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

Public Trustee v Duffy [2019] WSSC 20 (16 May 2019)

SUPREME COURT OF SAMOA
Public Trustee v Duffy [2019] WSSC 20

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

THE PUBLIC TRUSTEE a Corporation sole established by the Public Trust Office Act 1975 as Trustee of the estate of AIONO ROBERT AIONO of Vaiala and Fasitoouta, Planter, former Trustee of the Estate of NORA AIONO late of Vaiala.
Plaintiff

A N D

NUUMOE DUFFY of Taufusi near Apia, in Samoa, Domestic
Defendant

Counsel:
T R Faaiuaso for plaintiff
T K Enari for defendant

Judgment 16 May 2019

JUDGMENT OF SAPOLU J
TEMPORARY JUSTICE OF THE SUPREME COURT
AND FORMER CHIEF JUSTICE

Introduction

1. First of all, I convey my sincere apologies to the parties for the length of time it has taken to deliver this judgment. I respectfully thank you for your patience and understanding. The demands and pressures of other cases together with my other judicial work had contributed to this delay. The doctrine of part performance which is one of the key issues in this case had also not been well developed in Samoa at the time of the hearing of this case. The law on part performance at that stage was confusing and its application to Samoa was uncertain. Likewise, the rules of admissibility of evidence were unclear as to whether they would allow much of the documentary evidence produced for the plaintiff.
2. The plaintiff is the Public Trustee. It appears from the evidence and documentation before the Court that the Public Trustee had brought these proceedings as trustee of the estate of Aiono Robert Aiono of Vaiala and Fasitoouta and as executor and administrator of the will of Mrs Nora Aiono (Mrs Aiono) who died in 1984.
3. The defendant Mrs Nuumoe Duffy has passed away since the hearing of these proceedings was completed. She is the registered owner as tenant in common in equal shares with her brother Tuifono Ah Yen (Tuifono) of a piece of land at Taufusi in Apia described as Parcel 37 Flur II Tuamasaga District in the Territory of Western Samoa containing an area of two roods and thirty-seven point eight perches (0a.2r.37.8p). The documentary evidence shows that it was agreed between the defendant and her brother Tuifono that the defendant was to have the eastern half of the land and Tuifono was to be given the western half. Despite efforts by Mr Reginald Phillips (Mr Phillips), one of the solicitors in Apia at the time, to have the land partitioned in equal shares between the defendant and Tuifono and to convey the eastern half to Mrs Aiono, the land was never partitioned or the eastern half conveyed to Mrs Aiono.
4. It was alleged for the plaintiff that in 1955 or 1956, the defendant entered into an oral agreement to sell her interest in the land to Mrs Aiono and was paid £600 by Mrs Aiono as the purchase price of the land. This was denied in her evidence by the defendant who said that there was no such agreement and she never received any money from Mrs Aiono for the land. The plaintiff’s action is for specific performance of the alleged oral agreement relying on the doctrine of part performance.

The issues

5. The issues in this case are:
   • (a) whether Mrs Aiono paid £600 to the defendant as the purchase price of the land;
   • (b) whether there was an oral contract whereby the defendant agreed to sell her share of the land to Mrs Aiono;
   • (c) if so, should an order of specific performance be made to enforce that oral contract.

Evidence for the plaintiff

6. The witness Taito Roy Aiono (Taito) a son of Mrs Aiono was called for the plaintiff. He testified that the defendant came to their home at Vaiala in 1955 and conversed with his mother. He was then called by his mother to come and count the cash of £600 being the purchase price for the land. The defendant and his mother then left to go to see Mr Phillips the lawyer. Further, it was the defendant and not her mother Momotu who came to Vaiala.
7. Taito also testified that in the 1960’s his family fenced the land and constructed a building to manufacture boxes for the export of bananas. This was confirmed by the plaintiff’s witness Fesuiai Tuiafelolo (Fesuiai) an old lady and the defendant herself in their testimonies. At that time, the defendant was living next door. This fence was damaged by the defendant and her family in 1972 and Taito’s family had to put it back up. Taito’s parents also had tenants on the land. These included the plaintiff’s witness Fesuiai who was still living on the eastern part of the land at the time of the hearing of this case, a Japanese operating a sandal factory, and a local businessman operating a packing and shipping business as well as a mechanical workshop. Taito said all those tenants were paying rent to his mother Mrs Aiono. In reply to a question from the Court whether his family paid rent to the defendant for the use of the land, Taito replied no except for the £600 that was paid by his mother to the defendant for the purchase price of the land.
8. Taito further testified that at the time his family had their building on the land there was no interference from anyone including the defendant. There was also no interference by anyone with the tenants his parents had brought onto the land. He also said that the reason his family got onto the land was because of the sale and purchase of the land that had taken place between the defendant and his mother. At no time did the defendant require his family to leave the land. Furthermore, right up to the hearing of this case Taito’s family were still going there to clear and clean up the land.
9. The witness Fesuiai, a key witness for the plaintiff, was initially brought onto the land by the defendant’s mother as a tenant on part of the land. Fesuiai testified that it was the mother and brother of the defendant who permitted her and her husband to lease on part of the land. They paid rent to the defendant’s mother and never to the defendant. She also said that at one time the defendant told her to leave the land but she called the husband of Mrs Aiono and he came and told her and her family to remain on the land and she and her family have since remained on the land up to the hearing of this case. She and her family also paid rent to Mrs Aiono’s husband as it was her understanding that the Aionos had bought the land. Fesuiai has passed away since the hearing of this case but her house remains on the land up to now and is occupied by her children.
10. I turn now to the documentary evidence presented by the Public Trustee which was mainly sourced from the file of Mr Phillips whom counsel for the plaintiff claimed was the solicitor for the defendant. Counsel for the defendant objected to the production in evidence by the plaintiff of documents from this file. He said that Mr Phillips was also acting as solicitor for Mrs Aiono and the Aiono family. Mr Phillips later became Chief Justice of Samoa and had passed away several years before the hearing of this case so that he could not be called as a witness to produce in evidence some of the documents in the said file which is now in the custody of the Public Trustee who said that there was no receipt in the file when it was referred to his office to show that the defendant had received money from Mrs Aiono for the purchase price of the land. I disallowed the objection by counsel for the defendant and allowed the Public Trustee to produce the relevant documents from the said file.
11. I will refer to the relevant documents and try to show the sequence of events that occurred over the years in relation to the land. The first document is an agreement dated the 13th day of February 1953 purported to be made between the defendant and her brother Tuifono as co-owners of the land and one Arthur Rasmussen whereby the defendant agreed to sell her half share of the land to Mr Rasmussen for $220. Nothing came out of that agreement because Tuifono who was then residing in Auckland, New Zealand, refused to sign it.
12. The second document was an undated handwritten note which was claimed for the plaintiff to have been done by the defendant. It appears from the wording of that note that it was done after 1952 and probably after 1953 as well. This note refers to the land being divided into two parts between the defendant and Tuifono. Mr Rasmussen wanted to buy the defendant’s share of the land and deposited £150. Mr Metcalfe, one of the solicitors in Apia at the time, prepared the necessary papers for the sale of the land to Mr Rasmussen and had them sent to Tuifono in New Zealand to sign. Tuifono refused to sign. Mr Rasmussen then wanted his money to be refunded. One Mr Willie Hagedorn and his wife knew of Mr Rasmussen wanting to have his money refunded. So Mr Hagedorn paid £150 for the refund of Mr Rasmussen’s money. In 1953, the defendant and Mr Hagedorn’s wife went to Mr Coleman, another solicitor in Apia at the time, and instructed him of Hagedorns wish to buy the land. Mr Coleman prepared the necessary papers for the sale of the land to the Hagedorns and sent them to Tuifono in New Zealand to sign. Again, Tuifono refused to sign.
13. It appears from the events in 1952 and 1953 that at that time the defendant was in a frame of mind to sell her land. If her brother Tuifono had not refused to sign the papers, the defendant’s land would have been sold to Mr Rasmussen in 1952 or to the Hagedorns in 1953.
14. The third document is another undated handwritten note said to be dated 9 December 1954. The defendant’s name is signed on this note. It says that in 1953 the defendant ran an account with one Ropati Vaai who had a shop across the road from the defendant’s land. The defendant did not pay her account and Mr Vaai referred the account to Mr Jackson another solicitor in Apia at the time. Mr Jackson then took the defendant to Court. This is what the defendant said about this account:
    • “1953 I ran an account with Ropati Vaai, that account was for the purpose of providing me and my children for food, clothing, and also some cash which I needed for my own personal use... I had run that account with the hope that I will repay it from the money that I shall get from banana cases... but Mr Ropati Vaai referred this account to Mr Jackson and Mr Jackson filed his claim in Court, then I was summoned. Then I went to Mr Jackson and told him of the way I had run this account. Mr Jackson then asked me how would I pay for this account. I replied that if the sale of my piece of land to Aiono L is done then I will be able to pay off the account. I then signed that agreement with Mr Jackson”.
15. “Aiono L” mentioned in the above handwritten note of the defendant was well known in Samoa at the time as the largest producer and exporter of bananas. “Aiono Luti” or “Aiono Ruti” was the husband of Mrs Aiono and they were the parents of the plaintiff’s witness Taito.
16. The fourth document is another undated handwritten statement alleged to have been made by the defendant. The relevant part states:
17. “1954, Aiono and his wife came to Taufusi because they heard the news that Nuumoe wanted to sell her piece of the land. Aiono and his wife stated that they wanted to buy the whole of Nuumoe’s part of the land for £600. Then we referred this matter to Mr Phillips, the solicitor, and Tapu’s (Mrs Hagedorn’s) wish for repayment of her money as well as interest. This matter has been dealt with for a long time because of Tuifono interfering with my part of the land but I have not done anything to the part of the land left for him.
    • “My true wish and my true request is that my piece of land should be sold to Aiono R and the money should be given to Mr Phillips until the whole of Mrs Ana Hagedorn’s and Ropati Vaai’s money is being paid. This is my honest statement before God and the Court because I have eight children including a baby who is four months. That is why I want to sell my land as mentioned in my statement”.
18. It would appear that the reference in the above statement to “1954” tends to suggest that this statement was made after 1954 and that at the time of this statement the land had not yet been sold to the Aionos. The statement also shows that at some time in 1954 Mr and Mrs Aiono approached the defendant and offered to buy her land for £600. This falls in place with the evidence of the witness Taito that in 1955 the defendant came to Vaiala and conversed with his mother who then called him to come and count the cash of £600 being the purchase price for the land. The defendant and his mother then left to go to see Mr Phillips the lawyer.
19. The fifth and sixth documents are copies of a deed dated “March 1956” apparently prepared by Mr Phillips whose name appears on the backing sheet. This must be the Deed of Agreement to purchase dated 21st March 1956 referred to in Mrs Aiono’s application to caveat of 19th November 1970. This deed refers to an agreement made between the defendant and Mrs Aiono whereby the defendant agreed to sell her share of the land which consists of the eastern part to Mrs Aiono for £600. The agreement was expressly made subject to the land being partitioned between the defendant and her brother Tuifono. The copy of the deed that was produced, however, was not signed and it is not clear why that was so.
20. The seventh document is a letter dated 23rd April 1956 from Mr Phillips to Tuifono. This letter refers to a letter sent by Mr Phillips to Tuifono the previous year (1955) enquiring whether Tuifono would consent to executing a Deed of Partition to partition the land between himself and the defendant vesting in Tuifono the western half and in the defendant the eastern half. Mr Phillips then again asked Tuifono for his consent to execute the deed of partition.
21. Mr Phillips also mentioned in his letter of 23rd April 1956 to Tuifono that his mother and the defendant had been charged and convicted in the High Court the previous month of obtaining certain sums of money by false pretense. The mother was fined £30 whilst the defendant was ordered to come up for sentence within fifteen months. The defendant was not to be called up for sentence if she observed three conditions. The third of these conditions was that the defendant within 12 months must pay in full the money owing to the victims of her offending or else she was to sell her interest in the land and paid the persons who were defrauded. Mr Phillips also mentioned in his letter that the defendant has entered into a written agreement for the sale of her share in the land to a purchaser. The part of Mr Phillips letter needs:
    • “Nuumoe has entered into a written agreement for the sale of her share in the land to a purchaser and I am endeavouring to have this matter completed within the time limited by the Court so that the condition as to restitution should be observed. I understand from letters you have written to your mother and Nuumoe that you wish to retain for yourself the western half (that is the half closest to the three corners at Taufusi) and that you agree to Nuumoe having the eastern half of the land (namely that half closest to Togafuafua). This is satisfactory to Nuumoe”.
22. The eighth document is another letter dated 14th July 1956 from Mr Phillips to Tuifono referring to Tuifono’s letter of 8th May 1956 in reply to Mr Phillips letter of 23rd April 1956. It appears from Mr Phillip’s letter that Tuifono in his letter of 8th May 1956 agreed to partition the land between himself and the defendant. Mr Phillips then prepared a deed of partition which he took with him when he travelled to New Zealand on 28th July 1956 for Tuifono to execute. For some reason, Mr Phillips was not able to meet with Tuifono in New Zealand. So Mr Phillips left the deed of partition with Mr J Bentley a relative of Taufono with the request to have the deed explained and signed by Tuifono before a solicitor. It appears from the evidence that up to the hearing of this case no Deed of Partition had been executed by Tuifono and no partition of the land has taken place.
23. The ninth document is the letter of 10th December 1956 from the Mr Phillips to Mr J Bentley in which Mr Phillips expressed his concern that he had still not received back the deed of partition he had left with Mr Bentley for Tuifono to sign. This was because one of the conditions of the defendant’s conviction for false pretense and sentence on 22nd March 1956 required the defendant to pay in full within twelve months the people she had defrauded or else sell her interest in the land and from the proceeds of the sale pay the victims of her offending. Mr Phillips letter to Mr Bentley relevantly reads:
    • “Nuumoe has entered into a written Agreement for Sale and Purchase to sell her interest, namely, the eastern half of this block of land and it is essential to complete this sale and have the monies paid over in accordance with the Court Order before the 22nd day of March 1957, failing this, she is liable for a term of six months imprisonment”.
24. The tenth document is a letter dated 20th May 1958 from the chief surveyor to advise Mr Phillips that the land owned by the defendant had been surveyed and subdivided into two equal parcels as requested by Mr Phillips.
25. The eleventh and twelfth documents were notices dated 12th March 1959 from Mr Phillips to two of the tenants on the land, namely, Filo Tuiafelolo and Soonalote, advising them that since the land has been purchased by Mrs Aiono Ruti their monthly rents were to be paid to his office. These notices are headed “re: Land Purchased by Mrs Aiono Ruti at Taufusi”.
26. The thirteenth and fourteenth documents are unsigned and undated letters of 1960 purported to have been sent by the landlord to people who were residing on the land without paying rent to leave the land. The landlord’s name is not mentioned in these letters of 1960.
27. The fifteenth document is a caveat dated 19th November 1970 lodged by Mrs Aiono against the land claiming an interest in the land pursuant to a Deed of Agreement to purchase made on 21st March 1956 between herself and the defendant “(a true copy of which is annexed hereto)”. The caveat refers to the undivided half share of the defendant in the land and was duly registered on 27th November 1970.
28. The sixteenth document is a letter dated 12th August 1972 from the law firm of Phillips and Loe to the defendant and her daughter Leilani Duffy regarding the unlawful removal of the boundary fence erected by Mrs Aiono between the property she had purchased from the defendant and the balance of the land. The defendant and her daughter were warned against any further acts of trespass. The Commissioner of Police was also informed.
29. The seventeenth document is a letter dated 1 September 1972 from a New Zealand solicitor James P. O’Reilly to Phillips and Loe advising that neither the defendant nor her daughter in any way authorized or had anything to do with the removal of the boundary fence erected on the land. The allegations against the defendant and her daughter were therefore unfounded. Mr O’Reilly must have received his instructions from the defendant or her daughter or both. It suggests that neither the defendant nor her daughter was objecting to the erection by Mrs Aiono and her family of the boundary fence between the part of the land she had purchased from the defendant and the balance of the land.
30. The last relevant document is a witness summons in criminal proceedings dated 14th March 1956 issued to Willie Hagedorn in relation to criminal proceedings between the police and the defendant Nuumoe Duffy of Taufusi, female. The summons shows that the defendant was charged with obtaining the sum of £70 from one Anna Hagedorn by means of a false pretense, to wit, by falsely representing that she was the owner of, could and was willing to sell, a certain piece of land at Taufusi. The hearing was to be held on 16th March 1956 at 9:30am in the High Court at Apia.

Evidence for the defendant

31. A statement of facts was prepared and submitted by counsel for the defendant. It shows the evidence that was given by the defendant at the hearing of this matter. In that evidence, the defendant mentioned that she at no time entered into an agreement to sell her land to Mrs Aiono and she had not received any money for such a sale. She denied the evidence of the plaintiff’s witness Taito that she had received money from his mother Mrs Aiono. However, she confirmed that Mr Phillips and Aiono had been at her to sign documents pertaining to her land. It was after Independence in 1962 that she discovered from Mr Jackson her solicitor that the land belonged to her and her brother Tuifono.
32. The defendant also gave evidence that she had frequent disputes with the Aiono family concerning their claim to ownership of part of the land. One of these disputes was when Mrs Aiono’s family erected a fence with concrete posts across her land. The defendant said she had this fence bulldozed down and chased Mrs Aiono’s husband and his lawyer off the land when they came to inspect the damage. This incident led to attention from the police. This part of the defendant’s evidence is inconsistent and in direct conflict with the letter of 1st September 1972 from the New Zealand solicitor Mr O’Reilly in response to the letter from Mr Phillips to the defendant and her daughter Leilani Duffy warning them against interference with the boundary fence erected by Mrs Aiono between the land she purchased and the balance of the land and against any further acts of trespass. The relevant part of the letter from Mr O’Reilly to Mr Phillips reads:
    • “I act on behalf of Miss Leilani Emelda Duffy of Auckland and also on behalf of her mother Mrs Nuumoe Duffy of Taufusi and am instructed to write to you in reply to your letter of the 12th August last addressed to both my clients to advise you that neither Miss Duffy or her mother in any way authorized or had anything to do with the removal of the boundary fence erected upon the land mentioned in your letter with the result that the allegations contained in your letter are unfounded and do not constitute any basis in law for any action for damages against either of my clients.

Yours faithfully,
James P. O’Reilly”

33. The defendant also said that the case in 1956 was against her mother alone and she remembers that her mother was fined £30. The Judge said nothing to her because it was her mother’s case. She pleaded with the Judge and the Judge released both her and her mother. She paid her mother’s fine of £30 as she did not want her to go to jail.
34. It was also said by the defendant that she did not know of Ropati Vaai and she had no account with his shop. It was her mother and her husband who had such an account.
35. Furthermore, the defendant said that Aiono had started using the land in 1952. Aiono and Mr Phillips had also told her that the sale was complete but it is not clear from the defendant’s evidence when that occurred. In 1969 she asked Mr Jackson to take steps to evict Aiono from her land. There is no evidence that such steps were ever taken by Mr Jackson.
36. The defendant also said that she, her mother, and Mrs Hagedorn went to see the solicitor Mr Coleman about the land and she stayed outside in the waiting room while her mother and Mrs Hagedorn went in to see Mr Coleman. The defendant said that Mr Coleman wanted her brother Tuifono to sign the papers but Tuifono refused to sign.
37. The defendant also said that she did not know who wrote the fourth document produced for the plaintiff in evidence and is referred to in para 16 of this judgment. In other words, the defendant is denying that she wrote that document.

Discussion

38. After careful consideration of the evidence, I have decided to accept the evidence of the plaintiff’s witness Taito that in 1955 the defendant came to their home at Vaiala and conversed with his mother. He was then called by his mother to come and count the cash of £600 being the purchase price for the land. His mother and the defendant then left to see Mr Phillips. I disbelieve the defendant’s denial of Taito’s evidence and what she said that she never received any money from such a sale. The first issue whether Mrs Aiono paid £600 to the defendant as the purchase price of the land must therefore be decided in favour of the plaintiff.
39. It is clear from the evidence that in 1952 and 1953 the defendant was in the frame of mind of selling her share of the land. Whether the defendant was genuine about selling her share of the land to Mr Rasmussen in 1952 and then to the Hagedorns in 1953 is immaterial. Her actions manifested a desire to sell her land. So when the defendant went to see Mrs Aiono in 1955 and £600 was counted by the witness Taito in her presence as the price of the land, the defendant had already manifested a desire to sell her land. In fact, the land would have been sold in 1952 or 1953 if the defendant’s brother Tuifono had agreed to sign the papers sent to him in New Zealand. But he refused to sign.
40. The documentary evidence also shows that in 1953 when the defendant went to see the solicitor Mr Jackson about her account with Mr Ropati Vaai which she had not paid, Mr Jackson asked her as to how she would pay for her account. Her reply was that if the sale of her piece of land to Aiono L is done she would be able to pay off her account. This shows that the defendant appeared to be in the frame of mind to sell her land to Aiono. Whether she was honest about it, that was how she would have appeared to a reasonable observer.
41. A Deed of Agreement dated 21st March 1956 was also prepared by Mr Phillips whereby the defendant agreed to sell her share of the land which consists of the eastern part to Mr Aiono for £600. Mr Phillips was the solicitor for Mrs Aiono and he must have prepared the deed on instructions by Mrs Aiono. Even though no signed copy of the Deed of Agreement was produced, there are references in Mr Phillips letter of 23rd April 1956 to Tuifono and his letter of 10th December 1956 to Mr J Bentley that the defendant had already entered into a written Agreement of Sale and Purchase of the eastern half of the land. There is also the application to caveat of 19th November 1970 by Mrs Aiono in which she claimed an interest in the land pursuant to a Deed of Agreement made on 21st March 1956 between herself and the defendant annexing a true copy of the Deed. The only problem is that a copy of the signed Agreement could not be produced. But even if one proceeds on the basis that there was no signed Deed of Agreement, the fact that Mr Phillips prepared such a document tends to suggest that such an Agreement was reached orally between the parties. As submitted by counsel for the plaintiff, the fact that a written agreement was prepared tends to suggest that there had been a prior oral agreement. The defendant, as earlier mentioned, denied that she entered into an agreement to sell her land to Mrs Aiono or received any money from such a sale. I am unable to believe the defendant.
42. There is also the letter dated 20th May 1958 from the chief surveyor to advise Mr Phillips that the land owned by the defendant and her brother Tuifono had been surveyed and subdivided into two equal parcels as requested by Mr Phillips. This request by Mr Phillips to the chief surveyor for subdivision of the land into two equal parcels must have been made on instructions from Mrs Aiono. Even if that were not so, the request must have been made on behalf of Mrs Aiono by Mr Phillips as solicitor and agent of Mrs Aiono.
43. It is also clear from the letters of 12th March 1959 by Mr Phillips to the tenants Filo Tuiafelolo and Soonalote advising them that the land had been bought by Mrs Aiono Ruti and their monthly rents were to be paid to his office, that by that time the land had already been bought by Mrs Aiono. Mr Phillips could not have worded those letters the way he did unless Mrs Aiono had actually bought the land. The evidence of the witness Taito also shows that there were other tenants brought onto the land by Mrs Aiono including a Japanese operating a sandal factory and a local businessman operating a packing and shipping business as well as a mechanical workshop and they were paying rent to his mother. The witness Fesuiai Tuiafelolo, another tenant on the land, also testified that she was paying rent to Mr Aiono the husband of Mrs Aiono and not to the defendant who was living next door. At one time, the defendant came and told her to leave the land. So she called Mr Aiono who came and told her and her family to remain on the land and they have continued to remain on the land up to the time of the hearing of this case. Again this is clear evidence to show that Mrs Aiono had bought the land and there must have been at least an oral agreement of sale and purchase between Mrs Aiono and the defendant.
44. There is also the evidence of the witness Taito that his family had constructed a building on the land to manufacture boxes for the export of bananas and they did not pay any rent to the defendant and her family and the defendant never required his family to leave the land or to pay rent to her. There was also no interference from the defendant with the building that Taito’s family built on the land and she never asked Taito’s family to dismantle the building and leave the land. This is clear evidence of actual occupation by Mrs Aiono and her family of the land which shows that Mrs Aiono had paid for the land and there must have been at least an oral agreement of sale and purchase between Mrs Aiono and the defendant.
45. The witness Taito also testified that his mother had a fence erected in the 1960s along the boundary between the land she had purchased from the defendant and the balance of the land. This was another piece of evidence that showed an assertion of title by Mrs Aiono to the land. The fence was later bulldozed to the ground on instructions by the defendant. Even though the defendant denied it at the time, she said in her evidence at the hearing that it was her who brought in a machine to bulldoze the fence to the ground. The fence was rebuilt by Mrs Aiono and Mr Phillips warned the defendant and her daughter Leilani Duffy against further acts of trespass. There is no evidence of any further interference by the defendant with the fence. Again, the erection of this fence and its being rebuilt goes to show that Mrs Aiono had purchased the land from the defendant by paying the purchase price and that at least there was an oral agreement for sale and purchase between her and the defendant.
46. There is also the evidence of the caveat dated 19th November 1970 lodged by Mrs Aiono against the title to the land claiming an interest in the land pursuant to an agreement for sale and purchase between herself and the defendant. Even though a signed copy of that agreement could not be produced, the fact of lodging a caveat against the title to the land claiming an interest in the land pursuant to an agreement of sale and purchase suggests that there was at least such an agreement though unsigned.
47. The evidence is therefore overwhelmingly in support of what the witness Taito said that the defendant came to their family at Vaiala and he counted the cash of £600 in the presence of his mother and the defendant who then left to see Mr Phillips. I will return to the evidence relevant to part performance later in this judgment.
48. In respect of the evidence of the defendant, I regret to say that I did not find her evidence credible. She said that she at no time entered into any agreement of sale and purchase with Mrs Aiono and she never received any money for such a sale. This is totally inconsistent with the evidence for the plaintiff which shows that she had entered into an agreement for sale and purchase to sell her land to Mrs Aiono for £600. It is also so inconsistent with the evidence for the plaintiff which shows that Mrs Aiono and her family had been in actual occupation of the land since the late 1950’s up to the time of the hearing to the exclusion of the defendant who had never brought any action to evict Mrs Aiono or her family. Even though the defendant said she asked Mr Jackson to evict Mrs Aiono and her family from the land, there is no evidence that Mr Jackson ever took any action to evict Mrs Aiono or her family. I therefore cannot believe that the defendant instructed Mr Jackson to evict Mrs Aiono and her family from the land.
49. Mrs Aiono and her family have also for so many years had many tenants on the land paying rent to Mrs Aiono and her family without interference from the defendant except for one isolated occasion when the defendant wanted the tenant Fesuiai to leave the land. When Fesuiai contacted Mr Aiono about this, Mr Aiono came and told her and her family to remain on the land and they had continued to live on the land up to the hearing of this case.
50. I also disbelieve the defendant’s evidence that the case in 1956 was against her mother alone and the Judge said nothing to her because it was her mother’s case. This part of the defendant’s evidence is inconsistent with a witness summons in criminal proceedings dated 14th March 1956 issued to Willie Hagedorn in relation to criminal proceedings between the police and the defendant Nuumoe Duffy of Taufusi, female. The summons has already been referred to in para 29 of this judgment. It shows that the defendant was charged with obtaining from one Anna Hagedorn the sum of £70 by means of false pretense and that the hearing was to be held on 16th March 1956 at 9:30 am in the High Court at Apia.
51. There was also the letter of 23rd April 1956 by Mr Phillips to Tuifono referred to in para 20 of this judgment. In that letter Mr Phillips informed Tuifono that his mother and the defendant had been charged and convicted the previous month in the High Court of obtaining certain monies by false pretense. Whilst Taufono’s mother was fined £30, the defendant was not to be called up for sentence if she observed three conditions. The third of these conditions was that the defendant must within 12 months pay in full the money owing to the victims of her offending or else sell her interest in the land to pay the people she had defrauded. In his letter of 10th December 1956 referred to para 22 of this judgment, Mr Phillips again informed Tuifono of the defendant’s conviction for false pretense and sentence on 22nd March 1956 and the requirement that the defendant must pay in full within 12 months the victims of her offending or else sell her interest in the land to pay the people she had defrauded. What was said in those letters contradicts the defendant’s evidence that the case in 1956 was against her mother alone and did not include herself.
52. I also disbelieve the defendant’s evidence that she did not have an account with Ropati Vaai; it was her mother and her husband who had such an account. This is totally inconsistent with the handwritten statement said to be dated 9 December 1954 and signed by the defendant which is referred to in para 14 of this judgment. As stated by the defendant in that statement:
    • “1953 I ran an account with Ropati Vaai, that account was for the purpose of providing me and my children for food, clothing, and also some cash which I needed for my own personal use...”
53. In view of the findings I have made on the defendant’s credibility, I have also decided to disbelieve her evidence that she did not know who wrote the undated and handwritten statement referred to in para 16 of this judgment. I am satisfied that either the defendant wrote parts of that statement or the statement was prepared on her instructions. The statement is in Samoan so it could not have been written by Mr Phillips or Mr Jackson. The information in the statement could only have been written by someone with the knowledge of and familiarity with this matter and who spoke fluent Samoan. In the circumstances, that person was much more likely to be the defendant than anyone else. The words in the statement: “My own wish is that my piece of land should be sold to Aiono R and the money should be kept by Mr Phillips until the whole of Mrs Ana Hagedorn’s (Tapu) and Ropati Vaai’s money is paid” could only be a reference to the money owed by the defendant to Mrs Hagedorn and the account she had with Ropati Vaai.

The doctrine of part performance

54. Counsel for the plaintiff relied in his written submissions on the equitable doctrine of part performance in support of the order sought for specific performance. Even though part performance was not expressly pleaded in the statement of claim, the key factual allegations upon which a claim of part performance might rest were pleaded. A similar situation existed in Nguyen v SM & T Holmes Ltd [2016] NZCA 581 but it was not treated as fatal. However, it is preferable that in a part performance case, if the plaintiff seeks to rely on part performance it should be expressly pleaded in the statement of claim.
55. The Statute of Frauds 1677 (UK) was intended to prevent the fraudulent allegation of certain types of contracts including contracts for sale of land and certain other transactions by requiring that there be evidence in writing of such contracts. Some of its provisions were enacted in various New Zealand statutes. The relevant statute in this context was the Contracts Enforcement Act 1956 (NZ) and in particular s.2 thereof: see Sale of Land (2000) by DW McMorland at 4.01.
56. Section 4 of the Statute of Frauds was replaced by s.40 of the Law of Property Act 1925 (UK). The effect of s.40 was that for an action for the specific performance of a contract for the sale of land or any interest in land to succeed, there must usually be a written memorandum of the contract signed by the defendant or by his duly authorised agent: see Snell’s Equity (1990) 29th ed pp.600-602. Section 40 of the Law of Property Act 1925 was repealed by the Law of Property (Miscellaneous Provisions) Act 1989 (UK). The effect of the Law of Property (Miscellaneous Provisions) Act 1989 is, firstly, a contract for the sale of land or disposition of an interest in land can only be made in writing which goes beyond the old requirement that there be written evidence of a contract and, secondly, the doctrine of part performance ceased to exist. Thus, there is no longer any doctrine of part performance in the UK.
57. As Samoa does not have a statute which requires that there should be some evidence in writing of an oral contract for the sale of land in order for such a contract to be enforceable, it is difficult to apply to a part performance case Article 111 of the Constitution which defines the term “law” to include “the English common law and equity for time being in so far as they are not excluded by any other law in force in Samoa”. This is because the Article 111 definition of the term “law” refers to “the English common law and equity for the time being”. But the doctrine of part performance was wiped out by the Law of Property (Miscellaneous Provisions) Act 1989 (UK) and no longer forms part of the English common law and equity.
58. In New Zealand, certain provisions of the Statute of Frauds 1677 were re-enacted in s.2 of the Contracts Enforcement Act 1956 (NZ). In terms of s.2 (2) of the Act, no contract to which the Act applies is enforceable by action unless it is in writing. This does not mean that such a contract is illegal or void; it only means that it is unenforceable But s.2 (3) provided an alternative method of making such a contract enforceable by expressly retaining the operation in New Zealand of the law relating to part performance. Section 2 has been replaced by s.24 of the Property Law Act 2007 (NZ) but the doctrine of part performance is expressly retained in s.26 so that part performance still applies in New Zealand.
59. Samoa does not have legislation similar to the UK and New Zealand legislations relating to oral contracts for the sale of land or disposition of an interest in land or to the doctrine of part performance. But I know that the legal profession has been for so many years operating on the basis that contracts for the sale of land or for the disposition of an interest in land must be in writing in order to be enforceable. In the recent case of Apia Quality Meats Ltd v Westfield Holdings Ltd [2009] WSSC 1, this Court, after referring to s.2 of the Contracts Enforcement Act 1956 (NZ) and s.24 of the Property Law Act 2007 (NZ), adopted the doctrine of part performance as stated in recent New Zealand authorities. I had some difficulty in taking that step because of the definition of “law” in Article I11 of the Constitution given that part performance was swept away in the UK in 1989 and the relevant UK and New Zealand statutes do not speak with one voice on the existence of part performance.
60. After further consideration, I have again decided to adopt the New Zealand position on part performance as I did in Apia Quality Meats Ltd v Westfield Holding Ltd [2009] WSSC 1. This is on the basis of the Court’s inherent jurisdiction. Alternatively, s.31 of the Judicature Ordinance 1961 provides:
    • “The Supreme Court shall possess and exercise all the jurisdiction, power, and authority, which shall be necessary to administer the laws of Samoa”.
61. In the case of T A Dellaca Ltd v PDL Industries Ltd [1992] 3 NZLR 88, Tipping J, after an extensive review, including a consideration of New Zealand, Australian, and English cases, concluded at p.109:
    • “[In] a part performance case the Court must consider three points which I would frame as follows:
      • “1. Was there a sufficient oral agreement such as would have been enforceable but for the Act?
      • “2. Has there been part performance of that oral agreement by the doing of something which:
        • (d) “(a) clearly amounts to a step in the performance of a contractual obligation or the exercise of a contractual right under the oral contract; and
        • (e) “(b) when viewed independently of the oral contract was, on the probabilities, done on the footing that a contract relating to the land and consistent with that alleged was in existence.
      • “3. Do the circumstances in which that part performance took place make it unconscionable (fraudulent in equity) for the defendant to rely on the Act?”
62. The essential elements of part performance stated by Tipping J in T A Dellaca Ltd v PDL Industries Ltd [1992] 3 NZLR 88, 109 were approved by the Court of Appeal in Mahoe Buildings Ltd v Fair Investments Ltd [1994] 1 NZLR 281, 287 and in Fleming v Beevers [1994] 1 NZLR 385, 391with one minor amendment. It was later applied by the Court of Appeal in Nguyen v SM & T Holmes Ltd [2016] NZCA 581, [32], where Duffy J, in delivering the judgment of the Court, said at [37]:
    • “[37] This Court in Mahoe Buildings Ltd v Fair Investments Ltd [1994] 1 NZLR 281 and Fleming v Beevers [1994] 1 NZLR 395 discussed the judgments given by the House of Lords in Steadman v Steadman [1976] AC 536. Although divergent views were expressed by their Lordships, it appears to be accepted that Steadman held that the old rule in Maddison v Alderson (1883) 8 App Cas 467 at pp 478-479 that mere payment of money would never be a sufficient act of part performance no longer represents the law. As noted in Burrows Law of Contract in New Zealand (2016) 5^th ed at p.303, Steadman does not state the converse, so the position of a purchaser’s deposit or part payment is unclear. According to Burrows, the payment of money will probably continue to be regarded as usually equivocal, but capable of being rendered persuasive by the surrounding circumstances. This view appears to have been accepted by Tipping J in T A Dellaca Ltd v PDL Industries Ltd [1992] 3 NZLR 88 at p.102”.
63. It is also important to bear in mind that the acts relied upon to enforce an oral contract for sale of land or for disposition of an interest in land must be acts of part performance by the plaintiff. As the Court of Appeal said in Mahoe Building Ltd v Fair Investments Ltd [1994] 1 NZLR 281 at p.287:
    • “We note the importance of the acts being those of the party relying on the part performance. This was underlined in Megarry and Wade, The Law of Real Property at pp.590-591:
      • “ ‘The act of part performance must have been done by the plaintiff who is seeking to enforce the contract; for if the party refusing to perform the contract has done the only act of part performance, there is no fraud but merely a loss to himself”
64. In Snell’s Equity (1990) 29th ed at p.600, the learned authors said:
    • “To bring the doctrine [of part performance] into play, it is necessary, first, that the acts be done by the plaintiff”.
65. In Sale of Land (2000) by DW McMorland at p.132, the learned author said in relation to an act of part performance:
    • “It must be an act done by, or on behalf of, or at the request of, the plaintiff. An act by or on behalf of the defendant fails to raise any element of dishonesty or fraud, in that a refusal by the defendant further to perform the contract merely causes loss to the defendant”.
66. Application of the Dellaca approach to this case
67. Applying the approach in TA Dellaca Ltd v PDL Industries Ltd to this case, the first question is whether there was a sufficient oral agreement as would be enforceable if not for the legal requirement that an agreement for sale and purchase of land should be in writing in order to be enforceable. There is more than ample evidence for me to conclude that there was an oral agreement made between Mrs Aiono and the defendant in 1955 or early 1956 whereby the defendant agreed to sell her half interest in the land which consisted of the eastern half to Mrs Aiono for £600. The following is the relevant evidence:
    • (a) The evidence of the plaintiff’s witness Taito which suggests that £600 was paid by Mrs Aiono in 1955 for the purchase price of the land when the defendant came to his family’s home at Vaiala.
    • (b) Taito’s evidence that after he counted the cash of £600 in the presence of his mother and the defendant, his mother and the defendant left to go to see the solicitor Mr Phillips.
    • (c) Documentary evidence which shows that a Deed of Agreement to purchase dated 21st March 1956 was prepared by Mr. Phillips. This deed refers to an agreement made between the defendant and Mrs Aiono whereby the defendant agreed to sell her share in the land which consists of the eastern part to Mrs Aiono for £600.
    • (d) Mr Phillips letter of 23rd April 1956 to Tuifono in New Zealand requesting Tuifono to execute a deed of partition of the land. In that letter, Mr Phillips advised Tuifono that the defendant has entered into a written agreement for the sale of her share in the land to a purchaser.
    • (e) Mr Philips letter of 10th December 1956 to Mr J Bentley a relative of Tuifono in Auckland, New Zealand. In that letter Mr Phillips again mentioned that the defendant has entered into a written Agreement for Sale and Purchase to sell her interest in the land, namely, the eastern half of the land.
    • (f) The subdivision of the land into two equal parcels, namely, parcels 501 and 502, on request of Mr Phillips as evidenced by the letter of 20th May 1950 from the chief surveyor to Mr Phillips. Mr Phillips must have acted on instructions by Mrs Aiono to request a subdivision of the land. Anyway, it was evidently an act done by Mr Phillips on behalf of his client Mrs Aiono : see Sale of Land (2000) by D W McMorland at p.32 cited in para 64 of this judgment.
    • (g) Mrs Aiono’s application to caveat dated 12th August 1972 wherein she claimed an interest in the land pursuant to a Deed of Agreement to purchase made on 21st March 1956 between herself and the defendant.
    • (h) Physical occupation of the land by Mrs Aiono and her family when they constructed a building on the eastern part of the land to manufacture boxes for the export of bananas without interference from the defendant.
    • (i) Mrs Aiono also had a fence erected on the boundary between the eastern and western parts of the land. Even though the defendant had the fence bulldozed to the ground in 1972, the fence was rebuilt and she never interfered with the fence again.
    • (j) Mrs Aiono and her family also brought tenants onto the land and those tenants paid rent to the Aiono family instead of the defendant.
    • (k) Tenants who were already on the eastern part of the land, like the plaintiff’s witness Fesuiai, ceased paying rent to the defendant and paid rent to the Aiono family.
68. From all of the above evidence, it is clear that the defendant and Mrs Aiono must have entered into at least an oral contract in 1955 or early 1956 for the defendant to sell her share of the land which consisted of the eastern half to Mrs Aiono for £600. Question one of the Dellaca approach is answered in the affirmative.
69. For the second question, there must be part performance by Mrs Aiono of her obligations under the contract. The acts of part performance relied upon are set out in the plaintiff’s statement of claim as follows:
    • (a) The purchase price of the land agreed to was £600 which was duly paid by Mrs Aiono to the defendant.
    • (b) It must have been Mrs Aiono who arranged for the Agreement of Sale and Purchase and deed of partition which were duly drawn up by Mr Phillips as her solicitor and agent.
    • (c) The efforts by Mr Phillips to have the said Agreement and deed of partition executed by Tuifono must have been done on behalf of Mrs Aiono.
    • (d) The subdivision of the land in 1958 into parcels 501 and 502 of equal areas on request by Mr Phillips to the chief surveyor. In the circumstances, Mr Phillips was acting on behalf of Mrs Aiono.
    • (e) Mrs Aiono’s caveat which was lodged against the land in 1972.
    • (f) Continuous and uninterrupted occupation of the land from the 1950s to the time of the hearing except for the isolated occasion when the defendant interfered with the boundary fence in 1972. There was no further interference by the defendant with the fence since that time.
    • (g) Various people had been leasing the land from Mrs Aiono and her family over the years and paying rent throughout to Mrs Aiono and her family.
70. From the above acts of part performance, I find that the oral contract entered into in 1955 or early 1956 between Mrs Aiono and the defendant had been part performed.
71. In respect of the third question whether the circumstances in which the acts of part performance had taken place make it unconscionable for the defendant to rely on the legal requirement that a contract for the sale of land or for the disposition of an interest in land should be in writing in order to be enforceable, I am of the clear view that the answer should also be in the affirmative.
72. For the above reasons, the claim of part performance succeeds.

Remedy

73. The plaintiff seeks the equitable remedy of specific performance to enforce the contract between Mrs Aiono and the defendant. In Snell’s Equity (1990) 12th ed at p.600, the learned authors stated:
    • “If the plaintiff has wholly or in part carried out his part of a parol agreement in the confidence that the defendant would do the same, the Court often orders specific performance on the ground that it would be a fraud on the defendant’s part not to carry out the contract. This is the doctrine of part performance”.
74. In Sale of Land (2000) by DW McMorland 12.32 at p.431, the learned author said:
    • “In a claim for specific performance the plaintiff must prove the evidence of the contract, that there is compliance with the Contracts Enforcement Act 1956 or the doctrine of part performance, and the breach or threat of breach by the defendant”.
75. In view of the above authorities, the order for specific performance sought by the plaintiff is the proper remedy in this case.

Result

76. For the foregoing reasons, specific performance is granted against the defendant or the administrator of her estate as she has passed away and against Tuifono or the administrator of his estate if he has passed away to execute the appropriate deed to partition the land into parcels 501 and 502 as the land has already been subdivided. The defendant or the administrator of her estate is then ordered to execute a transfer of parcel 502 to Mrs Aiono or the administrator of her estate.
77. Counsel to file memorandum as to costs in ten (10) days if agreement cannot be reached.

Patu F M Sapolu
Temporary Justice of the Supreme Court and
Former Chief Justice