Amended claim in lawsuit against N.P.F. dismissed

The Supreme Court has dismissed an amended statement of claim from a former politician, seeking restitution for parcels of land in Fugalei, she alleged were unlawfully taken by the Samoa National Provident Fund.

Former Member of Parliament, Fagafagamanualii Theresa McCarthy, had filed a lawsuit of $7.7 million against N.P.F. over parcels of land in Fugalei, upon which 20 room hotel called Blue Pacific Hotel was located.  

Represented by lawyer, Leuluaiali’i Olinda Woodroffe, the lawsuit was filed in August 2017 pleading one cause of action for unjust enrichment. The enrichment is alleged to have been unjust in that the N.P.F. breached its equitable duty owed to her in terms of fair market value of the security property. 

Fagafagamanualii also alleges exploitative and unconscionable conduct by N.P.F.  

In November 2019 just over two months before the hearing, the plaintiff filed an amended statement of claim and did not make an application for leave to amend the claim. 

According to judgment by Justice Leiatualesa Daryl Clarke in July, the plaintiff has now filed to advance two causes of action. 

The two cause of action is for negligence and advancement on unjust enrichment. 

N.P.F. lawyer, Semi Leung Wai did not oppose the amended statement of claim earlier on. 

However, Leung Wai later submitted that no leave had been granted to amend the statement of claim. 

Justice Leiataualesa said if the defendant intended to oppose the amended claim it should have done so expressly and at the outset by filing a notice of opposition at the start of the hearing. 

“It is inappropriate through counsel to do so now in this way, after filing an amended statement of defence and raising no objection at the start of the hearing or earlier,” he said. 

“The defendant filed an amended statement of defence and if leave had not been formally granted at the beginning of the hearing, I do so now. 

“There is no prejudice to the defendant and the defendant conducted its defence on the basis of its amended Statement of defence.”

In considering the amended statement of claim, Justice Leiataualesa said the plaintiff failed to prove her claim in negligence and unjust enrichment. 

“In terms of the claims directed at the acquisition of the “security property” and the lease payments to the defendant and the remedies sought by the plaintiff against the defendant, they are without merit,” he ruled.

“For the foregoing reasons the plaintiff’s amended statement of claim is dismissed.”

Based on the evidence heard in the proceedings, he said there is an issue between the plaintiff, the defendant and government in terms of Toamalama Street parcel together with Tovaetoto Street and how they were dealt with. 

The lands were described as Government land in the computer folio certificates, evidence heard before the Court. 

“When the government purportedly acquired Toamalama Street (parcel 387, later Lots 17, 18, 19 and 20) and Tovaetoto Street (lot 14), no instrument of dedication was prepared and registered with the Registrar of Land in accordance with section 13(1) of the Survey Ordinance 1961 (repealed) dedicating these lands as public roads,” he said. 

“When the government then subsequently transferred parcel 387 / lot 17 and Lot 14 to the defendant, no Instrument of Transfer was prepared to effect the transfer but the transfer was said to have been based on the Survey Plan 11264. 

“If correct, in the absence of an instrument effecting transfer, such a transfer to the defendant may contravene sections 20(1) and 36 of the Land Titles Registration Act 2008.”

To address this issue, Justice Leiataualesa suggested that the plaintiff may have appropriately considered proceedings on the basis of a motion for Declaratory Orders seeking declaration as to the validity and legality for some of the disputed parcels. 

 He added the plaintiff can also consider an application for the Correction of the Land Register in accordance with the provisions of the Land Titles Registration Act 2008 or for compensation under the act. 


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