Lafaele v Vito [2001] WSSC 2 (24 January 2001)

Transcription

1 Lafaele v Vito [2001] WSSC 2 (24 January 2001) IN THE SUPREME COURT OF SAMOA HELD AT APIA BETWEEN: MALETA LAFAELE of Taufusi and Palisi First Plaintiff AND ANASTASIA TUPAI of Wellington, New Zealand. Second Plaintiff AND KATALINA VITO, MAILEI VITO and his wife SITUANUU VITO, MALETA VITO, LUI SEFO and his wife PAULA SEFO, MOLI SEFO, TIMU SEFO, SIAOSI KASIPALE and his wife SALEVAO KASIPALE, PITA TIMU, LAFAELE LUI and his wife ANE LAFAELE, all of Taufusi. Defendants Counsel: T.R.S. Toailoa for first and second plaintiffs C. Peteru for defendants Hearing: 30, 31 August and 10 October 2000 Judgment: 24 January 2001 JUDGMENT OF SAPOLU CJ This case is really about family friction between the first plaintiff and the defendants with the second plaintiff supporting the first plaintiff. As a consequence, the first and second plaintiffs have sought from the Court an order to evict the defendants from the land they are living on with the first plaintiff at Taufusi in the Apia area. The first plaintiff, the second plaintiff and the defendant Katalina Vito are sisters. The defendant Mailei Vito is an "adopted" son of Katalina Vito even though he is really her stepson. The defendant Situanu u Vito is the wife of Mailei Vito. The defendant Maleta Vito is an "adopted" daughter of the defendant Katalina Vito but she is really a niece of Katalina Vito and both plaintiffs since her late mother Kilisi was a sister of Katalina Vito and both plaintiffs. The defendants Mailei Vito and Maleta Vito were not legally adopted by Katalina Vito, they were adopted in the customary way. The defendant Lui Sefo is a son of Kilisi the late sister of Katalina Vito and the plaintiffs. So he is a

2 nephew of Katalina Vito and the plaintiffs. His wife is the defendant Paula Sefo and his brothers are the defendants Moli Sefo and Timu Sefo. The defendant Siaosi Kasiple is a relative of Lui Sefo and his wife was the defendant Salevao Kasipale. As for the defendant Lafaele Lui, he is a nephew of Katalina Vito and the plaintiffs. His deceased father was a brother of Katalina Vito and the plaintiffs. The defendant Ane Lafaele is the wife of Lafaele Lui. As for the defendant Pito Timu, it is not clear from the evidence what relationship, she has to the plaintiffs or any of the defendants. Except for the defendants Salevao Kasipale and Pito Timu, the first plaintiff and the rest of the defendants are living on the same land at Taufusi. The land is about a quarter of an acre in area. On the land is a two storey building. The first plaintiff lives by herself on the top floor and the defendants Katalina Vito, Maleta Vito, Mailei Vito and his wife Saituanuu Vito live on the ground floor. The defendants Lui Sefo, his wife Paula Sefo, Moli Sefo, Timu Sefo and Siaosi Kasipale live in a separate house. And the defendants Lafaele Lui and his wife Ane Lafaele live in another house. So it appears here is a family living in three separate houses on the same land which is about a quarter of an acre. For many years, the first plaintiff lived peacefully with her sister Katalina Vito, her niece, her nephews and their wives who are the defendants in these proceedings. Then sometime in 1999 friction started to happen between the first plaintiff and the defendants. Each side has criticised and blamed the other for being the cause of the friction. But it appears from the evidence that the trouble within the family started when some of the defendants with the consent of Katalina Vito dismantled a umu (cooking house) which was on the land without notifying the first plaintiff who became very displeased. The defendants, who are the nephews of the first plaintiff and who dismantled the umu, said in their evidence that they pulled down the umu because it was old and decayed. The friction between the first plaintiff and the defendants deteriorated to the point where the first plaintiff left the land and lived elsewhere because of the abusive and threatening remarks made by some of the defendants (not including Katalina Vito) to her. She is now, with the support of the second plaintiff, seeking a Court order to evict the defendants from the land. All the parties have claimed rights to the land. This has made it necessary to refer to the history of this land, from the time of its first occupation and subsequent acquisition by the family of the plaintiffs and the defendants, in order to be clear whether their respective claims have any merits. It is clear that the parents of Katalina Vito and both plaintiffs had been serving as catechists in the Catholic Church. Sometime after they had retired as catechists, the parents of Katalina Vito and the plaintiffs occupied the present land with permission of the Catholic Church which was then the owner of the land. This was in the late 1950 s. The evidence of Katalina Vito suggests that this happened in 1958; the first plaintiff says it was about 1960 that her family first lived on this land; and the witness Epifania Ioane, another sister of Katalina Vito and the plaintiffs, says it was in 1956 that her parents and family first lived on this land. The land was then in a very swampy condition and the whole family worked hard together to reclaim a site to build a house to live in. Then in 1960, Kalala, one of the sisters of Katalina Vito and the plaintiffs, left for New Zealand. This was followed by the second plaintiff in It then appears that during a visit to Samoa by Kalala and the second plaintiff, they discussed with their father the question of buying off the land they were living on. According to the second plaintiff, it was then agreed between the three of them that Kalala and herself would return to New Zealand and sent over the monies to buy off the land. After careful consideration of the whole of the evidence, I have decided to accept that it was only

3 Kalala and the second plaintiff who contributed to the purchase price of the land from New Zealand. I do not accept that Katalina Vito or Epifania Ioane contributed any funds to the purchase price of the land. I also do not accept that any of the nephews of Kalala or the second plaintiff contributed any money to the purchase price of the land. The first plaintiff in her evidence says she did not contribute any money to the purchase of the land. The difficulty with this part of the evidence, as it will become more clear later in this judgment, is that the evidence for the plaintiffs makes no attempt whatsoever to show in what proportion each of Kalala and the second plaintiff contributed to the purchase price of the land which was one thousand tala. From the receipts for the payments that were made for the purchase of the land, it is clear that the first payments were made on 17 January 1970 and the last payment was made on 12 July According to the first plaintiff s evidence, these payments were either made direct from New Zealand to the Mulivai office of the Catholic Church or they were made to her father and she, herself, would take the money to the Mulivai office as her father was then a blind old man. However, even though the last payment for the land was made on 12 July 1971, the deed of conveyance was not finalised until 30 October 1975 by which time the father of Katalina Vito and the plaintiffs had passed away in The reason for the delay, according to the first plaintiff s evidence, was that the land had to be surveyed and re-surveyed three or four times. The deed of conveyance, which is dated 30 October 1975, was made in the names of the first plaintiff and her mother as tenants in common in equal shares. The area of the land is shown in the deed of conveyance to be just over a quarter of an acre. By a subsequent deed, dated 1 July 1976, the first plaintiff s mother conveyed her one half undivided share in the land to her daughter Kalala in New Zealand so that, in effect, Kalala became a tenant in common in equal shares with the first plaintiff in the land. The mother of the plaintiffs, Kalala and Katalina Vito has since passed away. On 5 February 1999, Kalala also passed away in Wellington, New Zealand. She had no children. Her husband predeceased her in January of the same year. Both her parents also predeceased her. In reply to questions from the Court, the second plaintiff said that her brother Lui Lafaele, the father of the defendant Lafaele Lui, also predeceased Kalala. Only her sisters Katalina Vito (one of the defendants), Epifania Ioane, Kilisi (the mother of the defendants Lui Sefo, Moli Sefo and Timu Sefo,) Maleta (the first plaintiff), Malia Akeli and herself were still alive at the time Kalala passed away. The said Kilisi later passed away in May 1999 intestate. In her evidence, the second plaintiff also said that when her sister Kalala became sick in New Zealand, Kalala stayed with her for a short while and she and her children looked after her sick sister. Kalala was then transferred to a hospital in Wellington where she passed away on 5 February The second plaintiff also said in her evidence that one month before Kalala passed away, Kalala gave her the deed by which their mother had gifted her one half undivided share in the land to Kalala and she told the second plaintiff to put her name and those of her children on the land, meaning on Kalala s share of the land. According to the second plaintiff, her husband, her nephew Paulo Sefo, her son in law and other people were all present at that time. Counsel for the defendants did not call evidence to challenge this part of the evidence given by the second plaintiff. That is essentially the history of the land which is the subject of these proceedings. It does raise some important and difficult issues of law. But before I come to those issues, I think I should refer to the question of the two storey house that is on the land. The evidence is clear that all the brothers and sisters, including both plaintiffs and the defendant Katalina Vito, contributed to the building of the two storey house which was to be the home for the family. It was the understanding of all concerned that whoever of the brothers or sisters wanted to stay in the two storey house could do so as it was the family home. The house was built after the

4 father of the plaintiffs and Katalina Vito passed away. It was initially occupied by the first plaintiff and her mother. Later in 1987, Katalina Vito and her "adopted" children, Mailei Vito and Maleta Vito, occupied the ground floor and the first plaintiff occupied the top floor. At the conclusion of the evidence, I asked both counsel for written legal submissions. I have received written legal submissions only from counsel for the defendants. I will deal with the legal issues regarding the land in this case in the order they are raised in counsel s submissions. I will then refer to the question of the two storey house. The action by the plaintiffs is for an order to evict the defendants from the land. As part of that action and in order to achieve its purpose, the second plaintiff has also sought an order to vest the one half undivided share of Kalala in her, by reason of the gift by Kalala of her undivided share in the land to the second plaintiff and her own contribution to the purchase price of the land. Once that is done, then the first and second plaintiffs would be the sole registered owners of the land and that should facilitate the eviction of the defendants. The principal grounds on which the defendants have resisted the plaintiffs action are: the presumption of a resulting trust, the alleged gift by Kalala to the second plaintiff is not valid, and the rules of succession in an intestacy in respect of Kalala s undivided share in the land. Presumption of a resulting trust Counsel for the defendants submits that as the defendant Katalina Vito and her sister Epifania Ioane contributed to the purchase price of the land, the registered owners, namely, the first plaintiff, who did not contribute to the purchase money, and Kalala, deceased, who did contribute in part to the purchase money, hold the land on the basis of a resulting trust in favour of Katalina Vito and Epifania Ioane in the proportions of the respective contributions made by Katalina Vito and Epifania Ioane to the purchase price of the land. Counsel relied on the classic statement by Eyre L.C.B. in Dyer v Dyer (1788) 2 Cox 92 at 93; 30 ER 42 at 43 where it is stated: "The clear result of the cases, without a single exception, is that the trust of a legal estate, whether freehold, copyhold, or leasehold; whether taken in the names of the purchasers and others jointly, or in the name of others without that of the purchaser, whether in one name or several, whether jointly or successive, results to the man who advances the purchase money. This is a general proposition supported by all the cases, and there is nothing to contradict it; and it goes on a strict analogy to the rule of common law, that where a feoffment is made without consideration, the use results to the feoffor. I have already dealt somewhat extensively with the presumption of a resulting trust as it applies to contributions by more than one person to the purchase price of land where the land is registered in the name of another in my recent judgment delivered on 20 December 2000 in the case of Sagato Woo Ching v Barbara Elisara & Andrew Roebeck. I do not propose to repeat the same discussion in this judgment as I have already decided that only the second plaintiff and Kalala contributed to the purchase price of the land. I do not accept that the defendant Katalina Vito and Epifania Ioane contributed to the purchase price of the land. The submission based on the presumption of a resulting trust in favour of Katalina Vito and Epifania Ioane therefore fails on the evidence. Counsel for the defendants, however, did recognise that Kalala s share in the land is now held as part of her estate even though her name still appears as one of the registered owners of the land. Whilst on the presumption of a resulting trust, there is a misconception in the action by the second plaintiff I need to refer to. One of the grounds on which the second plaintiff is claiming to have the

5 share of Kalala in the land vested in her, is that she contributed to the purchase price of the land. The second plaintiff cannot do this. She has to claim on the strength of her own contribution to the purchase price of the land on the basis of the presumption of a resulting trust for a share in the land which is proportional to the extent of her own contribution to the purchase price of the land. She cannot claim to be entitled to a part of Kalala s share in the land on the basis of her contribution to the purchase money as Kalala was the other contributor to the purchase price of the land. One contributor to the purchase price of land cannot claim to be entitled to the other contributor s share in the land on the basis of her own separate contribution to the purchase price of the land provided their contributions were made in the character of purchasers. The other difficulty in this case is that the proportion of the respective contributions made by Kalala and the second plaintiff to the purchase price of the land does not appear from the evidence. So it is not known what proportion of the land each of them would have been entitled to if they had both claimed on the presumption of a resulting trust. Gift from Kalala to the second plaintiff It is clear from the evidence which was given by the second plaintiff that what happened was that Kalala, at the relevant time, was very ill. One month before she died, Kalala gave the second plaintiff the deed by which her mother had gifted her one half undivided share in the land as tenant in common to her and she told the second plaintiff to put her own name and the names of her children on the land. If that is so, the second plaintiff cannot claim to have Kalala s share vested in her alone, because Kalala gifted her share in the land not to the second plaintiff alone, but the second plaintiff and her children. In equity, a gift of land made by one person to another, would be incomplete and therefore not valid, unless the donor has done everything which is necessary to be done on his part, to effect a transfer of legal title to the donee. If the donor has not done everything which is necessary to be done on his part to effect a transfer of legal title to the donee, the gift is incomplete and is therefore not valid. Such a gift is sometimes described as an imperfect gift. Under Samoan law, I think what is necessary to be done by a donor to complete a gift of land, is for the donor to execute a deed of conveyance in registrable form and deliver it unconditionally to the donee. It would not matter if the deed has not been stamped or registered. The gift would still be complete and effective in equity, for stamping and registration are matters which can be attended to by the donee himself. In a series of cases, the High Court of Australia has demonstrated how a gift, made by a donor to a donee, may be complete and effective in equity. The first case is Anning v Anning (1907) 4 CLR 1046, Griffith CJ said at p "I think that the words necessary to be done, as used by Turner LJ in Milroy v Lord 45 E.R mean necessary to be done by the donor... If, however, anything remains to be done by the donor, in the absence of which the donee cannot establish his title to the property as against a third person, the gift is imperfect, and in the absence of consideration the Court will not aid the donee as against the donor. But if all that remains to be done can be done by the donee himself, so that he does not need the assistance of the Court, the gift is, I think, complete." In the next case of Norman v Federal Commissioner of Taxation (1963) 109 CLR9, Windeyer J said at pp28-29: "[The] weight of authority is, I think in favour of the view that in equity there is a valid gift of property transferable at law if the donor, intending to make, then and there, a complete disposition

6 and transfer to the donee does all that on his part is necessary to give effect to his intention and arms the donee with the means of completing the gift according to the requirements of the law." In the next case of Cope v Keane (1968) 118 CLR 1, Kitto J stated at p 6: "To complete the gift the testator had to do all that, according to the nature of the property as land under the provisions of the Real Property Act, was necessary to be done by him in order to transfer the property: Anning v Anning (1907) 4 CLR Then in the recent case of Corin v Patton (1990) 169 CLR 540 which was also concerned with a gift of real property, Mason CJ and McHugh J in a joint judgment, after reviewing a number of Australian and English authorities, said at p. 559: "[The] principle is that, if an intending donor of property has done everything which is necessary for him to have done to effect a transfer of legal title, then equity will recognise the gift. So long as the donee has been equipped to achieve the transfer of legal ownership, the gift is complete in equity. Necessary used in this sense means necessary to effect a transfer. From the view point of the intending donor, the question is whether what he has done is sufficient to enable the legal transfer to be effected without further action on his part." In New Zealand a similar principle was laid down by the Court of Appeal in Scoones v Galvin and Public Trustee [1934] NZLR 1004, where Myers CJ and Blair and Kennedy JJ said in a joint judgment at p "In our opinion where the gift is one of land under the Land Transfer Act, the delivery to the donee of the memorandum of transfer alone is not sufficient. But if the transfer is accompanied by the certificate of title, then there is nothing more which it is necessary for the donor to do to perfect the gift. It is true that he may pay the gift duty and attend to the stamping of the transfer and the registration thereof, but all these things can equally be done by the donee, provided that the donee has the documents. If then both documents are delivered to the donee, or to someone on his behalf, in our opinion there is a complete gift." In Hinde, McMorland and Sim s Butterworths Land Law in New Zealand (1997) it is stated at para 2.046: "Recent cases have made it clear that the test is whether the donor has done everything which, according to the nature of the property comprised in the gift, was necessary to be done by the donor in order to transfer the property. As long as no further step remains to be taken by the donor the equitable test of completeness is satisfied and the gift may be regarded as complete in equity with the result that the donee has the equitable interest in the property even though some further acts (such as stamping and registering documents) remain to be done by other persons in order to transfer the legal title. In such a case the donor holds the bare legal title upon trust for the donee." In reading the Australian and New Zealand cases, one should bear in mind, that those jurisdictions have adopted the Torrers system of title to land, and a transfer of title to land comprised in a gift may be effected by the transfer by the donor of a duly executed memorandum of transfer and the

7 delivery of the relevant certificate or other instrument of title to the donee or someone acting on his behalf. This is different from Samoa, where a transfer of title to land which is comprised in a gift, is effected by the delivery of a duly executed deed of conveyance by the donor to the donee or someone acting on the donee s behalf. In the present case, all that Kalala did, according to the evidence of the second plaintiff, was to give her the deed by which her mother conveyed her one half undivided share in the land as tenant in common to Kalala, and Kalala asked her to put her name and the names of her children on the land. Kalala did not execute a deed of conveyance to transfer her share in the land to the second plaintiff and her children. So Kalala did not, before she died, do everything that was necessary to be done on her part, to effect a transfer of the legal title to the second plaintiff and her children. The alleged gift is therefore incomplete in equity. It follows that it is not valid. In stating the rationale for the Court s attitude in refusing to complete an incomplete gift, Mason CJ and McHugh J said in their joint judgment in Corin v Patton (1990) 169 CLR 540 at p. 558: "The rationale for refusing to complete an incomplete gift is that a donor should not be compelled to make a gift, the decision to give being a personal one for the donor to make. However that rationale cannot justify continued refusal to recognise any interest in the donee after the point when the donor has done all that is necessary to be done on his part to complete the gift, especially when the instrument of transfer has been delivered to the donee. Just as a manifestation of intention plus sufficient acts of delivery are enough to complete a gift of chattels at common law, so should the doing of all necessary acts by the donor be sufficient to complete a gift in equity. The need for compliance with subsequent procedures such as registration, procedures which the donee is able to satisfy, should not permit the donor to resile from the gift. Once the transaction is complete so far as the donor is concerned, he has no locus poenitentiae. Viewed in this light, Griffith CJ s approach has the advantage that it gives effect to the clear intention and actions of the donor rather than insisting upon strict compliance with legal forms. It is a reflection of the maxim equity looks to the intent rather than the form. " There is one more issue that I need to deal with in this part of my judgment. Section 16 of the Land Registration Act 1992/1993 provides: "No instrument of title shall in any manner affect the legal title to land until and unless such instrument is registered in the Land Register in accordance with this Act." At face value, this provision would appear to make any deed of conveyance of land comprised in a gift invalid and ineffective until it has been registered. A similar provision had to be considered in Corin v Patton (1990) 169 CLR 169. Again Mason CJ and McHugh J, in relation to such a provision in the Real Property Act 1900 (N.S.W.), said at p 560 of their joint judgment: "If we accept that In re Rose correctly states the consequences of the approach taken by Griffith CJ in Anning v Anning, there remains the problem of accommodating that approach to the injunction contained in s. 41 of the Real Property Act to the effect that until registration, an instrument of transfer shall be ineffectual to pass an estate or interest in the land. Although that injunction applies to equitable as well as legal estates, it does not touch whatever rights are behind the instrument. Where a donor, with the intention of making a gift, delivers to the donee an instrument of transfer in registrable form with the certificate title so as to enable him to obtain registration, an equity arises, not from the transfer itself, but from the execution and delivery of the transfer and the delivery of

8 the certificate of title in such circumstances as will enable the donee to procure the vesting of the legal title in himself. Accordingly, s. 41 does not prevent the passing of an equitable estate to the donee under a complete transaction." On the basis of that statement of principles, if Kalala, before she died, had duly executed a deed of conveyance of her share in the land to the second plaintiff and her children, and had it delivered unconditionally to them, or to someone on their behalf, that would have been sufficient to pass the equitable estate in Kalala s share in the land to the second plaintiff and her children. It would not matter if such a deed of conveyance was not registered before Kalala passed away. I turn now to the third ground on which the defendants oppose the plaintiff's action for an eviction order, namely, the rules of succession in an intestacy. Succession in an intestacy The clear impression from this case is that Kalala died intestate. She had no children. Her husband predeceased her. So were her parents. Her brother Lui, the father of the defendant Lafaele Lui, also predeceased her. Her only siblings who were alive at the time of her death were her sisters Katalina Vito, Epifania Ioane, Kilisi (the mother of the defendants Lui Sefo, Moli Sefo and Timu Sefo), Malia Akeli, and the first and second plaintiffs. Kilisi has since passed away intestate. It would also appear that no letters of administration have been granted in respect of Kalala s estate and therefore no administrator of her estate has been appointed. Section 44(1)(d) of the Administration Act 1975, as far as relevant, provides: "If the intestate leaves no husband or wife or issue or parent, the estate shall be held in trust for the following persons living at the death of the intestate, and in the following order and manner, namely: "Firstly on the statutory trusts for the brothers and sisters (whether of full or half blood) of the intestate." Under the law, Kalala s surviving sisters would appear to hold a "floating equity" in respect of her estate, rather than an equitable interest, until the estate has been administered and it becomes clear whether there is any residue of her estate. In Snell s Equity (1990) 29 th edition, it is stated at p. 23: "The term an equity... may mean a floating equity, a term which may be used to describe the interest of a beneficiary under a will or intestacy in any property of the deceased which he hopes to receive if it is not required for the payment of debts or other liabilities." Then at p.26 of the same text, it is there stated: "Although equity equally gives effect to equitable claims to property by recognising and enforcing equitable interest in it, there is a class of case in which equity achieves its object by other means. On the death of a person, all his property vests in his personal representatives; yet apart from those to whom specific items have been given, all others who under the will or intestacy are beneficially entitled to the property do not forthwith obtain equitable interests in it, for any or all of it may be needed by the personal representatives for the payment of debts or other liabilities. Even if the

9 estate is obviously solvent, the person entitled to residue cannot know until the administration is complete which particular assets will constitute the residue on the final distribution. "Accordingly, the whole ownership is held to be vested in the personal representatives; and until an assent is made in respect of any particular asset, the beneficiary prospectively entitled to it has no greater interest in it than what may perhaps be described as a floating equity, which may or may not crystallise. In such cases equity protects the beneficiaries, not by giving them equitable interests, but by ensuring the due administration of assets by the personal representatives." It follows from these statements of principles that as Kalala died intestate without children, and her husband and parents having predeceased her, her sisters who survived her, would have a "floating equity" over her share in the land until her estate has been administered. That "floating equity" may or may not crystallise. It depends on whether Kalala s share in the land would be needed to meet any debts or other liabilities she might have had at the time of her death. It does not appear from the evidence whether she had any such debts or liabilities. Notwithstanding that, her surviving sisters "floating equity" needs to be protected by the Court by ensuring due administration of her estate. This must mean that due administration of Kalala s estate is required in order to bring certainty to the current situation concerning the disputed land. It also means that no decision should be made on whether the defendant Katalina Vito, a sister of Kalala, and her "adopted" children should be evicted from the land until Kalala s estate has been administered and it becomes clear whether the "floating equity" would crystallise. The action against Katalina Vito and her "adopted" children should be dismissed on that basis as premature. As for the defendants Lui Sefo, his wife Paula Sefo, Moli Sefo and Timu Sefo, their mother Kilisi survived her sister Kalala. But Kilisi has since passed away. It does not appear from the evidence whether letters of administration have been granted in respect of Kilisi s estate. Counsel for the defendants would have to submit, within 10 days, an affidavit from an appropriate person to clarify whether letters of administration have been granted in respect of Kilisi s estate. Once that is known known, then I will make a decision on the action against these defendants. Two storey house on land As it appears clear from the evidence, the plaintiffs, the defendant Katalina Vito, and their brothers and sisters all contributed to the building of the two storey house on the land, on the understanding that the house would be their family home and any member of the family could live in it. At present, the first plaintiff is living on the top floor and the defendant Katalina Vito and her "adopted" children on the ground floor. In my judgment, neither the first or second plaintiff or both of them acting together can remove Katalina Vito and her children from the house, notwithstanding that the land on which the house is located is registered under the names of the first plaintiff and Kalala. The doctrine of equitable estoppel would prevent the plaintiffs from doing so. As long as the two storey house is there, any member of the family may live in it pursuant to the understanding in which the house was built with contributions by all of the brothers and sisters. The plaintiffs action to evict Katalina Vito from the house, and therefore the land, would also fail on that basis. It was not, however, argued whether the presumption of a resulting trust would apply on the basis of the contribution by Katalina Vito to the building of the house so that she would have an equitable interest in the house as a tenant in common: see Sagato Woo Ching v Barbara Elisara & Andrew Roebeck (supra). I leave that point open. In respect of the defendants Lui Lafaele and his wife, their defence is that the father of Lui Lafaele, who was a brother of the plaintiffs and the defendant Katalina Vito, had also contributed to the building of the two storey house. But Lui Lafaele and his wife are not living in the two storey

10 house. They have built a separate house of their own on the disputed land in which they are living with the defendant Siaosi Kasipale. They have no "floating equity" over the land as the father of Lui Lafaele predeceased his sister Kalala. The question is whether Lui Lafaele, his wife, and Siaosi Kasipale should be evicted from the land for they are not living in the two storey house but in a separate house. Submissions from counsel for the defendants did not really address that question. I have decided to further defer a decision on that question for both counsel to file written legal submissions on it within 21 days. Relevant authorities to be cited. In view of the decision I have reached, counsel for the plaintiffs may wish to apply to the District Court under Part IV of the Criminal Procedure Act 1972 for bonds for preservation of the peace, if the friction between the first plaintiff and the defendants continues. In this way, the first plaintiff should be able to return in peace to her home for breach of a bond for preservation of the peace could have serious consequences for a defendant. Conclusions (1) The action by the first and second plaintiffs to evict the defendant Katalina Vito and her "adopted" children from the land is dismissed. (2) The action by the second plaintiff to vest in her the share of Kalala, deceased, in the land is also dismissed (3) A decision on the action by the first and second plaintiffs to evict the defendants Lui Sefo, Paula Sefo, Moli Sefo and Timu Sefo is further deferred for counsel for the defendants to submit within 10 days an affidavit from an appropriate person to clarify whether letters of administration have been granted in respect of Kilisi s estate. (4) A decision on the action by the first and second plaintiffs for an order to evict the defendants Lui Lafaele, his wife, and Siaosi Kasipale is further deferred for both counsel to file legal submissions within 21 days. (5) Relevant authorities to be cited. I will defer making an order as to costs for 21 days. CHIEF JUSTICE Solicitors: Toailoa Law Office for first and second plaintiffs MVR Peteru Law Firm for defendants 1998 University of the South Pacific PacLII: Copyright Policy Disclaimers Privacy Policy Feedback URL: