoan custom which would permit matais of another village selling off landholdings of another village. Only war would arise if such a thing were to happen."


  1. Much of the evidence is assertion or conjecture. Apart from the Trood challenge made long after the transfer there had been no questioning of the title until the banishment order was made by the village council in June 1990. These proceedings were not commenced until October 2004 following a complaint made about the sale of minerals by the village and their receipt of payment for such sale.
  2. The impugned land was recorded on the Land Register on 4 November 1921 Volume 4 Folio 115.

Claim through Blood and Cultural Attachment


  1. Many parts of the world are soaked in the blood of warriors and civilians. Many nations have had their territories and boundaries destroyed or altered through war. In some cases the land is returned or altered. But it is victory and retention or treaty which is the basis of ownership. While it was the villagers who came to the aid of Malietoa's warriors it was not their victory but that of the primary Chief or King. On the Plaintiffs' own argument the land should belong to the title Malietoa not the Alii and Faipule of Laulii. If they wish to respect their dead the village should have preserved the site, not dig for minerals for money.
  2. They may purchase the sacred land from the Helg family or request the Government of Samoa to acquire it and preserve it as a monument to all who died there.
  3. The claim is dismissed.

Incorrect Description of Title


  1. Whilst it is true that one of the descriptions in the original transfer refers to a tree (long dead) as marking a boundary point and a small stream forks at the one point it is easy to recognise the land as a whole in general terms. That contention is pointless.
  2. The wider argument is that the Defendants claim Pupu and Mulifatu is actually situated in Luatuanuu so the land claimed in Laulii is not in fact Pupu and Mulifatu.
  3. The argument is misconceived.
  4. Members of the Helg family, to this day, occupy land which is situated on the western side of the stream. The Plaintiffs attempted to show that 'Mulifatu' is on the eastern side of the stream while all of the evidence is that the Helg family houses are all situated on the western side of the stream. This has been the position for well over 100 years.
  5. Irrespective of this the village and its council have always refused, through threats and violence to permit surveyors to define the land or its boundaries. They remain responsible through their own conduct in any trivial and irrelevant misdescription.
  6. There is no merit in this ground of claim and it is dismissed.

Adverse Possession


  1. In Nelson McKenzie Ltd v Sale Lamosi (CP 125/93, delivered 5 July 1995), the learned Chief Justice referred to necessity in cases of claim by adverse possession that the claimant proves possession of the whole of the land rather than a portion. His Honour observed that:

"It would also be difficult in these circumstances for the defendant to argue that his occupation or user of the rear part of the disputed land sufficiently demonstrates an animus possidendi in regard to the whole of the disputed land so that he may claim possession of the whole of the disputed land: see Western Samoa Trust Estates Corporation v Leniu Faisaovale [1970 – 1979] WSLR 138, 140; Robinson v Attorney-General [1955] NZLR 1230, 1234 and Higgs v Nassauvian Ltd [1975] 1 All E.R. 95, 101. The effect of these cases is that occupation or user of part of a block or tract of land, may amount to possession of the whole block or tract, if such partial occupation or user demonstrates an animus possidendi in regard to occupation or regard to the whole."


  1. A further problem for the Plaintiffs (collectively as the Alii and Faipule) is the statement of Nicholson CJ in Western Samoa Trust Estates Corporation v Leniu Faisaovale [1977] WSLR 138 where he stated at 140:

"I consider that to take advantage of the provisions of the Limitations Act 1975 the defendant must accept that he is to be treated as an individual occupier and not as a family member. He may press his own claim but nobody else's. After all, Section 4 of the Limitation Act 1975 provides that the Act shall not apply to Samoan customary land. Manifestly, it is inappropriate then that a claimant by adverse possession should attempt to press his claim of freehold land on the basis of Samoan customary communal holding land by numbers of persons, of which he is one. Moreover, I would reject out of hand any argument that his occupation of 145 acres out of a block of 1,144 acres in Court Grant 984 (to say nothing of his claims beyond that), in any way can give him possessory title to the entire block..."


  1. In this case the Plaintiffs claim:
  2. The law governing limitation has been considered in many cases such as Nelson Mackenzie Ltd v Sale Lamosi [1995] WSSC (supra); Wallace Jennings v Ioane Onesemo [2000] WSSC 9 August; Douglas Crane Kreubuhl v Salu Liugalua & Ors (unreported decision delivered on 24 January 2003). 'Adverse possession must be actual, open and manifest, exclusive and continuous (McDonnell v Giblin [1904] NZGazLawRp 25; (1904) 23 NZLR 660). Consent or Licence by the owner does not create a limitation defence or an equitable right to seek a declaration.'
  3. The Court of Appeal has recently considered the judgment in Wallace Jennings v Ioane Onesemo (supra) and declined to reopen the matter (Jennings v Estate of Ioane Onesemo [2010] WSCA 12).
  4. Su'a Atonio Filisi's father allowed villagers to plant taro and bananas on part of the impugned land and to collect firewood from the land. Permission provides licence not title by adverse possession (Fagalei Investment Ltd v Schmidt [2010] WSSC 78).
  5. Su'a Atonio Filisi has been living on the land for most of his life as were his parents before him. Stanley Helg, a resident of New Zealand visits the land on a regular basis.
  6. There is clear physical evidence of the foundations of the original house built and occupied by the Helgs.
  7. Su'a Atonio Filisi continues to maintain a plantation on the land.
  8. The Court accepts the reliability of the witnesses Su'a Atonio Filisi, Stanley Helg and Matilda Meredith-Tapusoa.
  9. There is little evidence of occupation by any villager of the impugned land except by permission or licence.
  10. The Court is satisfied that there has been no abandonment or dispossession of the Defendants and no adverse possession by the Plaintiffs or any of them.

Conclusion


  1. The action and Statement of Claim are dismissed.

The School


  1. A school was built on the Helg land. The Plaintiffs claimed it to be evidence of abandonment by the Helgs or an example of adverse possession by the village.
  2. Their version of events and arguments are rejected. The land was a gift of 5 acres to the State of Samoa through its village system to the youth and education system of the country. The family is to be thanked and honoured through its gift, not denigrated for their gesture.

The Constitution


  1. Many Constitutional and historic challenges have been made to the validity of freehold title which involve consideration of the Samoa Act 1921 (NZ), occupation between 1914 and the Treaty of Versailles 1919, the German period and the differing claims of titleholders during the 1890's (see generally: O.F. Nelson Properties Ltd (supra); Alii and Faipule of Siumu District v Attorney General of Samoa (supra) and Samoa Party v Attorney General (supra)). The challenges are complex and divisive. No case thus far has involved the effect or import of the Constitution of the Independent State of Western Samoa 1960.
  2. The Constitution Part XII governs the transitional arrangements required as the nation state rectifies the past and affords future powers.
  3. The Constitution Article 114 relevantly provides:

"Existing law to continue - Subject to the provisions of this Constitution:


(a) The existing law shall, until repealed by Act, continue in force on and after Independence Day;


(b) All rights, obligations and liabilities arising under the existing law shall continue to exist on and after Independence Day and shall be recognised, exercised and enforced accordingly."


  1. Article 123 refers to the 'vesting of property' and provides:

"(2) Subject to the provisions of clause (3), land which immediately before Independence Day is, under the provisions of the Samoa Act 1921, Samoan land, European land or Crown land shall, on and after Independence Day, be held, under the provisions of this Constitution, as customary land, freehold land or public land, respectively."


  1. Whilst Section 114 includes the terms 'obligations and liabilities' in the preservation of existing rights, it may be that Article 123 intended to govern the integrity of the three forms of title from historic challenge.
  2. It is not necessary for the purpose of this case to further consider the matter but it is one which might be an answer to future challenges.

Addendum


  1. During the trial it was suggested that the Court could identify some small portions of the land which could be granted to the Plaintiffs by way of adverse possession. The Court was sympathetic to the suggestion or at least prepared to assist in a compromise or agreement. Either of those tasks was impossible without survey. Further the question of misdescription of title could only have been determined following survey.
  2. In 1997 the village council contracted with SPDC, Ott Transport and Henry Westerlund for the excavation of scoria from the land and retained the money from those operations. In earlier times profits from the resource had been shared between the village and the Helg family. In the Court's opinion the motives of the Plaintiffs were not the protection of 'sacred land' but economic gain at the expense of others.
  3. There have been numerous acts of violence and threats of violence by villagers acting with the knowledge and implied approval or permission by matai as individuals or members of the village council. There has been wilful disobedience of an injunction issued and served on representatives of the Plaintiffs and signed. The disobedience required intervention by police.
  4. This Court conducted a view and, in the presence of many matais and members of the village in Court informed those present in Court of the need for a survey and the consequences of non compliance.
  5. On 29 October 2010, in an attempt to have a survey undertaken the Court issued formal orders in the following terms:

"UPON HEARING counsels for all parties to the within proceeding and the Court being satisfied a survey of the land, the subject of the within proceedings, is necessary THIS COURT HEREBY ORDERS:-


  1. Officers of the Ministry of Natural Resources are to undertake a survey of the land described in Court Grant 742;
  2. In the course of the survey those officers are to mark and identify the structures and areas of cultivation within the boundaries of the land and mark them on the survey documents;
  3. The Ministry of Natural Resources and Environment is to provide copies of the survey documents to all Counsels when the survey is completed;
  4. The costs of the survey will remain the responsibility of the parties to the action but the question as to which party is responsible is reserved;
  5. This case is adjourned to the 3rd day of December 2010."

The Order was served by the Plaintiffs.


  1. On 3 December the Defendants' solicitors advised, by letter, the Ministry of Natural Resources Environment and Meteorology, the Registrar of the Court and counsel for the parties in the following terms:

"We refer to our telephone discussion earlier this morning and record herein that your surveyors will attend at Laulii at 2.00 p.m. Monday, 6 December 2010, to commence surveying the subject land.


As advised, His Honour Justice Slicer will also be present to ensure there are no further delays or problems from anyone from Laulii. Counsel and/or representatives may also attend.


We further record your advices that it would take a minimum four to five months to conduct and complete this survey for the following reasons:


  1. The sheer size of the land and the fact the boundaries appear to go quite inland into mountainous area;
  2. Your Department already has a substantial workload for surveys pursuant to Lands and Titles Court matters.

We thank you for your ongoing assistance herein."


  1. A court record addressed to the Principal Registrar also dated 3 December relates:

"Re: Alii and Faipule o Laulii vs. Ramona Ash and Others.


The above matter was called for Mention this morning for the Court to receive advice on the progress of the survey ordered on Friday 29 October 2010.


Counsels advise that the village has objected strongly to the survey being done.


His Honour Justice Slicer has ordered that the Court adjourns to Monday 6 December 2010 at 2 p.m. at the village of Laulii.


Ua logo lau susuga ona o popolega mo le saogalemu o le Alii Faamasino o lea ua sauni ma te malaga i le survey ae pe e te finagalo e logo police.


Faafetai tele."


  1. There were threats of violence to officers of the Supreme Court of Samoa. In order to allow wiser heads to prevail the Court further adjourned the matter until 23 December. On that day no counsel or persons representing the Plaintiffs attended the Court specially convened to assist the Plaintiffs.
  2. The village through its council, matai and pulenu'u has obstructed and continues to obstruct the operation of this Court in an action commenced by them.
  3. I regard the conduct as:
  4. The conduct attracts the law of the Crimes Ordinance 1961 Section 23 (1) and common purpose within subsection 2.
  5. The act of contempt was not committed 'in the face of the Court' so any action remains the responsibility of the Attorney General. The remaining matters remain the responsibility of the Commissioner of Police.
  6. The responsibility for the misconduct lies with the village council, the attending titleholders and the pulenu'u. However of particular concern is the conduct of Maposua Ligi, Taito and Mapusua (whose second name was not identified by the witness Su'a Atonio Filisi) identified as agitators of the events surrounding the violence and injunction.
  7. I will attach a list of the matais of Laulii, not to this judgment but in letters directed personally to the relevant authorities.
  8. I formally request that each of those officers undertake investigations of the above matters and, if possible or appropriate, initiate a proper response. I do not intend to intrude into your duties as responsible officers of the State of Samoa.

Counterclaim


  1. Counsel for the Fourth Defendant advised the Court at the commencement of the trial that the party would not pursue the Counterclaim and accordingly it is dismissed.

DECLARATIONS AND ORDERS


The Court orders that:


(1) The registered owners of the land as recorded in Volume 4 Folio 115 of the Land Register of Samoa are the legal and equitable owners of the land.

(2) The Summons and Statement of Claim dated 24 October 2004 are dismissed.

(3) Each ground in the Statement of Claim dated 24 October 2004 and amended on 22 October 2010 is dismissed.

(4) There be judgment for each Defendant on the action.

(5) The Counterclaim of the Fourth Defendant is dismissed.

(6) Each and every member of the village of Laulii be injuncted from entering onto or interfering with any portion of the land described in the Land Register Volume 4 Folio 115 without written consent of one of the Defendants.

(7) The Village Council of Laulii and/or the Alii and Faipule of Laulii formally rescind its resolution made on 25 June 1990 within twenty-one (21) days of this matter.

(8) The Alii and Faipule of Laulii pay, jointly and severally the costs of each Defendant in the sum to be agreed or assessed by this Court.

(9) Counsel have liberty to apply for Consequential Orders.

The Court directs the Registrar to forward a copy of these Reasons for Judgment to the Attorney General, the Commissioner of Police and, as a courtesy, to the Minister of Nature Resources, Environment and Meteorology.


___________________
JUSTICE SLICER

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