No Legal Evidence to Justify Transfer of Land to SNPF, says Lawyer

By Lagi Keresoma

APIA, SAMOA – 13 APRIL 2022: “When something is unjust or unfair, the Court will right the wrong, and it is what I respectfully ask the Court to do, because the Court has a duty to right the wrong in this case of injustice to the Appellant.”

These were counsel Leuluaialii Olinda Woodroffe’s opening remarks in the hearing of the appeal by Fagafagamanualii Theresa McCarthy (Appellant) against the Samoa National Provident Fund (Respondent) on Monday this week.

Leuluaiali’i said this case was a huge injustice because the Parcel 387 in the decision of Justice Daryl Clarke in 2019 of Lot 14/17 of Plan 582 transferred by the Government to the SNPF on16 January 2008 was wrong.

She gave the following reasons to justify their claim.

• There is no evidence of any formal legal transfer from the Appellant to the Government of Samoa of Lot 14/17 or legal transcript or evidence from the beginning presented before Justice Clarke,
• No formal legal of transfer from the Government to the SNPF of Lot 14/17
• There is no evidence from the beginning to date of any compensation made by the Government to the Appellant as per described in the Constitution of Samoa.

“If you look at the submission by Mr. Leung Wai, (counsel for Respondent) it is asking the Court to fix the wrong by telling the Court to register what has been missing in law all these years,” she argued.

Background
The Appellant was the registered owner of several lands at Fugalei and in the early 1990’s, she built the Blue Pacific Hotel on two of these lands – Parcel 387 (Lot 17) and Parcel 454 (Lot 14).

On 12 June 2001, the Appellant applied for a loan from the Respondent to complete the establishment of a 20 room accommodation unit, and security for the loan was also discussed in the application.

On 13 August 2001, the Respondent in a Letter of Offer to the Appellant for a loan of $775,000 to not only refinance a debt with Westpac Bank but also to complete the establishment of the hotel, and the loan security was the 5 parcels of land at Fugalei.

There was also a Deed of Mortgage dated 21 August 2001 signed between the Appellant and Respondent and was lodged with the Land Registry on 4 September 2001.

“Blue Pacific Hotel encroaches slightly onto Parcel 426, but it sits admirably on Parcel 387 and Parcel 454 and neither of these parcels were securities for the loan,” said Leuluaialii.

However, Parcel 387 was redefined in the Scheme Plan 3086 in 2010 and was sub-divided into lots 17, 18, 19, 20 and closed as roads. A further plan was approved in September 2013 which created Lot 14 Plan 10542 which had part of the hotel on.

Both Parcels 387 and 454 were later declared as “public roads” and so became Government owned properties. The Government in turn transferred the lands to the Respondent.

According to McCarthy these were access roads to the hotel and were not public roads.

By 2007, the Appellant had problems with the loan repayments and the Respondent then prepared the mortgage sale proceedings, but the Appellant offered them other lands for the Government planned highway at Fugalei to connect with the Vaiusu area.

The offer was declined and the Respondent took legal action and on 24 December 2007, unsuccessfully made a public auction for the lands.

The Respondent then bought the mortgaged property for $2,902,864 under the Memorandum of Contract.

The unsigned Memorandum of Contract
In his decision of 2019, Justice Clarke noted that the Memorandum of Contract was “unsigned and undated.”

“No copy of a Transfer Form, Deed of Conveyance or such other registrable instrument was tendered into evidence to determine the date of transfer of the security property to the Defendant (currently the Respondent in the Appeal),” said Justice Clarke.

He also noted that a document from the Land Registrar was not provided to assist in identifying the date on which the transfer of ownership was done as purported under the mortgagee powers of sale.

On Monday’s proceedings, Leuluaialii pointed out in the Computer Folio, that the transfer of land from the Appellant to the Respondent was illegal.

“The Computer Folio does not identify the name of the proprietor or the person the land is transferred to,” she argued.

Justice Blanchart asked Leulua’ilii if she could provide a Computer Folio with the Appellant’s name on it as owner of the land, but she did not have the document with her.

Justice Blanchart continued that the case has come a long way and this was a critical point to the hearing, was the Appellant’s ownership over the land and whether it still existed.

He also asked if there were duplicate certificates issued at the time, and counsel Semi Leung Wai assisted and explained the practice here.

“There are no certificates, but counsels prepare Deed of Conveyance with copies submitted to the Lands and Survey Registrar and the Court,” said Leung Wai.

Justice Blanchart pushed on and asked if there was a registration folio but Leung Wai was not able to answer but reminded the Court that the transfer was done first to Government then to his client.

He also referred the Court to the Registrar documents which cited SNPF as the owner of the disputed lands.

To justify his argument, he said that only the owner can approve the sub division of lands, and SNPF did sub-divide the lands in 2010.

“The Appellant is no longer on record as the owner or title of the lands and my client is registered as the proprietor of the lands and that counsel for the Appellant has not provided the actual Computer Folio which shows it,” said Leung Wai.

Presiding judges for the appeal hearing were Chief Justice Satiu Simativa Perese, Justice Peter Blanchart and Justice Rhys Harrison both of New Zealand.

The decision is reserved.