Appeal Court rules in favour of SSAB and Samoa Breweries

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The Appeal Court has overturned its earlier decision deeming the caveat was unlawful, in December last year, on part of the land where the Samoa Stationery and Books is located. 

Today they ordered the land be registered in the name of Samoa Stationery and Books “but any dealing with it is prevented by the caveat”.

The decision was handed down by Chief Justice, His Honour Satiu Simativa Perese, Justice Peter Blanchard and Justice Rhys Harrison in favour of SSAB and Samoa Breweries following a hearing last month.

The Justices noted, that their earlier judgment was due to procedural defects in relation to the giving of notice to the caveators, the removal of the caveat was unlawful.

“We ordered the Registrar to re-register it. “The present position is that the land is registered in the name of Stationery but any dealing with it is prevented by the caveat.”

This appeal is between Clara Aitele Gray as the Administrator of the Estate of Kerita Maria Kolokita Pune against the AG’s office; Samoa Breweries and SSAB. Mrs Gray is represented by Leuluaialii Olinda Woodroffe.

The Justices noted in their earlier judgment they were not called upon to consider the effect of the caveat as against Breweries, that question being left for the present appeal which is against a decision of Justice Vui Clarence Nelson, which was delivered on 14 August 2020.

This is separate proceedings brought on 14 July 2014 by one of the caveators against her former solicitor, Mrs Ruby Drake, now named as the first respondent to this appeal, the Attorney General on behalf of the Ministry of Natural Resources and Environment and the second respondent, Breweries and Stationery.

Mrs Drake, who was exonerated by our earlier judgment of any negligence in respect of the removal of the caveat, and the Attorney General, who represents the Registrar of Land in the Ministry, have taken no part in the appeal. Their counsel was given leave to withdraw.

RELEVANT FACTS

According to the Justices in its 15-page ruling, the issues on the present appeal concern events between 1995 and 24 February 2014.

It will be recalled that from 21 September 1995 Breweries held a registered mortgage over the subject land securing advances on current account from time to time made to Vailima.

Molio’o Vaeluaga’s father, Vaeluaga Leilua, from whom Molio’o has now been found to have acquired the land by a type of fraud, died on 3 October 1997 at the age of 93.

In February 2002 Mrs Kirita Pune, the only daughter of Vaeluaga Leilua, discovered that the land had been conveyed to Molio’o and mortgaged by him.

The case against Molio’o was heard by the Chief Justice in February 2003 and the Appeal’s court has no information about the trial other than the summary of the evidence in the judgment delivered only after Stationery became the registered proprietor of the land.

“Molio’o died in 2004 but his children continued trading through Vailima Distributors and Breweries continued to make advances intended to be secured under the mortgage.

“At some later time – again, the materials before us do not reveal when – the trading account fell into arrears, which led Breweries to exercise its power of sale. No details of the sale or the process leading up to it have been given to us, but it has not been suggested that the sale price was inadequate or that in any way the process was deficient if the security extended to the advances made after Molio’o’s death.

“The allegation made against Breweries is that by the time of the death of Molio’o it was aware of how he had acquired the property from his father and that, at the time of the mortgagee sale, Stationery was also aware of this through its agent, Mr Ming Leung Wai, the husband of Stationery’s director and shareholder.

“At the time of the sale to Stationery, Mr Leung Wai held the office of Attorney General of Samoa. He is alleged to have improperly encouraged the Registrar of Land to remove the caveat.

“That allegation is based upon the fact that, as recorded in our judgment of 16 December 2021, the Registrar’s letter to the caveator notifying of an application to remove the caveat said that it was Mr Leung Wai who had made the application.

“However, that statement was plainly an error.

“The letter seeking issue of a notice to the caveator had been written on behalf of Breweries. The Registrar deposed that the reference to Mr Leung Wai was simply a mistake caused by a misreading of a chain of internal emails within the Ministry,” according to the ruling.

DECISION

The Appeal’s Court closely modelled on the scheme of Torrens title statutes in Australasian jurisdictions, the Samoan legislature plainly intended that the Act should operate in the same general manner as those other statutes, informed by the extensive case law that has interpreted and applied them.

Mrs Woodroffe’s submission that the Court should modify the application of the Act for cultural reasons must be rejected in the absence of anything in the Act indicating an intention to depart from familiar Torrens principles.

“Indeed, we found counsel’s submissions generally to be heavy on abstract appeals to the justice of this kind, urging this Court to create new forms of liability regardless of the Samoan statutory context, while being light on any constructive analysis of the factual issues at the heart of the case.

“It was unfortunate that counsel appeared unable to assist the Court with an analysis of what exactly it is alleged that Breweries and Stationery knew about the proceedings against Molio’o and why it is said to be arguable that they were fixed with notice of the voidability of his title and the unlawfulness of the exercise of the power of sale under the mortgage.”

The Appeal’s Court stated the appellant contends that there is an arguable case that Breweries had notice of her beneficial interest. Before considering the effect of any notice of the Court proceedings, it is convenient at this point to respond to the submission that after Molio’o’s death Breweries had no right to advance credit to unnamed persons not a party to any credit agreement or to the mortgage or to persons with no legal authority to secure loans against the land.

The Justices further noted it is alleged that Breweries had notice “by the Court proceedings in 2002”.

“No specifics are given to support this: the statement of claim does not say how Breweries would have known of them or what it must have known.

“All Mrs. Woodroffe could say when this was put to her was that the proceedings were “common knowledge” in Apia. She did not point to anything to support that statement, and even if it could be substantiated, such knowledge could range from knowledge by Breweries merely that there was in process a court case involving members of its mortgagor’s family to the knowledge of every detail of the evidence in the case.

“There has been no pleading of what Breweries is alleged to have known about the proceedings.”

Also, the Justices ruled the pleaded case against Stationery is even weaker.

“If it is not shown how Breweries could have had knowledge of any matter preventing it from exercising its power of sale, it is even less likely that Stationery could have known something more than Breweries which would have made its conduct dishonest when it purchased from Breweries.

“It is not pleaded that there was anything else that was irregular about the sale other than the irregularity in the removal of the caveat. But that is not a matter going to the validity of the sale.

“There was no dishonesty relating to it on the part of Breweries or Stationery when they had not otherwise been put on notice of the undue influence, as we have found.”

The Justices concluded the pleaded case against both Breweries and Stationery was untenable even on the most favourable view of the asserted facts.

“Our decision may produce a sense of injustice in the appellant, especially in light of the fact that prompt delivery of judgment by the late Chief Justice might have enabled her to retrieve the land from Molio’o, but the respondents are not responsible for the excessive delay by the 15 Chief Justice, and are now entitled to have the unsustainable proceedings against them terminated without further delay.

“It follows that the removal of the caveat by the Registrar, though unlawful, did not prejudice the appellant because, as her case against the respondents was unsustainable, they would at the time of the registration of the transfer to Stationery have succeeded in an application to remove it.”

The appeal is dismissed with costs of $5000 payable by the Appellant to each of the third and fourth respondents, and to Registrar of Land is directed to remove caveat 837X from the title to the subject land.