Court
Court of Appeal orders to Restore & Reregister Caveat on Tuloto Land
By Lagi Keresoma
APIA, SAMOA – 23 DECEMBER 2021: The Court of Appeal has set aside the orders made by Justice Vui Clarence Nelson to remove the caveat from a land at Tuloto Apia.
They also ruled that the Land Registrar must re-register the caveat.
This is the latest twist to a longstanding legal battle between the siblings Molio’o Vaeluaga and his sisters Kerita Pune and Elsa Vaeluaga.
Justice Vui’s decision was appealed by Kerita’s former counsel, Ruby Drake.
The appeal was based on whether the Registrar of Lands of the Ministry of Natural Resources and Environment (MNRE) lawfully removed the caveat under the Land Titles Registration Act 2008.
Background
The original owner of the land at Tuloto, Apia was Leilua Molio’o who gifted the land to his son Molioo Vaeluaga in 1995.
Molio’o’s sisters Kerita and Elsa believed their brother had some influence over their fathers’ decision. They filed legal action against their brother and lodged a caveat on the land in May 2002.
Their lawyer at the time was Ruby Drake who lodged the caveat on the basis of claiming interest as beneficiaries of the land.
In 2003, the matter was heard by the late Chief Justice, Patu Tiavaasue Falefatu Sapolu.
Twelve years later, Kerita fought a new fight, and that was to get a decision of the trial.
“Eleven years later, on the 15 July 2014, Patu ruled that the gifting of the land to Molio’o was “unlawful” and Kerita spend another 2 years trying to get a written decision from Patu.”
On 29 August 2016 after being pressured by the Court and Kerita, Patu presented a written decision.
The Chief Justice found that undue influence had been proven against Molio’o.
There was no appeal against this decision.
After Kerita passed on her daughter, Clara Gray who is the administrator of her mother’s estate continued her mothers’ fight.
The Caveat
Since 2003, the land had been passed on to two owners, the Samoa Breweries who held the land on mortgage and Samoa Stationery and Books (SSAB).
Molio’o and sons were operating a Trading Distribution business in partnership with Samoa Breweries and after Molio’o died, the business owed a substantial amount in arrears to Samoa Breweries.
Although there was a caveat on the land, developments and investments had already been conducted on the land.
On the 20 July 2020, Justice Vui Clarence Nelson ruled to remove the caveat.“The trading account eventually fell into arrears and Samoa Breweries wished to exercise its power of sale under the mortgage,” he ruled.
“An agreement was later reached to sell the land to SSAB company owned by the then Attorney General Aumua Ming Leung Wai’s wife, but the only barrier was the caveat.”
The lawyer for Samoa Breweries, Herman Kruse took action and wrote to Ruby informing her of the agreement reached between his clients and the Trading Company run by Molio’o’s family.
Counsel questioned AG’s involvement in removing the caveat
On 23 December 2013, the Assistant Chief Executive Officer of the Land Management Office of the Ministry informed Ruby Drake of their clients intentions.
“This will serve to notify you that Ming Lung [sic] Wai lodged an application to remove caveat 837 lodged by Leilua Lolesio Vaeluaga and Kerita Maria Kolotita Pune through your Office. As the caveator for caveat (837) lodged against the said land pursuant to Section 55 of the Land Titles Registration Act 2008, you are hereby advise [sic] that the caveat be withdrawn and after the lapse of twenty one days from the day of service of such notice at the address mentioned in the caveat, the Registrar shall remove the caveat from the register by entering a memorandum that the same is discharged unless before the expiry of the twenty one days, the Registrar is served with an Order of the Court extending the time as provided in the notice.”
The letter also informed the cavetor that they could apply to the Court for an Order to extend the time beyond the twenty-one days mentioned in such notice.
“On 24 December, the parties remain at odds over why Aumua’s name was given in the letter as the person seeking removal of the caveat.
The Registrar said it was simply a mistake.
Application to extend stay of caveat
Ruby informed the Court of the letter from the Land Registrar to remove the caveat.
On 22 January 2013, Kerita as caveator served a notice requesting the Court for an order for the caveat to remain and for an extension of time regarding the caveat.
An error of time
Ruby Drake did receive a response but not from the Court, but from the Land Management Division of the Ministry.
The response was to advise Ruby and her client that the 21 day period would be finished on the 3rd February 2014.
The Court of Appeal noted that there was no explanation on how the Land Management Division calculated the 21 day’s timeframe.
“But in an affidavit, the writer of that letter said it was an error and that the time actually expired on 31 January.”
Extension of caveat granted
On 4 February 2014, the then Chief Justice Patu Falefatu Sapolu made an order to extend the caveat until further order.
The Land Registrar was served with the Court order to extend the caveat on 7 February 2014.
“It would be wise for the Registrar of Lands to comply with the Court Order. If the Registrar does not agree with the order then the proper course is to seek remedy from the Court but not disobey the order.”
Land Registrar removed the caveat despite Court order
Rather than heeding the Court order, the Registrar of Lands removed the caveat on 24 February 2014.
On 25 February, the Registrar of Land wrote to the Court drawing its attention to section 55 of the Land Registration Act 2008.
According to the Court of Appeal, “The letter contains an explanation for the belief that the time period expired on 31 January (“this is counting 21 days excluding weekends, public holidays and commission holidays”). We are unaware of the meaning of “commission holidays” but find it unnecessary to pursue that matter.”
“More importantly, the letter said that “since the court order provided was not within 21 days as provided by the Act, the court order cannot have effect” and that the Registrar was statutorily bound to remove the caveat.”
On 16 May 2014, the Land Registrar filed proceedings against Patu’s orders.
Plaintiff legal actions against lawyer
Due to the removal of the caveat, Kerita and her sister Elsa filed legal proceedings against their lawyer Ruby Drake for negligence and not preventing the removal of the caveat in July 2014.
They claimed their rights claim under the caveat in respect of the property remained enforceable despite the registration of the transfer.
“Those proceedings together in relation to the question of the lawfulness of the removal of the caveat by the Land Registrar and the effect of Chief Justice Patu’s Order were heard before Justice Vui.”
The Court of Appeal noted that the caveat was later restored to the Land Registrar on 15 July 2014 and then removed again after Justice Vui ruled that the caveat had lapsed on the 31 January 2014.
Discharging of CJ Patu’s order
In Justice Vui’s ruling, he said there were a number of reasons why Patu’s order of 14 February 2014 should be discharged.
“One, the application by the caveator should have been by a summons as required by section 55(3) and duly served on the caveatee. A letter did not constitute a summons and Samoa Breweries and the estate of the caveatee had not been served or otherwise advised of the application to extend the caveat so that their right to natural justice and fair trial rights under Article 9(1) of the Constitution had been affected.
“Two, that it was, in his view, plainly made out of time. Whilst section 55 was silent on how the 21 days would be computed, the ordinary and natural meaning was that this included public holidays and weekends except where the prescribed time expired or fell on a holiday: s 23(a) of the Acts Interpretation Act 1974 which was in force at the time. Had Parliament intended otherwise it could have used the phrase “21 working days”. The Judge concluded that the 21 day time limit expired on Tuesday 14 January 2014 which was not a holiday.”
Justice Vui ruled that there was no caveat for Patu to extend as it was already lapsed and his order was “null and void ab initio.”
Caveat had not lapsed by law but removed
With the recent argument in Court, Ruby appealed Justice Vui’s ruling and engaged counsel J. Goodall and K. Kruse on her behalf.
“The Court of Appeal heard that the caveat had not lapsed by operation of the law. It had to be removed by the Registrar and was operative until removed.”
“So if section 55 of the Land Registration Act applied, Goodall said there was still a caveat to extend.”
Goodall submitted that the late Chief Justice Patu acted within jurisdiction in making an order to extend the caveat because section 55 of the Act had not had any proper application.
He said that the Court had an inherent jurisdiction to maintain the caveat by means of an injunction preventing its removal.
“That was what Chief Justice Sapolu had been doing in circumstances where the caveators’ claim to an interest in the property had been tried and was awaiting judgment. Mrs Pune’s application seeking extension of the caveat was made in that proceeding.”
He said that if section 55(1) had in fact applied, the Land Registrar’s notice was inadequate because it did not inform the caveator of an application by an actual caveatee.
He pointed out that Mr Leung Wai was not even arguably a caveatee.
“The caveatee (Kerita) had been misadvised about the identity of the person who had made the section 55 application,” he said.
He pointed out that if section 55 was applied, the Order was still within jurisdiction because subsection (3) contains no express time restrictions within which the Court has to make its Order.
“Finally, there had been no breach of natural justice when an Order was made ex parte in urgency. Service was not mandatory and affected parties could apply to set the caveat aside under section 54 or utilize section 57,” said Goodall.
Counsel Leuluaialii Olinda Woodroffe for Clara supported Goodalls submission.
AG’s counsel asked to uphold Justice Vui’s decision
Counsel for the office of the Attorney General Fuimaono Sarona Ponifasio sought to uphold Justice Vui’s decision which removed the caveat.
“The Registrar had decided that the application was best regarded as made under section 55 and that the failure in the Registrar’s notice to correctly specify who had made the application should not be fatal,” she said.
She said Ruby at the time raised no such objection on being notified of the application or when she approached the Court and no summons filed with the Court as required by section 55(3) whose requirements were intended to provide evidential information to the Court for assessment.
This case at hand
The Court of Appeal pointed out their findings in the appeal sitting last week.
They noted that although the letter written on behalf of Samoa Breweries invoked section 57 expressly, it plainly could not meet the requirements of that section because no instrument had actually been presented for registration against the title to the subject land.
“But, instead of pointing that out to Mr Kruse and rejecting his application, the Assistant CEO seems to have made a decision – unexplained in her affidavit, to treat the letter as an application under section 55 instead.
“Her action is questionable whether she could do this without approval from the applicant.
“But we place no emphasis on this point for it is abundantly clear the letter that she wrote to Mrs Drake on 23 December was not a valid Registrar’s notice under section 55.”
“It named as applicant Mr Leung Wai, who was certainly not a caveatee as he had no estate or interest in the land, even if, as we are inclined to accept, the wide view approved by Justice Nelson should be taken on the meaning of “caveatee or his agent.
“So the notice did not name the applicant caveatee. Furthermore, it did not contain the important address for service of notices and proceedings on the caveatee, a matter which is crucial when the caveator must act within a short time frame.”
The Court of Appeal believes that as the notice from the Land Registry was non-compliant with section 55, it could not start the 21 day time period running. Mrs Drake had no need, as a matter of law, to take any action in response to such an invalid notice, though her approach to the Court was a prudent step to take in the circumstances.
Registering land on SSAB unlawful
The Court of Appeal noted that the Land Registrar’s invalid notice could never in law justify the removal of the caveat from the title to the land.
“So the action taken by the Registrar on 24 February 2014 in removing it, and thus allowing registration of the transfer to Samoa Stationery, was unlawful.”
They ruled that the caveat should have remained and prevented that registration.
The Court of Appeal presiding judges were Honourable Justice Blanchard, Honourable Justice Harrison and Chief Justice Satiu Simativa Perese.
The counsels: J. Goodall and K. Kruse for Ruby Drake in both appeals.
Leuluaialii Olinda Wodroffe for Clara Gray.
Fuimaono Sarona Ponifasio for Attorney General in both appeals and no appearance for Third and Fourth Respondents.
