The Supreme Court has dismissed a claim by a family at Sogi against the Government over its decision to evict them from land they have lived on their entire lives.
The decision in the hearing of the lawsuit by the family of Nanai Tokuma was handed down by Supreme Court Justice Leiataualesa Daryl Clarke after a Court hearing in February this year.
During Justice Leiataualesa’s decision, he said the proceedings of the matter were brought by the plaintiffs as alleged heirs and descendants of Turaroe Tokuma on behalf of the members, beneficiaries and heirs of Turaroe Tokuma.
Essentially, the plaintiffs claim arises out of land situated at Sogi that they claim in their pleaded case was given to them by way of gift to Turaroe Tokuma, his wife and their four children by the then Commissioner of Crown Estates of Samoa and also the Public trustee, Percival Ernest Patrick.
Lawyer Pau Mulitalo represented Nanai’s family while T. Peniamina and DJ Fong of the Attorney General’s Office represented the Government.
The following is Justice Leiataualesa’s ruling in full:
It is trite law as His Honour Nelson J said in Fuimaono v Public Trustee  WSSC 33 to say that he who brings a claim must prove it and the standard of proof that applies is that on balance of probabilities. His Honor Nelson J went on to say at paragraph 54 of that judgment: ‘In the words of the eminent jurist when referring to the proof of a plaintiff’s case: “It must carry a reasonable degree of probability........ If the evidence is such that the tribunal can say:” We think it more probable than not”, the burden is discharged, but if the probabilities are equal it is not.” (Denning, J in Miller v Minister of Pensions  2 All ER 372 at 373).’
In South Island Deepwater Fisheries Ltd v Attorney General CA151/94, 27 March 1996, the New Zealand Court of Appeal stated the standard of balance of probabilities in the following terms:
“In every civil case the evidence must be such as to satisfy or convince the Judge, on the balance of probabilities, that the party on whom the onus lies has established the facts in issue. What degree of evidence will bring the Judge’s mind to that position will vary according to the gravity of the allegation, as in the case of fraud: Hornal v Neuberger Products Ltd  3 All ER 970…”
In my recent judgment in Alofitai Hansell v Attorney General sued for and on behalf of the Ministry of Police (Unreported) 4 May 2018, I also commented on the tendency of counsel to undervalue the importance of pleadings and the requirement that counsel understand the elements of each cause of action and the facts which are then essential to prove each cause of action. The pleadings in these proceedings are in parts cumbersome and confusing but most critically, the evidence necessary to underpin the causes of action was not led by the Plaintiffs either through their sole witness called or through the calling of expert witnesses who may have given relevant evidence on the matters before the Court. Indeed, parts of the Plaintiffs evidence ran contrary to their pleaded case.
The Plaintiffs proceeding against the Defendant advanced various causes of action against the Defendant. There was however no evidence to establish the existence of a gift of the Sogi land to the Plaintiffs or their ancestors; a breach of a proper purpose; a breach of legitimate expectation; or the existence or breach of any contract. Appropriately therefore on the basis of the absence of relevant evidence or indeed the Plaintiffs’ evidence being contrary to their pleaded case, counsel for the Plaintiffs withdrew various causes of action pleaded leaving only two remaining for determination. These remaining claims were firstly for unjust enrichment and secondly, proprietary estoppel by encouragement or acquiescence.
For the reasons that follow, the Plaintiffs who bear the onus of proving their case on the balance of probabilities have failed to do so and by some way.
These proceedings are brought by the Plaintiffs as alleged heirs and descendants of Turore Tokuma on behalf of the members, beneficiaries and heirs of Turore Tokuma (Amended Statement of Claim, paragraph 1). Essentially, the Plaintiffs claim arises out of land situated at Sogi (“the Sogi land”) that they claim in their pleaded case was given by way of gift to Turore Tokuma, his wife and their four children by then Commissioner of Crown Estates of Samoa and also the Public Trustee, Mr Percival Ernest Patrick (Amended Statement of Claim, paragraph 6 and 7).
The hearing for this matter proceeded on the 26th February and 8th March 2018 on the Plaintiff’s Ex Parte Motion for Orders dated 14th October 2016 ordered Inter Partes (“the Motion”) and the Amended Statement of Claim dated 10th July 2017.
The Motion sought orders, as relevant to this judgment for:
a declaration that the title to the Sogi land occupied by the Plaintiffs and the Tokuma family belong to the Tokuma family;
declaring the occupation by the Tokuma family of the Sogi land as lawful;
Declaring that the Sogi land occupied by the Tokuma family should be conveyed and registered under the Tokuma family; and
An order for interim injunction to estop the Defendant on behalf of the Government of Samoa from relocating the Applicants from the Sogi land until the substantive proceedings in the motion are concluded.
The grounds pleaded in support of the Motion can be summarized as:
the ‘land’ was gifted by the Commissioner of Crown Estates Percival Ernest Patrick and then Prime Minister Fiame Mata’afa Mulinu’u II to the Tokuma family for more than one hundred years;
there were further verbal assurances by then Prime Minister Fiame Mata’afa Mulinu’u II to continue to live on the land further legitimizing the gift of the land from Mr Patrick;
the equitable grounds stated in the Amended Statement of Claim;
the relocation plan for Sogi is unlawful;
the motive and purpose of the Respondents use of the land are ‘inspired’ by bad faith and improper purposes; and
the Respondents have trespassed through direct and indirect interference by staff and agents causing annoyance and humiliation to the Plaintiffs.
The Plaintiffs’ Amended Statement of Claim also sought similar declarations:
that the Plaintiffs are descendants and beneficiaries of the estate of Turore Tokuma;
that the Plaintiffs are lawful owners of the Sogi land;
judgment against the Defendant for the costs of these proceedings; and
such further or other relief as the Court deems just.
The causes of action pleaded and orders sought by the Plaintiffs were pleaded:
at paragraph 16.5(A) - an order for the Defendant to file a proper account of the Defendant’s administration of the Estate of Turore Tokuma (“the Estate”);
at paragraph 16.5(B) and (C) - the transfer of Estate assets to the Plaintiffs as the estate assets remain in the control of the Defendant;
eviction of agents of the Defendant from the “said land reclaimed land owned by the applicants (Plaintiffs) and their beneficiaries”;
at paragraph 17 - estoppel by representation, proprietary estoppel and estoppel by convention;
at paragraph 18 - breach of an ‘outright gift’;
at paragraphs 19 – 24 - “Breach of a Proper Purpose”. The Plaintiffs sought a declaration that “there was a breach of natural justice by the Defendant regarding the relocation plan” and “an order restraining the Defendant from interfering with the Plaintiffs directly or indirectly with their land at Sogi”;
at paragraphs 29 – 33 - breach of “substantive legitimate expectations, namely, ‘this cause of action arises from (a) an error that creates an unfairness because the person affected has acted in reliance of the previous decisions (b) abuse of power and (c) breach of a specific promise;
at paragraphs 34 – 36, Breach of Contract; and
at paragraph 37, unjust enrichment.
Unexpectedly, the sole witness called by the Plaintiffs was the first named Plaintiff Nanai Tokuma (“Mr Tokuma”). Mr Tokuma’s evidence in relation to statements allegedly made to him by his mother and father were objected to by the Defendant on the grounds of hearsay. That evidence was received on a provisional basis subject to my ruling as to admissibility. I will set out Mr Tokuma’s evidence and then rule on the admissibility of that evidence objected to by the Defendant.
Mr Tokuma gave his name as Liutofagaomataafa Tokuma. He told the Court he was born on the 1st June 1940 and resides at Sogi. His father was Turore Tokuma, a Solomon Islander. His mother was Ulalemamae Leiataua. According to Mr Tokuma, his father passed away on the 5th September 1957. A copy of Mr Tokumas’s birth certificate and his father’s death certificate was not tendered, as would ordinarily be the case. This however is not fatal and I accept Mr Tokuma’s evidence about his parentage and the date of his father’s death.
In his evidence, Mr Tokuma said he did not know what brought his father to Samoa. His father however was the driver for a Percival Ernest Patrick (“Mr Patrick”) who he said was a German (transcript: p.6, 26/02/2018). He said his father started driving for Mr Patrick about 7 years prior to his parents living together (transcript: p.10 26/02/2018) which he then said “oute talitonu po’o se mea o le 1890 agai i luma poo se mea faapena” (transcript: p.11, 26/02/2018). He also said that in 1927, his father had been working for 4 years (transcript p.10, 26/02/2018). He then accepted when put to him by his counsel that his father started driving for Mr Patrick in about 1920. While Mr Tokuma’s evidence was ambiguous, it seems that his evidence was that his father had started driving for Mr Patrick in the early to mid 1920s.
Mr Tokuma said that when his father worked for Mr Patrick, his father lived at the Government owned Casino Hotel. Mr Patrick lived upstairs and his father downstairs in a two bedroom accommodation. He said that Mr Patrick was like a father to his father and he a son to Mr Patrick.
Key to the Plaintiffs claim to the Sogi land was his father’s alleged arrest, trial and sentence to death for the alleged killing of a Chinese businessman. In his evidence, Mr Tokuma described the circumstances leading to his father’s alleged arrest for the death of a Chinese businessman at pp.7 – 8 of the transcript on 8 March 2018 as follows:
“Wit O le tala a lou tama ia te au a manava mai i le afiafi i lana galuega o le ave taavale ona sau lea e vaai poo iai se faatonuga o loo iai se tagata maliu (tulou) e momoli i sona aiga i le po a leai ona alu loa laia e tafao i Vaitele.
Mulialo O le a la le mea na tupu? E iai se isi mea ete manatua sa ta’u atu e lou tama?
Wit Ona tala mai ai lea o lou tama i le foi mai i le tasi po, e faalogo atu i Lepea o pa’o mai totonu o le faleoloa o le Saina.
Mulitalo Faamatala pea la le faamatalaga lea a lou tama ia oe o le a la le mea na tupu?
Wit Ona alu lava lea o ia e taunuu atu i le fale fesili mai le loomatua sa fai ma ona tina, o fea sa e iai o le tali a le toeaina sa ou tafao i Vaitele.
Mulitalo O fea sa nofo ai lou tama i le taimi lea? O le a sana tala ia oe?
Wit O lou tama sa nofo i le casino hotel o luga fogafale muamua e nonofo ai le toeaina ma lona faletua ao lalo o loo iai le fale e lua potu moe o loo nofo ai.”
In describing his father’s alleged arrest, trial and the circumstances leading to his alleged death sentence being set aside, Mr Tokuma continued with his evidence (transcript: p.10, 08/03/2018):
“Wit O le ma talanoaga lea o le moliaga lea o ia i le moliaga o le fasioti tagata ae na te lei iloa se mea e tasi lea na ou faamatala atu e tusa o lana sau mai Vaitele e alu i Sogi, e faalogo atu o patia patā mai totonu o le faleoloa ae alu a ia ona taunuu atu loa lea i le fale ae ua foi mai ai leoleo. Sa fesili loa le loomatua poo fea sa iai o le tali filemu a sa ou tafao i Vaitele.
Mulitalo E iai se isi mea ete manatua sa talanoa atu ai lou tama ia te oe?
Wit E lei umi a ae omai loa leoleo avatu ia ave loa ia loka, o le Aso Gafua na sosoo ai fai le faamasinoga ae iu ai le faamasinoga e sisi (tulou).
Mulitalo E iai se isi mea na ta’u atu e lou tama ete manatua?
Wit Sa alu lava ma le faalologo alu a ma le usiusitai sa saunia uma mea aua le faasalaga sei oo lava ina ua taunuu i le aso e faataunuu ai le faasalaga, e savali loa o le a faaaoga mea ia na fau mo le faasalaga ae tamomoe mai loa saina e toalua ma valaau mai e leai o matou na fasia le faipisinisi. O le faamatalaga lea i lau afioga.”
Critically, Mr Tokuma did not link his father’s alleged conviction and sentence to death to their occupation of the Sogi land. He said in evidence (transcript: p. 10, 08/03/2018):
“Mulitalo Fa’atali talanoa mai pea i le mea lea na fai atu ai lou tama ia oe
Wit Ua uma ai
Mulitalo Ete manatua se tala a lou tama i le mea lea tou te iai i le taimi nei?
Wit E leai.”
In describing the circumstances in which his father recounted him these events, Mr Tokuma explained (transcript: p.6, 08/03/2018):
“Mulitalo Na faafefea na faamatala uma atu e lou tama mea ia ia te oe?
Wit E masani ona manava lou tama ona faimai lea e ma te o ona ma o lea i tua i le togatogo ona ou uua lea o le taga e ma te o ma te eli pa’a ona faamatala mai lea ia te au i le taimi atoa a lea
Mulitalo Ete manatua o le a lou matua i le taimi lea?
Wit Poo le 12 i le 13.”
Mr Tokuma then also gave evidence about the alleged involvement of then Prime Minister Fiame Mata’afa Mulinu’u II. This evidence was directly inconsistent with the pleaded case for the Plaintiffs where the Plaintiffs for example plead that when Mr Tokuma and his family approached the then Prime Minister, the then Prime Minister stated words to the effect of “You can live on that land; it is your land where your mother and all her descendants can live on because the government cannot pay your father…” (Amended Statement of Claim, paragraph 17.6). Confusingly, the Amended Statement of Claim appears to recount the same conversation but differently worded in paragraphs 9 and 18.1.4 of the Amended Statement of Claim.
In any event and contrary to the Plaintiffs pleadings, Mr Tokuma said that he was about 13 or 14 years of age at the time. He and his mother went to Lepea. His mother went inside and spoke with the then Prime Minister and he waited outside. After she met with the Prime Minister, his mother came out and said nothing to him about her meeting with him. He explained that he was not involved in that discussion (transcript: p. 11, 08/03/2018):
“Mulitalo Sa e iai i le taimi ete manatua o le a se mea na talanoa iai?
Wit Mo le silafia e lau afioga o mea nei o fanau e leai a se isi e latalata i o i le mea e talanoa ai tagata matutua.
Mulitalo Na fai atu sana tala ia oe e uiga i le feiloaiga lea?
Wit E leai.”
Mr Tokuma importantly acknowledged that his mother and father never said a word to them that the land they live on is land for them. In his evidence (transcript: p.6, 26/02/18), Mr Tokuma said:
“Wit Ona o le matou nonofo fa’atasi ma o matou matua, e lei faapea mai se upu I gutu a o matou matua o lou tou fanua lena e pei o le mea lena ua mafua ai. Sa matou nonofo ma le fiafia pau le upu a lo matou tina ia o le tou fanua lena tou te nonofo.”
He then again stated (transcript: p. 11, 08/03/18):
“Mulitalo E iai se isi mea ete manatua mai i le feiloaiga lea poo se tala na fai atu e lou tina ia te oe?
Wit O lau tala na fai i lau affidavit e lei iai se upu mai i gutu o matou matua o le fanua lea matou te nonofo ai o se fanua mo i matou.” (Emphasis added)
In explaining how they came to occupy the Sogi land, Mr Tokuma said (Transcript: p. 8, 08/03/18):
“Wit Faimai le loomatua na fai atu i le toeaina e fai i le tamaloa i se mea e fai ai so latou fale i tua ona malie loa laia o le toeaina. Ua manava mai i le afiafi ona o loa lea sasa le fanua ua sasa ai lava ua uma ona teu, sa fai ai lo latou fale sa fai ai ma le fale e nofo ai le aoao Malua sa asia le latou aiga ma le nuu. O le faamatalaga lea ma le faaaloalo
Mulitalo Yes your Honour – e iai la se isi mea ete manatua na ta’u atu e lou tina ia oe?
Wit Ina ua uma le galuega ua uma lelei fai le fale tapena mai latou iai nonofo ai loa. Ia pau lava le mea sa fai nao le tapena lava o le fanua, tapena lava o le fanua e aunoa lava ma se upu a lo matou tina ma lo matou tama o lou tou fanua lea tou te nonofo ai. Ona o le tulaga o iai e tau leai nisi i lea alalafaga.”
In his evidence, Mr Tokuma said that he believed his family began living on the land after 1930. He said (transcript: p.12, 08/03/18):
“Mulitalo O le a le umi talu ona tou nonofo ai?
Wit Afai o le 37 na faaipoipo ai ou matua ao le 35 na faatu ai le lotu ona ou talitonu lea poo luma mai o le 30.
Mulitalo E toute nonofo la i o o la ua uma ona faaipoipo tou matua i le 1937, e sao?
Wit E nonofo i o ou matou ma le fanua a ua leva ona nonofo ae faatoa faaipoipo i le 1937.
Mulitalo Lea na e taua le sasaina o le fanua ma teu oa nisi mea ete manatua?
Wit o le tanu tanu lava ma faaea le eleele aua e le o se eleele matutu.”
In addition to clearing the land, Mr Tokuma said that they also reclaimed some of the land. His evidence on the reclamations carried out however was very limited and general. He stated at p. 13 of the transcript 8 March 2018:
“Mulitalo Lea na e taua le sasaina o le fanua ma teu oa nisi mea ete manatua?
Wit O le tanu tanu lava ma faaea le eleele aua e le o se eleele matutu.
Mulitalo I have no further questions your Honour.”
In cross-examination, Mr Tokuma accepted that all his evidence was based on what his father and mother had told him. He also could not say whether Mr Patrick had any authority to be able to gift the land to his family. He said (transcript: p. 13, 08/03/18):
“Peniamina Ete silafia na iai i le tamaloa lea le aia e avatu ai le fanua lea e nonofo ai outou?
Wit E le o iai la sou iloa i le itu lea pau le mea lea oute iloa ona o le tagata e pule i le esetete tausi a le malo o lea e fai iai lou tama.
Peniamina Ae pau lava lana tala ia outou o le tou o toute nonofo i tua ifo o le fale lea sa nofo ai naia, o le sao lea o lau mau?
Wit O le sao e o e fai se tou fale
Peniamina Ao mea uma lava ia ete faamatala o mea na faamatala atu e lou tina ma lou tama o le sao lea?
Wit O lea lava.”
The only evidence that Mr Tokuma gave about the circumstances in which he was told the hearsay statements was that at paragraph 19 above.
At the end of his evidence, Mr Tokuma had given no evidence describing the land the Plaintiffs claimed, its boundaries or size. On questioning from the Court, he said the land is very large, he doesn’t know whether it is 40 or 50 acres and that he has lived on the land his whole life. He confirmed that since he has lived on the land, he and his family have never taken any Court proceedings over the land. Mr Tokuma also confirmed that to prepare for these proceedings, the Plaintiffs did not engage a surveyor to survey the land they claim and that to his knowledge, his family have never engaged a surveyor to survey the land.
For the Defendant, Sa’u Tupaisina Tuaena Fa’asalaina’s tendered his affidavit dated 22nd February 2018 (exhibit D3). He is the Principal Land Registry Officer for the Ministry of Natural Resources and Environment (“MNRE”) and he has worked for MNRE for 17 years. Attached to his affidavit was a copy of Court Grant 85 with a “Diagram” of Court Grant 85 (annexure ‘A’) and a copy of the Land Register Volume 2 Folio 4.
In his affidavit, Mr Fa’asalaina states that based on the Plaintiff’s Amended Statement of Claim, the land subject to the Plaintiff’s claim is:
land under Court Grant 85 (paragraph 5.1, exhibit D3);
land not part of Court Grant 85 which the Plaintiffs allege to have been reclaimed by their ancestors (paragraph 5.2, exhibit D3);
Plan of sub-division of parcel 33 (paragraph 5.3, exhibit D3);
An Area labeled as mangroves and swamp alleged to have been reclaimed by the Plaintiffs (paragraph 5.4, exhibit D3); and
Parcel 205 not included in Court Grant 85 and which has not been sub-divided (paragraph 5.5, exhibit D3).
Mr Fa’asalaina then proceeds to respond to the Plaintiffs pleaded claim in his affidavit. It is important to note that there was no evidence from the Plaintiff identifying the areas pleaded at paragraph 16 of the Amended Statement of Claim as the area subject to the Plaintiffs’ claim except for the general description of the land referred to at paragraph 29 above and which Mr Tokuma only otherwise very generally described in his other evidence.
Despite the Plaintiffs offering no evidence of their claim to land in terms of paragraph 16 of the Amended Statement of Claim, Mr Fa’asalaina nevertheless said that Court Grant 85 described as parcels 32 and 33 contained an area of 50 acres more or less. That land was originally owned from 1894 by D H Stockfleth. Court Grant 85 was continued in the Land Register Volume 2 Folio 4 on 26 August 1921 and was registered to “His Majesty the King in right of the Government of New Zealand.” (paragraph 7, exhibit D3). The land included in Court Grant 85 was then transferred to the Government of Samoa and the residue vested in the Western Samoa Trust Estates Corporation (“WSTEC”) by Certificate of the High Commissioner dated 20 May 1959. The land that was vested in WSTEC is now vested in the Defendant.
At paragraph 13 of exhibit D3, Mr Fa’asalaina states in terms of the Plaintiffs’ pleaded claim:
“That all those lands which the Applicants’ claim to belong to the Tokuma family is currently registered under the Respondent and the Government of Samoa.”
The Land Register annexure “B” to Mr Fa’asalaina’s affidavit shows numerous dealings with land included in Court Grant 85 including for example a lease by WSTEC to Shell (Pacific Islands) Limited on 24 January 1961 and to the Western Samoa Hotel Company Limited on the 14th August 1969.
Affidavits by Tanuvasa Sydney Iupati (exhibit D1) and Talumalupevao Alavisi Sale (exhibit D2) were tendered by consent and these witnesses were not required to be available for cross-examination.
In his affidavit, Mr Iupati who is the Team Leader for the Estate Unit of the Defendant said that in or about 16 June 2012, he was tasked by the Defendant to discuss with the remaining residents at Sogi the Government’s relocation plan. That during the visit, he met with Aiga Tokuma and their refusal to vacate the land was conveyed to him. He said however that there was no mention by Aiga Tokuma or any of the Plaintiffs relatives of any alleged gifting of the land to the Plaintiffs.
In his affidavit, Talumalupevao Alavisi Sale who was a member of the Cabinet appointed Committee on the relocation from Sogi to Falelauniu said that Leiataua Moresi Tokuma was also a member of that Cabinet Committee and Mr Tokuma’s brother. He said that Leiataua Moresi Tokuma never said either in the Cabinet Committee or their Church that the Sogi land had been gifted to their family.
ADMISSIBILITY OF PLAINTIFFS HEARSAY EVIDENCE:
The Defendant objects to Mr Tokuma’s hearsay evidence of what was allegedly said to him by his father and mother on the basis that the circumstances relating to the statements do not provide a reasonable assurance that the statements are reliable.
Section 2 of the Evidence Act 2015 defines a hearsay statement as:
“hearsay statement” means a statement that:
(a) was made by a person other than a witness; and
(b) is offered in evidence at the proceeding to prove the truth of its contents;”
Section 2 defines a statement as:
“(a) a spoken or written assertion, in any form or manner, (including any sketch) by a person of any matter; or
(b) non-verbal conduct of a person that is intended by that person as an assertion of any matter.”
Section 10 of the Evidence Act 2015 relevantly sets out admissibility of hearsay statements as follows:
“10. General rule as to admissibility of hearsay-(1) Subject to subsections (2) to (4) and section 12, a hearsay statement is admissible in any proceeding if:
(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and
(b) either -
(i) the maker of the statement is unavailable as a witness; or
(ii) the Judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness.
(2) A party intending to offer hearsay evidence under this Subdivision must, within sufficient time before the hearing, provide the court and any other party with notice of the party’s intention to offer the hearsay statement in evidence.
(3) In criminal proceedings, the notice under subsection (2) must:...
(4) The Judge may dispense with the requirements of subsection (2) if:
(a) having regard to the nature and contents of the hearsay statement, no party is substantially prejudiced by the failure to comply with the requirements; or
(b) compliance was not reasonably practicable in the circumstances; or
(c) the interests of justice so require.”
The evidence given by Mr Tokuma as allegedly told to him by his father and mother is hearsay. Hearsay evidence however is admissible in a proceeding if, relevant to this proceeding, two criteria are satisfied:
The circumstances relating to the making of the statement provides a reasonable assurance that the statement is reliable; and
The maker of the statement is unavailable as a witness.
In terms of section 9(1) of the Evidence Act 2015, ‘circumstances’ is defined as follows:
“’circumstances’, in relation to a statement by a person who is not a witness, includes:
The nature of the statement; and
The contents of the statement; and
The circumstances that relate to the making of the statement; and
Any circumstances that relate to the veracity of the person; and
Any circumstances that relate to the accuracy of the observation of the person.”
It is not disputed that both Mr Tokuma’s parents are deceased so the second criteria is satisfied (section 10(1)(b)(i) Evidence Act 2015). The question is whether the circumstances relating to the making of the statements provide a reasonable assurance that the statement is reliable.
Section 10(1)(a) of the Evidence Act 2015 is modeled on and similar to section 18(1) of the Evidence Act 2006 (New Zealand). In Wilson v R  NZCA 455, the New Zealand Court of Appeal said in terms of ‘circumstances’:
“ In R v Gwaze, the Supreme Court agreed with this Court that the definition of the word “circumstances”, for the purposes of hearsay evidence, makes it clear that the enquiry into reliability must include not only accuracy of the record of what is said and the veracity of the person making the statement but also the nature and contents of the statement, and the circumstances relating to its making. This Court has observed it can be relevant that the impugned statements are corroborated by other evidence.
 When determining the reliability of a hearsay statement as a prerequisite to its admission, the court’s role is that of a gatekeeper. It is not acting as the fact-finder. The court applies a threshold test. The jury is the ultimate arbiter of the statement’s actual reliability.”
In R v Gwaze  3 NZLR 734 at paragraph 45 in its unanimous judgment delivered by Elias CJ, the New Zealand Supreme Court stated:
“The Judge’s approach, in considering only the reliability of the capture and recording of the information, was not sufficient discharge of the responsibility under ss 17 and 18 to exclude evidence except where the circumstances provide reasonable assurance of reliability. For the reasons discussed at – in relation to relevance, the circumstances of this informal and limited communication could not give reasonable assurance that any opinion of consistency of symptom was reliable in terms of s 18(1)(a).”
In Cross on Evidence (NZ) (online looseleaf edn, LexisNexis) at [EVA 18.2 Reliable Statement], the learned authors state:
“For a hearsay statement to be admissible it must be shown that “the circumstances relating to the statement provide reasonable assurance that the statement is reliable”. This means, as discussed above, that the circumstances must assure the fact finder that the testimonial infirmities of misperception, faulty memory, ambiguity and insincerity can be overcome.
The focus of s 18(1)(a) is the reliability of the hearsay statement, not the reliability of the evidence through which that hearsay statement is offered in evidence.
Importantly, admissibility is a threshold question only. The ultimate reliability of the content of the statement is an issue to be assessed by the fact-finder in the trial having formed a view in the light of all the other evidence.”
In Adams v R  NZCA 386, the New Zealand Court of Appeal in that proceeding stated:
 The authors of The Evidence Act 2006: Act & Analysis comment regarding s 18(1)(a) as follows:
The focus of s 18(1)(a) is the reliability of the hearsay statement, not the reliability of the evidence through which that hearsay statement is offered in evidence. Hence the assessment of reliability should not be concerned with potential problems with the testimony of a witness who offers evidence that some person (other than a witness) made a hearsay statement. The reliability of a witness’s testimony is not part of the enquiry under s 18 …
The reference to “reasonable assurance” of reliability probably means that the evidence is reliable enough for the fact-finder to consider it, and draw its own conclusions as to weight (sometimes referred to as “threshold reliability”, as opposed to “ultimate reliability”). …
 It is clear from the opening words “in relation to a statement by a person who is not a witness” that the focus must be on the statement that is sought to be admitted as hearsay evidence, as opposed to the person who is intended to give the hearsay evidence.”
At this stage in my respectful view, my role pursuant to section 10(1) of the Evidence Act 2015 is to determine whether the threshold test of reliability in terms of the alleged statements made has been met, as opposed to the assessment of credibility of the witness giving the evidence.
I turn first to Mr Tokuma’s hearsay evidence in relation to the statements allegedly made to him by his father about his arrest, trial and sentence to death. According to Mr Tokuma, these statements were made to him by his father when he was 12 or 13 years of age and as they went to the mangroves after his work as set out above at paragraph 19 to search for crabs. The alleged statements made to him were oral statements, made to a 12 or 13 year old boy in apparently a very casual and limited context as they went crab searching in the mangroves.
First, the circumstances relating to the making of the statements leave real doubt as to the reliability of the statements. It was a casual discussion between father and a young son as they went to search for crabs in the mangroves.
Second, the statements are alleged to have been made approximately 65 years ago relating to events that occurred approximately 80 to 90 or so years ago. There was no evidence that the alleged statements made to Mr Tokuma were recorded by Mr Tokuma at any point contemporaneous or approximate to when they are said to have been made to him. I am not satisfied that the accuracy of the alleged statements made to him and then relayed in Court some 65 years later is reliable.
Third, the statements lacked any real detail about the events that the statements allege to deal with and were general in nature. Indeed, his evidence at points appeared to be a narrative of Mr Tokuma’s interpretation of the events as opposed to the actual words used by his father.
Fourth, the contents of his father’s purported statements also lead to doubt about their reliability. Based on the alleged statements made, Mr Tokuma’s father was arrested and by Monday the following week after his arrest, the matter went to Court and he was convicted of murder. The alleged speed of the judicial process as recounted in his evidence leaves doubt as to reliability, particularly given the seriousness of the charge of murder alleged to have been made and the imposition of the death sentence.
Fifth, the manner in which Mr Tokuma’s father’s death sentence was said to have been commuted or set aside I find particularly difficult to accept as reliable. According to the hearsay evidence, on the day that the death sentence imposed on Mr Tokuma’s father was to be carried out and as his father walked to be hung at the gallows, two Chinese men ran forward and confessed to the beating of the deceased Chinese businessman.
I find this hearsay statement simply not credible or reliable. As his father is walked to the gallows to be sent to his death by hanging, it is highly implausible that as he was walking to the gallows, two other men would run forward and confess to the killing of the Chinese businessman for which Mr Tokuma’s father was about to be hung. Why - because any rational person with common sense would expect that by confessing to the killing, he would most likely meet the fate of death by hanging to which Mr Tokuma’s father was being led. The statements, if made by Mr Tokuma’s father, are more likely in my view to be an urban myth or tall story told by his father as opposed to a faithful account of events from years earlier.
In the end, I cannot be satisfied in the circumstances as to the reliability of these alleged statements made by Mr Tokuma’s father to him. It therefore is not admissible pursuant to section 10(1) of the Evidence Act 2015.
Even if I were satisfied about the reliability of the statements, which I am not, the evidence is irrelevant and also inadmissible pursuant to section 4(1) of the Evidence Act 2015. In his evidence, Mr Tokuma did not link any of these events, the statements to him by his father or the relationship with Mr Patrick to their occupation of Sogi land (see paragraph 18 above).
In terms of the other hearsay statements attributed to his father, I also found those hearsay statements to be unreliable for the reasons I have set out above in paragraphs 52, 53 and 54 above.
In relation to the alleged statements from his mother, Mr Tokuma explained that when he was 13 or 14 years of age, he went with his mother to Lepea and she spoke to the then Prime Minister Fiame Mata’afa Faumuina Mulinu’u II (transcript, p. 11 8 March 2018). He was not present in that discussion and she did not say anything to him about the discussion.
First, there was no evidence given by Mr Tokuma of any representations made by the then Prime Minister concerning their occupation of the Sogi land. Second, based on Mr Tokuma’s age given stated as 13 or 14 at the time, that would place the meeting with the then Prime Minister Fiame Mata’afa Faumuina Mulinu’u II as having occurred in 1953 or 1954. Samoa however had not become independent and Fiame Mata’afa Faumuina Mulinu’u II was not Prime Minister in 1953 or 1954. There was also no hearsay statements led in evidence concerning what the then Prime Minister Fiame Mata’afa Faumuina Mulinu’u II is alleged to have stated and what evidence was given concerning the then Prime Minister is not relevant to these proceedings.
In terms of the hearsay evidence of statements attributed to his mother concerning their occupation of the Sogi land, there was also no foundation laid as to when the statements were alleged to have been made or as to the circumstances in which they are said to have been made. The hearsay evidence attributed to Mr Tokuma’s mother also fails to satisfy section 10(1) of the Evidence Act 2015 and is also inadmissible.
The three elements that the Plaintiffs must satisfy for a claim based on unjust enrichment to succeed are: (i) a benefit enjoyed by the recipient, the Defendant; (ii) a corresponding deprivation on the part of the claimant, the Plaintiffs; and (iii) the absence of any juristic reason for the recipient to retain the benefit (Stanley v Vito  WSCA 2 (7 May 2010)).
In Stanley v Vito at paragraph 24, the Court of Appeal explained the third element of an absence of any juristic reason for the recipient to retain the benefit in the following terms:
“The real question on which liability turns is whether the respondents have demonstrated the third unjust enrichment element (absence of any juristic reason for retaining the benefit). The question is whether the respondents (being the counter-claimants for unjust enrichment in that case) had excluded any legal basis upon which the Stanleys could retain the benefit of improvements to their property without paying for them.”
In Paul v Tuanai  WSSC 15 (6 December 1994), His Honour Sapolu CJ considered the doctrine of proprietary estoppel and re-affirmed the position in Meredith v Pa’u  WSSC 7 (5 May 1994) that proprietary estoppel may be used both as a defence to a cause of action and as a cause of action. Relevantly, His Honour noted that in Meredith v Pa’u (supra), left open was an important issue which he put as follows:
“However, in Rosita Meredith v Pualagi Pa’u the Court left open an important issue which was not raised in that case but was raised in the judgment of Scarman LJ in Crabb v Arun District Council  3 ALL ER 865 relied on by counsel for the defendants in this case. The issue is whether propriety estoppel, estoppel by encouragement and estoppel by acquiescence are now subsumed under a broader principle which is described as what is “unfair or unjust” or “unconscionable” or “inequitable” in the circumstances.”
Following a detailed analysis and consideration of the relevant authorities, His Honour Sapolu CJ concluded in Paul v Tuanai (supra):
“After saying all that, I come back to the question whether the doctrine of proprietary estoppel has been subsumed under a broader approach based on unconscionability. I think the answer must be no. Despite what Lord Denning MR says in Amalgamated Investment’s case about proprietary estoppel and other forms of estoppel being merged into one general principle shorn of limitations, which he described as “what is unfair and unjust”, it is clear from the majority of the cases that that is not what has happened. What has really happened is that the Courts have moved away from strict adherence to the five probanda expressed by Fry J in Willmott v Barber  15 Ch D 96 as the basis for the operation of proprietary estoppel to a more broad and flexible test based on unconscionability for determining the application of the doctrine of proprietary estoppel. But the new test, although more broad and more flexible then the five probanda expressed by Fry J was not subsumed the doctrine of proprietary estoppel.”
In his latter judgment in Lafaele v Talipeau  WSSC 18 (15 May 2014), His Honour Sapolu CJ set out and applied the classical formulation of the five elements of proprietary estoppel based on the principles enunciated as the basis of the doctrine in Willmott v Barber (1880) 15 Ch.D.96 by Fry J by stating:
“Counsel for the defendants rely in this part of the counter-claim on the five probanda enunciated as the basis of the doctrine of proprietary estoppel in Willmott v Barber (1880) 15 Ch.D.96 where Fry J said at p.106:
(1) The plaintiff must have made a mistake as to his or her legal rights.
(2) The plaintiff must have expended some money, or must have done some act on the faith of his or her mistaken belief.
(3) The defendant, the possessor of the legal right, must know of the existence of his or her own legal right which is inconsistent with the right claimed by the plaintiff. If he or she does not know of it, he or she is in the same position as the plaintiff.
(4) The defendant, the possessor of the legal right, must know of the plaintiff’s mistaken belief of his or her rights. If the defendant does not, there is nothing to call upon him or her to assert his or her own right.
(5) The defendant, the possessor of the legal right must have encouraged the plaintiff in his or her expenditure of money or in the other acts which he or she has done, either directly or by abstaining from asserting his or her legal rights.”
Findings Based On Admissible Evidence:
Unjust Enrichment -
At the outset, I found the Plaintiffs evidence through Mr Tokuma to be vague, general and unsatisfactory by itself in establishing the Plaintiffs remaining claims.
On the admissible evidence, the Plaintiffs who carry the onus to prove their claim have failed to establish unjust enrichment. Having heard the evidence, there was no satisfactory, clear, credible and reliable evidence on which I can place weight establishing with any clarity for the Plaintiffs (a) any benefit to be enjoyed by the Defendant; (b) a corresponding deprivation to the Plaintiffs; and (c) the absence of any juristic reason for the Defendant to retain the benefit, even if a benefit to the Defendant was held to exist.
In closing submissions, counsel for the Plaintiffs in clarifying the basis of the Plaintiffs’ claim for unjust enrichment responded as follows to questions concerning the Plaintiffs claim based on unjust enrichment:
“HH Let me ask you this Mr Mulitalo, what are the three elements to unjust enrichment?
Mulitalo Are the benefits to the recipients that you refer to the fact that the family did not pay any rent for that long are the fact that they have the land to live on; they survived for so many years from that.
HH A benefit enjoyed by the recipient is in respect of SLC in terms of this test for unjust enrichment. What you are saying is that it would be unjust for the recipient being SLC retain the benefit. Not about your client living there rent free. Perhaps I don’t know, there was no evidence but what is the benefit enjoyed by the recipients? The second is the corresponding depravation on the part of your client. What are they deprived of? And the third element is that there is an absent of juristic reason for the SLC to retain the benefit. Bearing in mind those three elements, how does the evidence support that?
Mulitalo In terms of Nanai’s evidence that was just a swamp of few mangroves and over the years they reclaimed and put a lot of effort labour, expenses and bringing the land into a situation that is now
HH And there’s no report on what improvement are on the land…But on the evidence what do you say is the benefit that SLC on the improvement identified in the evidence?
Mulitalo The cost that saved them from reclaiming the land that
HH How much land was reclaimed?
Mulitalo Where the houses are – this is the difficulty that we had earlier in terms of technically that information before the Court Sir
HH But there’s no reason why that could not be prepared on behalf of the plaintiff and presented either by a structural or civil engineer or a valuer
Mulitalo it all comes down to financial ability Sir to have all these made available Sir
HH Alright, what do you say on the evidence is the depravation of your client? What are they going to be deprived of if
Mulitalo Depravation of enjoyment and having the freedom to continue living without harassment and without being interfered consistently by the respondent and they have been deprived of enjoyment and living free without being intimidated by
HH But there was no evidence of intimidation Mr Mulitalo…
Mulitalo Ok. Thank you, so the depravation that if there’s an order to be evicted then that will deprive them from living on the land that they are so attached to for so many years it’s just part of their lives.”
Counsel appears to have misunderstood the elements of unjust enrichment and the application of those elements to the evidence.
On the evidence, the benefit that is primarily asserted by the Plaintiffs as I understand the evidence is the alleged reclamation by the Plaintiffs or their ancestors to the Sogi land. There were general and vague references in Mr Tokuma’s evidence about clearing of the land and the construction of houses on the land occupied by them but these did not seem to form a basis for their claim for unjust enrichment.
Apart from the general and vague statements about the alleged reclamation, there was no satisfactory evidence offered by the Plaintiffs of where specifically the alleged reclamation was carried out, the size, value or nature of the alleged reclamation, when it was alleged to have been carried out or who specifically carried it out. There was also no evidence whatsoever on behalf of the Plaintiffs by a surveyor, engineer or valuer identifying the area and location of any alleged reclamation, its value or its condition to support their claim. Similarly, no such evidence was offered by the Plaintiffs in terms of any buildings on the land occupied by them or in respect of the alleged clearing of the land, these also suffering from the same evidential deficiencies as the alleged reclamation.
Even if I was satisfied that reclamation work or any other improvements had been carried out (which I am not), and that there would be a deprivation to the Plaintiffs, the Plaintiffs have not excluded any legal basis upon which the Defendant could retain the benefit of improvements to their property without paying for them. As stated at the outset of this judgment, the onus is on the Plaintiff to establish its claim on the balance of probabilities and the Plaintiffs have failed to establish their claim based on unjust enrichment.
Proprietary Estoppel -
Turning to the claim based on proprietary estoppel, I am also not satisfied that the Plaintiffs have established this. The Amended Statement of Claim does not expressly plead the mistaken belief alleged by the Plaintiffs or their ancestors part but it would seem to be a mistaken belief as to the ownership of the Sogi land.
Addressing the elements of proprietary estoppel cited in Lafaele v Talipeau  WSSC 18 (15 May 2014) based on the principles enunciated in Willmott v Barber (1880) 15 Ch.D.96 by Fry J, first, there was no specific or credible evidence from Mr Tokuma that the Plaintiffs or their ancestors had made a mistake as to their legal rights to the land or that they held a mistaken belief as to their ownership of the Sogi land. Indeed, Mr Tokuma expressly stated that “o lau tala na fai i lau affidavit e lei iai se upu mai i gutu o matou matua o le fanua lea matou te nonofo ai o se fanua mo i matou.”
Second, while there was very general evidence of the construction of dwellings on the Sogi land which would have necessarily meant money expended, this evidence was general and unsatisfactory in that there was no clear evidence of what those dwellings were, who built them, when and what money was expended. Even if I were to be satisfied on the construction dwellings, by whom and of the expenditure of money, there was no evidence that any such construction or expenditure was done on the faith of their mistaken belief. If the expenditure of money was in respect of the alleged reclamations or land clearing, the same deficiencies in the Plaintiffs evidence exist.
Third, there was also no evidence that the Defendant knew of a mistaken belief by the Plaintiffs. Fourth, there was no evidence that the Defendant encouraged the Plaintiffs or their ancestors in their expenditure of money or in the other acts which they have done, either directly or by the Defendant abstaining from asserting its legal rights.
In the end, I simply do not accept on the evidence nor have the Plaintiffs established that the Plaintiffs or their ancestors had been under a mistaken belief as to their interests in the Sogi land. Mr Tokuma himself said that not a word had been said by his parents that the land on which they lived was land for them. The inference I draw from the absence of such a statement from his parents is that his parents did not claim any such interest in the land nor did they understand their occupation of the land to be occupation by them of land belonging to them.
The absence of any such statement by Mr Tokuma’s parents and the inference I draw is supported by the other evidence. First is the Land Register. The Land Register shows that Court Grant 85 contains an area of more or less 50 acres in size. This land was vested in His Majesty the King in right of the Government of New Zealand in 1921. It was then subsequently transferred to the Government of Samoa and the residue to the Western Samoa Trust Estates Corporation (WSTEC), now the Defendant. Since their alleged occupation of the land from approximately the 1930s, there is no evidence that any steps were taken by the Plaintiffs or their ancestors to claim or register any interest in the land.
Second, Mr Tokuma’s evidence was that parts of the Sogi land subject to their claim in these proceedings has been occupied or leased by other parties. This includes land he said is now occupied by the MNRE and the Tusitala Hotel, now the Tanoa Hotel (transcript: 08/03/18 at p.16). The Plaintiffs proceedings claim a large portion of land at Sogi contained in Court Grant 85 approximately 50 acres in size. The Land Register shows land in Court Grant 85 has been dealt with extensively since 1921 and which includes the leasing of parts of that land for example to Shell Company (Pacific Islands) Limited registered on the 24th January 1961 and to the Western Samoa Hotel Corporation Limited registered on the 14th August 1969.
Despite these earlier dealings leasing out parts of the Sogi land to other parties including Shell Company (Pacific Islands) Limited and to the Western Samoa Hotel Corporation Limited, there is no evidence that the Plaintiffs or their ancestors took any steps to prevent the entry into those leases or the construction of improvements that followed on that leased land now claimed by the Plaintiffs.
If the Plaintiffs and their ancestors mistakenly believed that they owned land in Court Grant 85 and the other land contained in their claim, it would be expected that when third parties then entered and leased those lands from the Defendant, the government or its predecessors and constructed improvements on the land, the Plaintiffs or their ancestors would reasonably be expected to have protected their ownership interest claimed at that time. That the Plaintiffs or their ancestors did not do so at the time supports the conclusion that I have reached that they did not have a mistaken belief as to their ownership of the Sogi land now claimed by the Plaintiffs in these proceedings.
The evidence also cannot be said to show that the Defendant or its predecessors have acted unconscionably. The claim based on proprietary estoppel also fails.
DOES THE EXCLUDED EVIDENCE, IF ADMITTED, SUPPORT THE PLAINTIFFS CLAIM:
While I have ruled the hearsay evidence inadmissible, I will nevertheless for completeness deal briefly with the excluded hearsay evidence on the basis of if it was admissible, would it support the Plaintiffs claim. The answer to this question is also no.
In terms of the excluded hearsay evidence consisting of statements allegedly made by Mr Tokuma’s mother and father to Mr Tokuma, that evidence fails to advance the Plaintiffs’ claim for unjust any enrichment any further. There was no specific, credible or reliable evidence in the hearsay evidence excluded of the benefit that would be enjoyed by the Defendant and the deprivation that would be suffered by the Plaintiffs. The excluded evidence also does not take the third element of the absence of any juristic reason for the recipient to retain the benefit to be established any further.
Similarly, the excluded hearsay evidence does not advance the Plaintiffs’ claim based on proprietary estoppel any further. The excluded evidence does not assert any ownership interest or mistaken belief in an ownership interest by the Plaintiffs or their ancestors. Indeed, as I have stated earlier, Mr Tokuma was expressly stated “o lau tala na fai i lau affidavit e lei iai se upu mai i gutu o matou matua o le fanua lea matou te nonofo ai o se fanua mo i matou.”
The excluded evidence also does not take the Plaintiffs any further in respect of establishing the first, second, fourth or fifth elements of the test set out in Lafaele v Talipeau (supra) derived from Willmott v Barber nor does it establish that the Defendant or its predecessors had acted unconscionably.
THE PLAINTIFFS AS PARTIES AND THE PLAINTIFFS’ CASE:
The Plaintiffs sought orders declaring themselves (a) descendants and beneficiaries of the estate of the Estate of Turore Tokuma; and (b) lawful owners of the ‘said land at Sogi’.
There was no evidence that the Plaintiffs Aiga Tokuma, Talafulu Tokuma, Talalupe Tokuma-Sanele, Taualofa Tokuma-Timo and Cizzy Tokuma are heirs and descendants of Turore Tokuma. Indeed, there was no mention of these Plaintiffs whatsoever in the course of the evidence. In the absence of this evidence, I cannot be satisfied that they are in fact descendants and beneficiaries of Turore Tokuma. The only evidence which I accept as unchallenged is that Mr Tokuma is the son of and a descendant of Turore Tokuma and Ulalemamae Leiataua.
Second, the evidence of the Plaintiffs only witness, Nanai Tokuma expressly contradicted key aspects of the Plaintiffs pleaded case against the Defendant. While the Plaintiffs for example plead at paragraph 18.1.4 of the Amended Statement of Claim that the former Prime Minister Fiame Mata’afa Mulinu’u II said “it is your land for your mother and her descendants to live on as the government cannot afford to pay your father”, Mr Tokuma himself said that children were not included in these conversations and there was no evidence whatsoever of such a statement having been made by former Prime Minister. Indeed, Mr Tokuma said that “… e lei iai se upu mai i gutu o matou matua o le fanua lea matou te nonofo ai o se fanua mo i matou” directly contradicting it would seem the basis of the Plaintiffs’ various causes of action against the Defendant.
Third is the absence of evidence by the Plaintiff clearly identifying the Sogi land claimed by the Plaintiffs. There was no evidence from a surveyor, valuer or other suitably qualified expert to identify the land subject to the Plaintiffs’ claim, its size, location, boundaries, value and the improvements pleaded by the Plaintiffs to have been carried out as would be expected in a case of this type involving a claim to land and for unjust enrichment.
Fourth, many of the matters pleaded by the Plaintiffs as a basis for these proceedings were not led in evidence. This includes for example:
no evidence by Nanai Tokuma that the Plaintiffs’ claim is to Court Grant 85 registered in volume 2 of folio 4 of the Land Register (paragraph 16, Amended Statement of Claim);
no evidence of plan of sub-division of parcel 33 dated 18 August 1959, such a plan if it exists not having been tendered on behalf of the Plaintiffs during the hearing;
no evidence from the Plaintiffs of the alleged relocation plan to relocate them and their families (paragraph 19, Amended Statement of Claim) except as to the general evidence by the Defendant’s witnesses;
no evidence of any levies being imposed on the Plaintiffs by the Defendants or others for the costs of surveys (paragraph 23, Amended Statement of Claim);
no evidence that there had been no consultation with the Plaintiffs (paragraph 23, Amended Statement of Claim); and
no evidence of any government announcement through the Defendant concerning the relocation plan (Amended Statement of Claim, paragraphs 31 and 32) except that evidence through the Defendant’s witnesses.
As Mr Mulitalo himself conceded in an understated way during Closing Submissions addressing the alleged gift but which can be applied more generally to the Plaintiffs case - “the evidence didn’t quite transpire – it didn’t come through the evidence by Mr Tokuma.”
The Plaintiffs Amended Statement of Claim and Motion are dismissed.
The Defendant has 14 days to file and serve its Memorandum as to Costs. The Plaintiffs will then have 14 days to file and serve their response to the Defendant’s Memorandum as to Costs.