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Gibbons v Mauff [2019] WSSC 36 (9 August 2019)

SUPREME COURT OF SAMOA
Gibbons v Mauff [2019] WSSC 36


Case name:
Gibbons v Mauff


Citation:


Decision date:
9 August 2019


Parties:
IN THE ESTATE
of SAMUEL GIBBONS late of Taumeasina and Leone American Samoa. BETWEEN
MATAUAINA PASI, LEOI MA’A of Taumeasina and MOANA LAM YUEN of Lalovaea, married woman, for and on behalf of the descendants of Samuel Gibbons AND HUGO MAUFF of Auckland, New Zealand, now deceased and now substituted by OSCAR MAUFF of Lotopa, Lecturer AND TUPUOLA SOLA GEORGE HUNT of Lotopa
Second Respondent


Hearing date(s):



File number(s):



Jurisdiction:
Civil


Place of delivery:
Supreme Court of Samoa, Mulinuu


Judge(s):
Patu F M Sapolu.
Temporary Justice of the Supreme Court and
Former Chief Justice


On appeal from:


Order:


Representation:
K C Drake for plaintiff
T S Apa for first respondent
T K Enari for second respondent


Catchwords:
genealogies –heirs – resulting trust


Words and phrases:


Legislation cited:


Cases cited:
In re the Estate of Tu’i [1996] WSSC 1;
In re the Estate of Pule Nimo [1999] WSSC (1999) (unreported judgment of Sapolu CJ delivered on 8 October 1999)
Stowers v Stowers [2018] WSCA 15


Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU


IN THE ESTATE
SAMUEL GIBBONS late of Taumeasina and Leone American Samoa.


BETWEEN


MATAUAINA PASI, LEOI MA’A of Taumeasina and MOANA LAM YUEN of Lalovaea, married woman, for and on behalf of the descendants of Samuel Gibbons.
Applicants


A N D


HUGO MAUFF of Auckland, New Zealand, now deceased and now substituted by OSCAR MAUFF of Lotopa, Lecturer.
First Respondent


A N D


TUPUOLA SOLA GEORGE HUNT of Lotopa
Second Respondent


Counsel:
K C Drake for plaintiff
T S Apa for first respondent
T K Enari for second respondent


Judgment 9 August 2019


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

Proceedings

  1. In these proceedings, the Court had to deal with three motions. These were the motion by the applicants, the motion by the first respondent, and the motion by the second respondent. The motion by the applicants sought declaratory orders that:
  2. The grounds in support of the applicants motion were that:
  3. The first respondent’s motion which was in reply to the motion by the applicants sought declaratory orders that:
  4. The grounds in support of the first respondent’s motion were that:
  5. The second respondent’s motion sought orders that:
  6. The grounds in support of the second respondent’s motion were that:
  7. The applicants consented to the second respondent being joined as a party to these proceedings. There was also no objection from the first respondent to the second respondent being joined as a party. Accordingly, leave was granted to have the second respondent joined as a party to these proceedings.
  8. Before having to deal with the said motion by the applicant and the said motion by the second respondent, the Court had to deal with the applicants amended motion of 11 August 2005 to revoke the letters of administration in respect of the estate of Samuel Gibbons deceased that was granted to Hugo Mauff, the father of the first respondent Oscar Mauff, on 12 December 2001. The applicants motion to revoke the said grant of letters of administration was opposed by the first respondent by a motion dated 31 January 2005. However, the grant of the said letters of administration was subsequently revoked by consent on 12 August 2005.

Relevant rules of evidence

  1. It is not clear why it took so many years before these proceedings were brought to Court. As a result, these proceedings are based on events that occurred very many years ago. However, it was agreed at the commencement of these proceedings that hearsay evidence from the parties would be allowed in without objection from counsel. It would then be up to the Court to decide what evidence to accept or reject and what weight should be given to each part of the evidence that is accepted. The Court has previously had to deal with similar instances of hearsay evidence: see In re the Estate of Tu’i [1996] WSSC 1; In re the Estate of Pule Nimo [1999] WSSC (1999) (unreported judgment of Sapolu CJ delivered on 8 October 1999).
  2. With the recent enactment of the Evidence Act 2015, important changes have been made to the rules regarding the admissibility of hearsay evidence. The relevant provisions of the Act together with the relevant principles regarding genealogical evidence were considered and discussed in Stowers v Stowers [2018] WSCA 15, paras 32 – 34, where the Court of Appeal said:
  3. In Fuimaono v Public Trustee [2018] WSCA 17, paras 48-49, the Court of Appeal said:
  4. With those principles in mind, I turn now to consider the evidence in this case.

The evidence

(a) Evidence by and for the applicants

  1. At the hearing of this matter, all three applicants Matauaina Pasi (48 years), Leoi Maa (aka Moeleoi Maa) (59 years), and Moana Lam Yuen (74 years) gave evidence. They also called several members of their Gibbons family to testify as witnesses. These included Ualetenese Gibbons (52 years), Leaupepe Mani Gibbons (72 years) and Viola Puni (53 years). They also called as a witness one Tagi Tafeamaalii (76 years) who is a lifetime neighbour of their family at Taumeasina where the disputed land is located. The evidence of the applicants and their witnesses were given through sworn affidavits and oral testimonies.
  2. According to the overall evidence of the applicants and members of their family, the history of the Gibbons family as passed down through their parents and generation upon generation of their family is that their family started with an English man by the name of Henry Gibbons (aka Henry Ross Gibbons) who came to American Samoa in the second half of the nineteenth century. Henry Gibbons married one Mareta Afamasaga from Fasitootai and they lived in Leone, American Samoa. Henry Ross Gibbons was known amongst the Samoan people as “Ene Losi”. He and Mareta Afamasaga had eight children, the eldest of whom was Samuel Gibbons.
  3. The history of the Gibbons family as further related by the applicants and members of their family is that in or around the year 1900, Samuel Gibbons, his younger brother George Gibbons (aka Nove), his son Ene Losi Gibbons, his sister Emalaine, and Emalaine’s daughter named Mataiumu all came to Samoa from American Samoa. They initially stayed on the Wilson land at Taumeasina as Samuel Gibbons and Mr Wilson were friends.
  4. Samuel Gibbons, his brother Nove, and his son Ene Losi were builders and they built churches around Upolu and Savaii whilst Samuel Gibbons’ sister Emalaine and her daughter Mataiumu kept house for them and looked after them. There was also some evidence from the applicants witness Viola Puni that Mataiumu worked at the then Casino Hotel in Apia. This must have been the Casino Hotel that was located where the Tanoa Hotel is now located. With the money earned from the building of churches, the family bought the land at Taumeasina which is the subject of the present dispute. The land was registered under the name of Samuel Gibbons because he was the eldest in the family.
  5. The applicants and their family strongly and firmly denied that Samuel Gibbons was married to one Faataape, as claimed by the first and second respondents, and that he came together with her from American Samoa to Samoa in 1900. They also strongly denied that Samuel Gibbons made a will giving the land at Taumeasina to his wife Faataape whose descendants include the first respondent and that Samuel Gibbons and Faataape adopted faa- Samoa the children of Faataape from her previous marriage.
  6. The applicants and members of their family also testified that in 1922/1923 Samuel Gibbons and his sister Emalaine returned to American Samoa. Samuel Gibbons subsequently died in American Samoa and is buried at Leone. The applicants and their family also strongly denied that Samuel Gibbons died in Upolu in 1918 during the influenza epidemic and was buried at the common grave at Vaimoso as claimed by the first and second respondents.
  7. According to the applicants, when Samuel Gibbons and Emalaine returned to American Samoa in 1922/1923, Ene Losi the son of Samuel Gibbons and Mataiumu the daughter of Emalaine remained on the land at Tuameasina with their respective families. Ene Losi married Lululima of Vaiala and was subsequently bestowed with the title “Tialino” of Vaiala. Nove, the younger brother of Samuel Gibbons got married to a lady of Gataivai, Savaii, and was living with his wife in Gataivai at the time though the evidence showed that Nove returned at his old age to Taumeasina where he later died. He is buried at the cemetery of the Gibbons family at Taumeasina.
  8. Other evidence given by and for the applicants in support of their motion were that they have never known a person named Faataape or any of her descendants living in their family at Taumeasina; secondly, it is the applicants and their family who have always been in physical occupation of the land from the time it was bought by the Gibbons up to now; thirdly, neither Faataape nor any of her descendants is buried on the land, only members of the applicants family are buried in the family cemetery on the land; and fourthly, they have never seen the first respondent or any of Faataape’s descendants at any of the meetings or faalavelaves of the Gibbons family at Taumeasina in order to show that they have any family connection to the Gibbons family and the disputed land at Taumeasina.
  9. The applicant Matauaina Pasi (Matauaina) also said that she is a great great granddaughter of Samuel Gibbons. Matauaina’s father was Fonoia whose parents were Samuela and Falepau. Samuela’s father was Ene Losi whose father was Samuel Gibbons. Matauaina testified that her great grandfather Ene Losi had a wife and daughter named Susi in American Samoa before he came with his father Samuel Gibbons, his uncle Nove, his aunty Emalaine and her daughter Mataiumu to Samoa in or around 1900. Susie came years later to Samoa and lived on the land at Taumeasina looking after her father Ene Losi. Both Ene Losi and Susie are buried at Taumeasina. Matauaina also said that many descendants of Samuel Gibbons were born and lived at Taumeasina and up to now it is the descendants of Samuel Gibbons and his sister Emalaine who are still living on the land. Her father Fonoia had lived all his life at Taumeasina and she had never heard her father mentioned the name of Faataape or any of her children or that any such people ever lived on the land at Taumeasina.
  10. Matauaina also said she has been living at Taumeasina since she was eight years old and she has never heard of Hugo Mauff, the father of the second respondent, and his family, until in or around 1990 when her father Fonoia was very ill and Hugo Mauff came and tried to get her father to sign some paper claimed to be related to Samuel Gibbon’s will. Matauaina said her father refused to sign any paper and informed Mr Hugo Mauff he could not confirm the paper he had brought with him.
  11. Like the applicant Matauaina, the applicant Leoi Maa (Leoi) is also a great great granddaughter of Samuel Gibbons. Her mother Salota was a daughter of Samuela and Falepau. The father of Samuela, as earlier mentioned, was Ene Losi the son of Samuel Gibbons. Leoi was born at Taumeasina in 1942 and lived at Taumeasina until she moved to New Zealand in 2005.
  12. In addition to the matters already referred to, Leoi said that the history of the Gibbons family as handed down through her parents and generation upon generation of her family makes no reference to or mention of a person named Faataape or her son Mekeli and that they accompanied Samuel Gibbons from American Samoa to Samoa and that when they arrived in Samoa they went and lived in Siumu. Leoi also said that the history of her family as told and retold over the years from generation to generation of her family also makes no mention of any person by the name of Simo Mano Vao who gave evidence for the first respondent. According to Leoi, her mother Salota who was born in 1927 spent most of her life living at Taumeasina to help care for her grandfather Ene Losi who suffered from filariasis. Ene Losi died in 1953 and is buried at Taumeasina. Salota never mentioned that there was ever anyone by the name of Faataape or Simo Mano Vao in their family at Taumeasina.
  13. Leoi further said that she recalls that in or around 1988 Mr Hugo Mauff, the father of the first respondent, approached her family at Taumeasina and requested some land to build his house on. When she asked her mother who that person was her mother replied that she did not know him or his family.
  14. The applicant Moana Lam Yuen (Moana) who was born in 1931 is a granddaughter of Emalaine the sister of Samuel Gibbons. Moana’s mother was Mataiumu the daughter of Emalaine. In other words, Moana was a grandniece of Samuel Gibbons.
  15. In addition to what has already been referred to, Moana said that when her grandmother Emalaine and Samuel Gibbons returned to American Samoa, her mother Mataiumu remained on their family’s land at Taumeasina. Her mother first married a German national. She subsequently married a Chinaman called Lam Yuen and they had four sons and herself, the youngest and their only daughter. Her parents initially lived at Taumeasina but later moved to live at Saleufi.
  16. Moana said that when she was a young child, her mother Mataiumu used to take her and her young brother Sam to visit her cousin Ene Losi Gibbons and her family at Taumeasina. Her mother would also take her and Sam with her when she visited her friend Matautu and her German husband Mauff at their property at Lotopa on which they kept cattle. Moana’s understanding was that her mother and Matautu became friends through Mr Mauff and her mother’s first husband being German nationals. Moana was ten or eleven years at the time and this was where she first saw Hugo Mauff the father of the first respondent.
  17. Moana further said that there was a period during which she lived at Taumeasina with her family and throughout all that time as she was growing up she had never heard of Faataape (the first respondent’s grandmother) being married to Samuel Gibbons. None of her family or any of their elderly neighbours at Taumeasina are aware of this person Faataape and the name Faataape is also unknown among her family.
  18. Moana also said that Ene Losi who died in 1953 and his uncle Nove are both buried on their family’s land at Taumeasina. Likewise, is her mother Mataiumu who died in 1965 at the age of 85 years.
  19. Moana also recalled that in or about 1988, Hugo Mauff came to see her at Lalovaea and handed to her a fresh looking document. When she queried what that paper was, Mr Mauff replied it was “Losi’s will”. When she asked Mr Mauff where he brought the paper from, he said that his mother Matautu had kept it. Moana said that she then told Mr Mauff that her own family had made enquiries with the Public Trust Office when it was located where the Immigration Office used to be near the Apia Fire Station but were informed there was no will by Losi. Moana also did not know when Mr Mauff applied for letters of administration of the estate of Samuel Gibbons on 7 December 2001 claiming that Samuel Gibbons died intestate. Mr Mauff was granted letters of administration of Samuel Gibbons estate on 12 December 2001. Anyhow, the applicants Matauaina Pasi, Leoi Maa, and Moana Lam Yeun subsequently moved to revoke the grant of letters of administration of Samuel Gibbons estate to Mr Mauff when they came to know about it. The grant of letters of administration was subsequently revoked by consent on 12 August 2005.
  20. The witness Ualetense Gibbons (Ualetenese) is a pastor in New Zealand. He is a great great grandson of Samuel Gibbons. Ualetenese’s father was Fonoia Gibbons who was the son of Samuela Gibbons. Samuela Gibbons father was Ene Losi Gibbons whose father was Samuel Gibbons. Ualetenese lived and grew up on his family’s land at Taumeasina until he left for New Zealand in 1975 when he was about 22 years old. Later in life, he returned almost every year to visit his family at Taumeasina.
  21. In addition to the evidence already referred to, the witness Ualentenese said that he used to hear about the history of his family from his father Fonoia and his father’s cousin Tialino Herman Pani Traviranus. I need not repeat the whole of that history as it has already been referred to in this judgment. According to the evidence of Ualetenese, before his great grandfather Ene Losi came to Samoa from American Samoa, he was married to a woman in American Samoa and they had a daughter named Susie. When Ene Losi came to Samoa Susie and her mother remained in American Samoa. Later in life when Susie came to Samoa, she ended up staying at Taumeasina looking after her father Ene Losi.
  22. Ualetenese said that after Ene Losi died and Susie became quite old, he spent a lot of time with Susie looking after her and he learnt some of his family’s history from her. During all of that time, Susie never spoke of anyone by the name of Faataape or that Samuel Gibbons married such a person. There was also no mention of any person by the name of Mekeli. When Susie passed away, she was buried in the family cemetery at Taumeasina.
  23. The witness Leaupepe Mani Samuela Gibbons (Leaupepe) was a great grandson of Samuel Gibbons. Leaupepe’s father was Samuela Gibbons the son of Ene Losi Gibbons whose father was Samuel Gibbons. The evidence given by Leaupepe is substantially the same as the evidence of the applicants and the other witnesses for the applicants. Essentially, what Leaupepe said was that even though he grew up at his mother’s family at Fasitoo-uta, when he was about 20 years old he visited his father’s family at Taumeasina about every week because his father Samuela was living at Taumeasina to look after his father Ene Losi who was a very sick man from filariasis. At no time did Leaupepe hear the name Faataape being mentioned by his father. There was no such person in their family. There was also no person by the name of Simo Mano Vao who came to Taumeasina to look after Ene Losi as it was his father Samuela and his older brothers Faatoto and Fonoia who looked after Ene Losi. When Ene Losi passed away in 1953, he was buried in the family cemetery at Taumeasina.
  24. Leaupepe also said that he has never seen anyone representing Faataape or her family or anyone representing the first respondent or his family attend any of the numerous gatherings of the Gibbons family or assist with their family faalavelaves over all these years. For instance, in 1953 when Ene Losi passed away there was no representative of Faataape’s family present at the funeral and in 1968 when Susie, the daughter of Ene Losi passed away, there was also no presentative of Faataape’s family present at her funeral.
  25. Leaupepe further said that he is aware that George Gibbons (aka Nove) the younger brother of Samuel Gibbons has descendants but he is not familiar with them as he has never seen any of Nove’s descendants come to Taumeasina or make themselves known to his side of the family. However, Leaupepe confirmed that Nove returned and lived at Taumeasina at his old age and he died at Taumeasina and is buried at Taumeasina.
  26. The witness Viola Puni (Viola) is a great granddaughter of Emalaine the sister of Samuel Gibbons and Nove. Viola’s father was Sae a son of Mataiumu the daughter of Emalaine. The evidence of Viola Puni is substantially the same as that of the applicants and the other members of the Gibbons family regarding the history of the Gibbons family and their ownership and occupation of the land at Taumeasina.
  27. According to Viola’s evidence, when her grandmother Mataiumu came with her family from American Samoa, they lived with the Wilson family at Taumeasina where she gave birth to her two uncles Sione in 1911 and Pupi in 1914. Viola’s father Sae was born at Saleufi in 1921 and moved to stay at Taumeasina when he was about 17 years.
  28. Viola said that according to the history of her family Nove, the younger brother of Samuel Gibbons, did not live at Taumeasina for long. When Nove got married to a lady of Gataivai, Savaii, he lived at Gataivai with his wife. Nove only returned to Taumeasina when he was very old. He subsequently passed away at Taumeasina and is buried at Taumeasina. Viola also said that in 1988 a man named Hugo Mauff approached Fonoia, Salota, Sae and Moana and requested a piece of their land at Taumeasina for him to build a house on. After Hugo Mauff left, she asked her father Sae who that man was. Her father’s reply was that he does not know Hugo Mauff and they were not related to him and that is why they have declined his request. Viola has also never heard of a person named Faataape or of a person named Simo Mano Vao residing in their family at Taumeasina.
  29. In 1996, Viola and other members of her family was sent for by the Public Trust Office to attend a meeting at their office. Viola attended the meeting with her husband and Sauni Ofisa together with the applicants Matauaina Pasi, Leoi Maa, and Moana Lam Yeun. Also present at this meeting was Hugo Mauff and two members of his family. Mr Mauff requested the Public Trustee who was administering the estate of Samuel Gibbons for some land for him to build a house. Sauni Ofisa spoke on behalf of the Gibbons family and requested the Public Trustee for the matter to be discussed between the two parties themselves. The outcome of that discussion was that the request by Mr Mauff was declined by the applicants and their side.
  30. Viola further said that about two months later, the first respondent Oscar Mauff, who is the son of Hugo Mauff, met with Leaupepe Mani Gibbons, Matauaina Pasi, Leoi Maa, Moana Lam Yeun, and herself. At that meeting, the first respondent relayed his father’s wish for the land at Taumeasina to be equally divided between Mr Mauff and the Gibbons family. Leaupepe replied on behalf of the Gibbons family and declined the request.
  31. The witness Tagi Tafeamaalii (Tagi), a retired schoolteacher, is a lifetime neighbour of the Gibbons family at Taumeasina. She was 76 years of age at the time of the hearing of this matter. Tagi said that the Gibbons land is next to the Wilson family land which directly adjoins her family’s property at Taumeasina where she grew up over the years. She knows the Gibbons family very well as she grew up with members of the Gibbons family such as Fonoia and she often visited their house. In later years when she married, she would still visit the Gibbons family with her children.
  32. Tagi said that she had never seen or heard of a woman by the name of Faataape or any of her family members residing on the Gibbons family land at Taumeasina. The people who lived at Ene Losi’s house were all Gibbons. There was never any other person who lived on the Gibbons land.

(a) Evidence by and for the first respondent

  1. The evidence of the first respondent Oscar Mauff was given principally through his affidavit and then by some oral testimony. His witness Simo Mano Vao also gave his evidence by affidavit and oral testimony.
  2. The affidavit of the first respondent contained very few factual allegations by the first respondent himself but consisted mainly of documents annexed to it. These documents were an affidavit by one Tautoga Mamea (Tautoga) of Vaimea which seems to have been sworn on 16 August 1989, a statutory declaration by Tautoga Mamea dated 28 August 1991, a report dated 4 August 1994 from the manager of estates in the Public Trust Office to the Public Trustee, an affidavit of Hugo Mauff, the first respondent’s father, sworn on 18 May 2000, another affidavit of Hugo Mauff sworn in Auckland, New Zealand, on 13 February 2002, a grant of letters of administration of the estate of Faataape Gibbons dated 16 July 2002 to Hugo Mauff, and an order granting resealing of the probate of the estate of Hugo Mauff who died at Auckland on or about 9 January 2003. This shows that Hugo Mauff passed away before the hearing of this matter.
  3. The said report dated 4 August 1994 from the manager of estates of the Public Trust Office to the Public Trustee appears from part “2” thereof to have been based on information provided by the first respondent himself and another person called Ropati Nuu to the Public Trust Office. It is not clear who this person Ropati Nuu was. According to this report, Samuel Gibbons married twice. His first marriage was to one Ma Falepau which produced no heirs. Samuel Gibbons then “adopted” in the customary way one Tialino Ene whose son was Fonoia. There is no mention of where this Tialino Ene came from but it is the heirs of Fonoia, the son of Tialino Ene, who were in occupation of and laying claim to the land at Taumeasina.
  4. According to the report, when the first wife of Samuel Gibbons passed away, Samuel Gibbons married one Faataape. This Faataape was previously married to a man called Simo. They had three children, namely, Matautu, Mekeli, and Leula. When Simo passed away, Samuel Gibbons and Faataape got married and they “adopted” in the customary way the three children of Faataape from her previous marriage to Simo. Matautu then married Oscar Mauff a German national. They were the parents of Hugo Mauff the father of the first respondent.
  5. In the affidavit of Hugo Mauff sworn on 18 May 2000, Mr Mauff said that he was born at Vaiala in 1923 and his parents were Oscar Mauff and Matautu. His maternal grandmother Faataape Gibbons was living with his parents on freehold land at Taumeasina. Faataape died in 1934 when Hugo Mauff was eleven years old. Mr Mauff’s affidavit shows that Faataape was buried at Magiagi and not Taumeasina.
  6. Hugo Mauff also said in his affidavit that when he was grown up, his grandmother Faataape told him that she and Samuel Gibbons were married in 1898 at the Vaiala LMS Church where they worshipped every Sunday. Faataape also told him that Samuel Gibbons died during the great epidemic in 1918 and was buried in one of the comon graves at Vaimea.
  7. It is not clear from the material before the Court why the affidavit of 16 August 1989 and the statutory declaration of 28 August 1991 of Tautoga (annexed to the affidavit of the first respondent) were prepared because they appear to have been prepared so many years before the hearing of these proceedings. The first time those documents appeared in relation to this matter was when they were filed in support of the application by Hugo Mauff on 7 December 2001 for a grant to him of letters of administration of the estate of Samuel Gibbons. This was twelfth years after the affidavit of 1989 and ten years after the statutory declaration of 28 August 1991. Tautoga must have passed away before the hearing of this matter because she did not appear at the hearing to produce or confirm her affidavit or declaration.
  8. According to the affidavit and statutory declaration of Tautoga, Faataape was her grandaunt. Her grandmother Selaina Mano and Faataape were sisters. Tautoga said that at one stage of her life she lived with Faataape at Taumeasina. She further said that after Faataape’s first husband died, Faataape married Samuel Gibbons in 1898 and they lived on Samuel Gibbons property at Taumeasina. Samuel Gibbons died in 1918 during the great epidemic and was buried in the common grave at Vaimoso. Faataape died in 1934 at age 71 years and was buried at Magiagi.
  9. In the affidavit of Hugo Mauff sworn on 28 September 2001 in support of his motion for a grant to him of letters of administration of the estate of Samuel Gibbons, Mr. Mauff said that the deceased Samuel Gibbons was married to his grandmother Faataape in or about 1898 at the LMS Church at Vaiala as evidenced by the annexed statutory declaration dated 28 August 1991 of Tautoga Mamea and by what Mr. Mauff said his grandmother Faataape told him. Mr. Mauff further said in his affidavit of 28 September 2001 that as further evidence that his grandmother Faataape was lawfully married to the deceased Samuel Gibbons a photocopy is annexed of what would appear to be a testamentary document in the handwriting of the said Samuel Gibbons in which he declared Faataape to be his wife. The said document, according to Mr. Mauff in his affidavit was held by his grandmother Faataape who passed it on to his mother Matautu who in turn passed it on to him. I have looked closely at this document which is annexed to the statutory declaration of Tautoga dated 28 August 1991. There is nothing in the statutory declaration or elsewhere to confirm that the handwriting in the said document was in fact that of Samuel Gibbons. There is also no witness to the name of Samuel Gibbons signed on the document. The document is also undated. The original of the document was also not produced. Mr. Mauff, as earlier mentioned, also did not appear at the hearing to produce or confirm the document as he had passed away. I therefore exercise great caution about accepting this document as authentic without more evidence to support its authenticity.
  10. In the affidavit of Hugo Mauff sworn on 13 February 2002 in support of his motion for a grant to him of the letters of administration of Faataape’s estate, Mr. Mauff said that his grandmother Faataape died at Vaiala in 1934 and was survived by her children Matautu a female, Mekeli a male, and Leula a male. He also said that Faataape died intestate, that is, without a will.
  11. There is then a photocopied document dated 29 June 1911 addressed to Faataape of Taumeasina annexed to the first respondent’s affidavit. This document appears from its contents to relate to a land transaction at Siumu between Faataape and one Poai and not to Samuel Gibbons or anything at Taumeasina. The first respondent relied heavily on this document to support his contention that there was actually a person called Faataape residing at Taumeasina in 1911. There was no evidence as to the state of photocopying technology in Samoa at that time.
  12. The first respondent’s witness Simo Mano Vao (Simo) said that he is the son of Mekuli whose mother was Faataape and that he was born at Taumeasina on 23 November 1925. So Faataape was Simo’s paternal grandmother. He said he lived at Taumeasina for the first 20 years of his life before the left to live with his relatives (the Mauffs) at Lotopa. So Simo must have left Taumeasina in or about 1945.
  13. Simo also said that his paternal grandmother Faataape told him when he was a youngster that she was living with Simo’s grandfather in New Guinea as missionaries. His grandfather passed away in New Guinea where Simo’s father Mekuli was born. His grandmother Faataape and his father Mekuli then left New Guinea and came to American Samoa where she met her new husband Samuel Gibbons aka Losi. Samuel Gibbons, Faataape, Mekuli, and Tialino then moved from American Samoa to Samoa and settled at Siumu before they moved to Lotopa and settled at the Mauff’s property. There Faataape and Mekuli stayed while Samuel Gibbons and Nove went to Savaii to build churches. Simo said that with the money Samuel Gibbons earned from building churches, Samuel Gibbons and Faataape bought the land at Taumeasina. Faataape and Mekuli then settled on the land at Taumeasina where Simo was later born. Simo was 9 years old when his grandmother Faataape passed away in 1934 and was buried at Magiagi. He was, as earlier mentioned, 20 years old when he left Taumeasina for Lotopa.
  14. It would therefore appear that Simo was quite young, at the most 9 years old, when his grandmother Faataape related to him what he has told the Court in his evidence. There was no mention in Simo’s evidence of what had happened to Tialino who came with Samuel Gibbons, Faataape, and Mekuli from American Samoa when Samuel Gibbons and Nove went to Savaii to build churches. There was also no mention that Tialino was a son of Samuel Gibbons. It was also not clear how Nove the younger brother of Samuel Gibbons “came on to the scene” as there was no mention that Nove came with Samuel Gibbons, Faataape, and the others from American Samoa. There was also no mention of Matautu and Leula the other children of Faataape amongst the people who came with Samuel Gibbons or what had happened to them at the time Samuel Gibbons is alleged to have gone to Savaii to build churches. There was also no mention by Simo that his father Mekuli was adopted by Samuel Gibbons and Faataape.
  15. It also appears from Simo’s evidence that it was Samuel Gibbons and his wife Faataape who purchased the land at Taumeasina with the money that Samuel Gibbons earned from building churches. There was no mention that Nove, Ene Losi, or Emalaine had made any contribution to the purchase of the land at Taumeasina. That being so, it would appear that Nove, Ene Losi, and Emalaine would have no interest in the disputed land.
  16. Simo also said that while he was living at Taumeasina he used to care for Tialino because he was a very sick man and could not walk. He used to carry Tialino to the Vaipuna Ocean for a swim. In his supplementary affidavit, Simo explained that Tialoino was able to get about by leaning on him with one hand and using a walking stick with the other to go to the sea at Fuisa’a. Simo further said that Tialino used to send him by horse to his daughter Susie at Luatuanuu to get bananas, taros, or breadfruit.
  17. Finally, Simo said in his supplementary affidavit that if it were not for the marriage of his grandmother Faataape Mano to Losi Samnuel Gibbons, he would not have been born and raised at Taumeasina on Losi Samuel Gibbons land and he would not have known any members of the Gibbons family at Taumeasina. As earlier mentioned, at no time did Simo say that his father Mekuli was adopted by Samuel Gibbons and Faataape.

(b) Evidence by and for the second respondent

  1. he evidence by and for the second respondent Tupuola Sola George Hunt consisted primarily of his amended affidavit. The matai title “Tupuola” is from the village of Siumu. The second respondent said that he was born on 19 August 1944. He is a great grandson of Nove George Gibbons (aka Nove) the younger brother of Losi Samuel Gibbons. His mother Tu’imanuula Palea Rokeuaina Patu (Tu’i) was a daughter of Tu’imanuula who was the daughter of Nove.
  2. The history of the Gibbons family given by the second respondent was very similar to the history of the Gibbons family relayed by the applicants and their witnesses. The second respondent said that the father of his great grandfather Nove and his older brother Samuel Gibbons was Henry Ross Gibbons from England and their mother was Mareta Afamasaga from Fasitootai. Samuel Gibbons and Nove were builders and they came from Leone, American Samoa, and built churches in Upolu and Savaii. While they were building a church at Gautavai, Nove married a lady named Faaleasi Mapuilesua of Gataivai and their daughter was Tu’imanuula, the second respondent’s grandmother. The second respondent said that with the money Samuel Gibbons and Nove earned from building churches, they bought the land at Taumeasina and put it under the name of Samuel Gibbons because he was the older of the two.
  3. It also appears from the evidence of the second respondent that Samuel Gibbons and Nove together with their sister Emalaine and her daughter Mataiumu as well as Samuel Gibbon’s son Ene Losi Gibbons all came from Leone, American Samoa, and stayed at Taumeasina with Faataape, Nove’s wife and daughter Tuimanuula, Mekuli, Simo, and other family members. It would appear from the second respondent’s evidence that Samuel Gibbons and Nove first came from Leone, American Samoa, and built churches in Upolu and Savaii. It was after they had bought the land at Taumeasina with the money they earned from building churches that Ene Losi and Emalaine and her daughter Maitauma came from American Samoa and they all lived on the land at Taumeasina.
  4. The second respondent further said that Samuel Gibbons and Faataape were married at the Vaiala LMS Church around 1890. He said that he requested a search for the record of the marriage of Samuel Gibbons and Faataape around 1890 at the archives at the head office of the EFKS Church at Tamaligi but he was informed that there were no records at the archives of the EFKS Church for that period. The second respondent was then advised to enquire with the pastor of the EFKS Church at Vaiala. That was done and, by letter dated 13 September 2005, the pastor of Vaiala informed the second respondent that the Vaiala EFKS Church had no records of marriages prior to 1956.
  5. The second respondent also said that his mother Tu’imanuula told him that Samuel Gibbons died in 1918 and is buried in a common grave at Vaimoso whereas Faataape died in 1934 and was buried at Magiagi. His great grandfather Nove and his grandmother Tu’imanuula both died at Taumeasina and are buried in the Gibbons family graveyard at Taumeasina.
  6. The second respondent also related that Samuel Gibbons had made a will on 3 April 1913 written in his own handwriting. He believed the will was not witnessed because Samuel Gibbons was not aware that it was necessary to do so. The second respondent said that it was related to him by his mother that Samuel Gibbons gave copies of his handwritten will to his wife Faataape and his adopted son Mekuli who both explained this to his mother. The second respondent then said that his mother received from Faataape and Mekuli a photocopy of the handwritten will of Samuel Gibbons. Does this mean that there was photocopying technology at the time of Faataape who died in 1934?
  7. As already mentioned, Hugo Mauff said that Samuel Gibbons died intestate, that is, without a will. In his affidavit sworn on 28 September 2001 filed in support of his motion for a grant to him of letters of administration of the estate of Samuel Gibbons, Mr. Mauff said in paras 7-8:
  8. The document referred to as annexure “C” in para. 7 of Mr. Mauff’s affidavit of 28 September 2001 is the same document referred to in the second respondent’s evidence as the will of Samuel Gibbons. With respect, I agree with Mr. Mauff that the said document was not a will. One of the requirements for a valid will is that the signature of the testator or the maker of the will must be attested by at least two witnesses. The document referred to in the second respondent’s evidence as the will of Samuel Gibbons was not attested by any witness. There was also no cogent evidence to show that the handwriting in the said document was in fact the handwriting of Samuel Gibbons. The original of the said document was also not produced if, indeed, there was an original. In the circumstances, the Court would have to be extremely cautious before accepting the said document as a will or testamentary document by Samuel Gibbons.
  9. The second respondent also referred in his evidence to the same document referred to by the first respondent in his evidence which is the copy of an official document dated 29 June 1911 and addressed to Faataape at Taumeasina. It strongly suggests that there was a person called Faataape living at Taumeasina at that time. This document, as earlier mentioned, refers to a land transaction between Faataape and Poai in Siumu and not to anything at Taumeasina.

(c) Evidence of other relevant witnesses

  1. s Filisita Heather, the principal land registration officer in the Ministry of Natural Resources and Environment (MNRE), was called as a witness to give evidence in relation to certain documents kept in the custody of the Ministry. She referred first to the photocopy of the Land Register Vol 2 Folio 292 showing the registered proprietor to be Samuel Gibbons. This document is annexed to the affidavit of the applicants witness Leoi Maa. She then said that the date “13th October 1921” shown on the top left quadrant of Folio 292 means the date on which the information on Folio 292 was copied from the Samoa Land Records Volume 2 Folio 216. It does not mean that that was the date the land was purchased. So the land at Taumeasina registered under the name of Samuel Gibbons must have been acquired prior to the 13th of October 1921.
  2. Ms Filisita Heather further said that the old German file that was translated into English by the witness Ulrike Hertel and produced in evidence is one of the old German files kept in the records of the MNRE.
  3. The evidence of the witness Ulrike Hertel, who was the principal archives officer in the Ministry of Education, consisted of the English translations of the documents contained in the old German file marked as “Land Files (Grundakten) on the Estate of the Halfcast Sam Gibbons, called Losi, and of the Samoan Tofaeono”. The documents in the said file show that the land in dispute was part of Court Grant 158 and registered under the name of the halfcast Sam Gibbons called Losi.

Discussion

  1. It is very uncommon to have cases before this Court which involve histories of families and their genealogies that go back in time for more than a century. But this is quite common in cases which involve matai titles that come before the Land and Titles Court where there are very often disputes relating to family genealogies that go back to more than one, two, three, or even four hundred years ago. In all such cases, the genealogies adduced in evidence by the parties are conflicting; the intensity of the conflicts vary from case to case. Accounts given by the parties of events that occurred centuries ago are also often conflicting and self-serving. It is therefore inevitable that the Land and Titles Court in every case pertaining to a matai title has to deal with evidence that is not only hearsay but also very conflicting. Based on the experience and expertise of the Judges as well as their knowledge of the Samoan people’s way of life, the Land and Titles Court has over the years identified factors to look for when dealing with such cases. I have presided over countless such cases in the Land and Titles Court over the last twenty-seven years.
  2. I do not propose to consider and discuss every conflict between the evidence of the parties. There are so many of them that several parts of the evidence must be either mistaken or false. Bearing in mind what was said by the Court of Appeal in Stowers v Stowers [2018] WSCA 15, paras 32-34, and the approach of the Land and Titles Court to the type of case which involve conflicting genealogies and accounts of events that occurred in the past, I have decided that the true beneficiaries of the land in dispute at Taumeasina are the applicants and the second respondent, that is to say, the heirs of Samuel Gibbons whose son was Ene Losi Gibbons who held the title “Tialino” of Vaiala, the heirs of Nove George Gibbons the younger brother of Samuel Gibbons, and the heirs of Emalaine the sister of Samuel Gibbons and Nove George Gibbons. I will now explain why I have come to that conclusion.
  3. Even though the oral evidence for the first respondent claimed that Ene Losi Gibbons (Ene Losi) was an adopted son of Samuel Gibbons, the evidence for the applicants and the second respondent was that Ene Losi was a natural son of Samuel Gibbons. After careful consideration of this part of the evidence, I have decided to prefer the evidence for the applicant and the second respondent. Except for the bare assertion given in the evidence for the first respondent that Ene Losi was an adopted son of Samuel Gibbons, there was no other evidence to support that bare assertion. It is totally inconsistent with the oral evidence given by and for the applicants and the evidence given by the second respondent. The evidence from all of the parties, especially the applicants, clearly suggested that Ene Losi and his heirs had lived on the land at Taumeasina all of the time up to now. When Ene Losi was an old and sick man, he continued to remain on the land and was looked after and taken care of by members of his family. He died in 1953 and was buried at Taumeasina. His heirs are still in occupation of the disputed land land. If anything, this evidence tends to support the evidence of the applicants and the second respondent that Ene Losi was a natural son of Samuel Gibbons and not an adopted son as claimed by the first respondent.
  4. I also do not accept the claim by the first respondent as supported by the second respondent that Samuel Gibbons was married to Faataape around 1890 and that they “adopted” in the customary way the three children of Faataape from her previous marriage to one Simo. These three children were Matautu, Mekuli, and Leula. Matautu later married Oscar Mauff a German national and their son was Hugo Mauff the father of the first respondent.
  5. In the first place, there is no documentary record to confirm that Samuel Gibbons was married to Faataape. A search of the records of the EFKS Church, which is the successor to the LMS Church that came to Samoa in 1830, could not locate the existence of any records of any marriages around the period 1890 or 1900. Secondly, if Samuel Gibbons married Faataape and adopted in the customary way Faatape’s children, then why was Faataape buried at Magiagi instead on the land at Taumeasina which was bought by Samuel Gibbons. It also appeared from the evidence that none of Faataape’s children Matautu, Mekuli, and Leula or any of their descendants is buried at the Gibbons family graveyard at Taumeasina to show that they have a family connection to the disputed land. Thirdly, the unopposed evidence given by and for the applicants was that they have never seen any of the heirs of Faataape or representatives of Faataape’s family at any of the meetings, gatherings, or faalavelaves of the Gibbons family at Taumeasina to confirm that they have any family connection to the Gibbons family. Fourthly, there was no evidence to show that any of the children of Faataape carried the surname Gibbons to confirm that they were adopted by Samuel Gibbons and Faataape. There was also no evidence to show that any of their descendants carried the surname Gibbons.
  6. In respect of the document dated 29 June 1911, that document was addressed to “Faataape at Taumeasina”. Taumeasina is not just the land which is the subject of these proceedings. It is a much bigger area than the disputed land. So while the document was evidence that there was a person called Faataape at Taumeasina in June 1911, it is not necessarily conclusive evidence that Faataape was living on the disputed land. The said document also refers to a land transaction between Faataape and Poai at Siumu; it does not say anything that Samuel Gibbons was married to Faataape and that they adopted in the customary way the children of Faataape from her previous marriage to Simo.
  7. In respect of the alleged adoption in the customary way of the children of Faataape from her previous marriage, there was no evidence adduced by the first and second respondents as to how such a customary adoption took place. My own knowledge and experience, not only as a Samoan, but from cases involving disputes over matai titles that come before the Land and Titles Court, is that no formalities are required for the common type of customary adoption that we used to have. A woman with a child from a previous union when married to a new husband might bring with her to the family of her new husband her child from her previous union. This child would grow up in the family of his stepfather as a member of his stepfather’s family. When he becomes an adult he would serve his stepfather and his stepfather’s family as if it was his own true family. He would get married while living in his stepfather’s family and his descendants would grow up and live and serve within the family of their father’s stepfather. His grandchildren, that is to say, the children of his children, would also be born and serve within the family of their great grand stepfather. Such people would be called the “adopted heirs” of the family or the “suli tamafai o le aiga.” There is nothing like the formal adoption that is done in present day legal adoptions. However, what the first and second respondents were saying in this case was that when the alleged marriage of Samuel Gibbons and Faataape took place they “adopted” the children of Faataape from her previous marriage almost straightaway like what happens under a modern adoption. I am conscious that there is a type of customary adoption called “vaetama” or “vaegatama” which is quicker than the usual process of adoption that I have referred to. But “vaetama” or “vaegatama” is not the type of adoption that is alleged here.
  8. It also appears from the evidence for the first respondent that the last descendant of Faataape to have lived on the land at Taumeasina was Simo Mano Vao who assisted in taking care of Ene Losi who was suffering from filarasis. If that is true, then Simo said that he left Taumeasina and moved to Lotopa when he was 20 years old which must have been 1945. So there was no more descendant of Faataape living on the land at Taumeasina at least from 1945 up to now. There is also no descendant of Faataape buried in the graveyard of the Gibbons family on the land. Futhermore, none of them ever attended to the meetings, gatherings, and faalavelaves of the Gibbons family at Taumeasina to confirm any family connection.
  9. In respect of the will of Samuel Gibbons alleged by the second respondent, I have already stated that the document claimed to be a will of Samuel Gibbons is not a will at all as it does not meet the requirements of a valid will. There was also no satisfactory evidence to show that the handwriting on the document alleged to be a will of Samuel Gibbons was indeed the handwriting of Samuel Gibbons. Mr Hugo Mauff in his sworn affidavit of 28 September 2001 filed in support of his motion for a grant to him of letters of administration of the estate of Samuel Gibbons expressly stated that after a diligent search for any will or testamentary writing signed by Samuel Gibbons, he was unable to find any such document. He therefore believed that Samuel Gibbons died intestate. The fact that none of Faataape or her children or their descendants is buried on the land also tends to show that Samuel Gibbons did not make a will giving the land at Taumeasina to Faataape and Faataape passed it on to her children Matautu, Mekuli, and Leula. Only Ene Losi, Mataiumu, Nove, and members of their family are buried in the graveyard on the land which is evidence that goes to confirm their authority over the land. The question that comes to mind is why the family of the first respondent did not object at any time over all these years to the occupation of the disputed land by the family of the applicants and particularly the burial of members of the applicants and second respondent’s family on the land if indeed Faataape and her heirs have an interest in the land.
  10. I have also decided to accept the evidence by the applicants Matauaina Pasi, Leoi Maa and the other heirs of Ene Losi the son of Samuel Gibbons that the land in dispute was bought by Samuel Gibbons, his son Ene Losi, his brother Nove George Gibbons and his sister Emalaine. It appears that the family that came from Leone, American Samoa, was Samuel Gibbons, Ene Losi, Nove George Gibbons, Emalaine Gibbons and her daughter Mataiumu. Whilst Samuel Gibbons, Ene Losi and Nove were building churches in Upolu and Savaii, it was their sister Emalaine who looked after and cared for them. So her contribution to the family was very much in kind but nonetheless an important contribution. The applicants Matauaina Pasi, Leoi Maa and the witnesses who are all heirs of Samuel Gibbons agree in their evidence that the land is held under the name of Samuel Gibbons for himself, his son Ene Losi, his younger brother Nove George Gibbons, and his sister Emalaine. In other words, the disputed land is held under the name of Samuel Gibbons on the basis of a resulting trust for himself and his heirs, Ene Losi and his heirs, Nove and his heirs, and Emalaine and her heirs. The family must have been very close to one another at the time they came from Leone, American Samoa, to Samoa.

Conclusions

  1. From the foregoing, I have come to the following conclusions: -
  2. In the circumstances of this case, each party to bear their costs.

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

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