Court delivers decision on Tuloto land caveat
The Supreme Court has annulled a caveat order on the Tuloto land at Togafu'afu'a, where the Samoa Stationery and Books (S.S.A.B.) Headquarters is located, after 18 years of legal battle over the piece land.
The decision was handed down by Justice Vui Clarence Nelson, who declared the caveat order by the former Chief Justice, Patu Tiava’asue Falefatu Sapolu, void and a breach of natural justice under the Constitution.
The decision follows an application from the Office of the Attorney General, acting on behalf of the Ministry of Natural Resource and Environment (M.N.R.E.) to discharge the caveat order of 4 February 2014.
The long standing dispute relating to the Tuloto land started in 2002, when the late Kirita Maria Pune filed a lawsuit alleging illegal and fraudulent transfer of the land by her late brother. The elderly mother, who had died before any finality on the proceedings, claimed she shares the estate and beneficiary of her father, Vaeluaga Leilua’s land referred to as Tuloto.
The land was subject to a registered first mortgage in favour of the Samoa Breweries and had been gifted by their father to Mrs. Pune’s brother, Molio’o Teofilo Vaeluaga, in 1995.
Lawyer, Charlie Vaai, represented Samoa Breweries in the civil matter while Leulua’ialii Olinda Woodroffe acted for the plaintiffs.
Several years later, Mrs. Pune commenced proceedings in the Supreme Court to set aside the gift on the basis of fraud perpetrated by Molio’o on their old and allegedly senior father. In 2003, a substantive claim was heard by former Chief Justice Patu and his decision was reserved.
Justice Vui said regrettably and for reasons never fully explained, a decision was not rendered until some eleven years later.
“That decision albeit only two sentences in length invalidated the transfer to Molio’o on the basis of fraud,” Justice Vui said.
“The Chief Justice however declined to grant the declaration and order sought by the plaintiff setting the gift aside until he heard from counsel on the position of the mortgagee who was not joined or made party to the proceedings.”
In his reasons for Judgment issued two years later, in 2016, Justice Patu confirmed the gift was invalid as effected under undue influence.
The Court heard that Justice Patu reiterated his unwillingness to grant the relief sought without “reference to the position of the third party mortgagee”.
Prior to the decision, Molio’o passed on and the mortgage fell into arrears. In late 2013, the Breweries exercised its power of sale and sold Tuloto to the fourth defendant, S.S.A.B.
The caveat however prevented registration of the relevant conveyance. Lawyer, Fiona Ey, represented S.S.A.B. in the proceedings.
On 12 December 2013, the lawyer for the Breweries wrote to M.N.R.E. requesting that the Registrar of Lands advise the caveators there was an instrument pending registration. Furthermore, the Breweries advised that the caveators were required to apply to the Court “to verify their caveat within the notice period”.
On 23 December 2013, the Registrar issued to the caveators then solicitor a notice pursuant to the Land Titles Registration Act 2008 to withdraw the caveat failing which after expiry of the requisite 21-day notice period it would be removed.
But subject to this rider: “unless before the expiry of the 21 days the Registrar is served with an Order of the court extending the time as provided in the notice”.
However, on 04 February 2014 “Upon reading the written application dated 22 January 2014” from the plaintiff, Justice Patu extended the Caveat 837X until further order of the Court.
The Court heard that M.N.R.E. records indicate a sealed copy of the Courts order was only received by them on 07 February 2014 although email advice of the Order was sent on 04 February 2014.
Justice Vui said there was subsequent correspondence between the Supreme Court and M.N.R.E. but it is not entirely clear whether the caveat was removed and then reinstated.
He added that if so when, how, and by whom or whether it remained in place throughout.
“The annexures to the affidavit of Mr Colin Woodroffe of Woodroffe Law the plaintiffs solicitors reveals a change of registered proprietor from Molio’o to S.S.A.B. in 2015 but also shows Caveat 837X on the title then and previously,” he said.
“Based on the current pleadings these are issues relevant to the substantive hearing of the proceedings.”
In his decision, Justice Vui ruled that the notice dated 23 December 2013 issued by the registrar of Lands was valid. He said the Court Order Caveat 837X lapsed by operation of law and accordingly there was no Caveat 837X for the Chief Justice to extend.
“The Registrar was empowered to remove Caveat 837X in respect of the Tuloto land,” said Justice Vui.
The application by the plaintiff dated 22 January 2014 to extend the Caveat was out of time and was not in the prescribed form, he said.
“Neither was it served as it should have been on the parties affected.
“The Order of Chief Justice Sapolu dated 04 February 2014 was also made in breach of the requirements of natural justice and article 9(1) of the Constitution and must accordingly be declared null and void ab initio.”