Tokuma family disappointed over the absence of affidavit in hearing of land claim

The claimant Nanai Liutofaga Tokuma making a point with his lawyer Pa’u Tafaogalupe Mulitalo

By Lagi Keresoma

APIA, SAMOA – MONDAY 12 MARCH 2018: The leader of the Tokuma family fighting for the legal ownership of the land at Sogi against the Government has voiced disappointment over the absence of his affidavit during the hearing of their claim at the Supreme Court last Friday.

Nanai Liutofaga Tokuma, who previously told the Court that the land was gifted by the Government his father Turore Tokuma, for his service and an incident that almost cost his life, voiced their disappointment to Talamua outside Court.

Central to his disappointment is his affidavit that he said “was sworn in twice in 2016,” and he wanted his lawyer to present the affidavit.

“But the case is (now) over and it was never produced,” said Nanai.

The former police officer said everything he could remember from his conversation with his parents are all in the affidavit, specifically the part where he insisted the land was gifted to his father, because of his service and the incident that almost cost his life.

The land in question is a 40/50 acres at Sogi behind the former location of the German Firm that brought Tokuma’s father from the Solomon Islands during the indentured labour trade in the early 1900’s.

Nanai had insisted throughout the two years the matter had been in Court, that the land was a gift from then Administrator or Public Trustee, Percival Earnest Patrick to his father.

And the incident according to Nanai, was that his father Turore Tokuma was about to be executed for the murder of a Chinese man, but was saved when the real murderers owned up to the crime.

Last year, the Samoa Land Corporation (SLC) who is the respondent in the claim, lost a strike out motion against the Tokuma family, and Nanai believes that the case should have been continued after that ruling. However, he had to wait another year for his claim to be heard.

Core element in argument for land claim dropped
The main element,  which is the word “gift” to the argument of claim has been dropped out of the eight causes of action.

The “gift” part was dropped by counsel for the Tokuma family, Pa’u Tafaogalupe Mulitalo, after his witness Nanai failed to incorporate the word “gift” in his evidence before Justice Leiataualesa Daryl Clarke last week.

During counsels’ final submission last Friday, he told the Court that the “gift” part did not transpire strongly  from the evidence of Nanai, hence his decision to drop it.

“I will not persist with the gift cause of action on the basis that the evidence didn’t strongly justify that part,” Pa’u told Court.

“You appear for your client. Once you are withdrawing, I will not consider them,” ruled His Honour Leiataulesa Daryl Clarke.

The two causes of actions pursued by Pa’u included the unjust enrichment and estoppel adolescent reasons of encouragement.

Counsel referred to the length of time (which is 70 years) that the Tokuma family has lived on the land without any interference from the Government.

“There is no evidence Government tried to evict the family,” said Pa’u.

With the unjust enrichment cause, Pa’u said the Tokuma family had developed the land which used to be a swamp and have spent a lot on its development.

Some of the remaining residents at the Sogi land under dispute

Court struggle to understand claim that has no evidence
Justice Clarke told counsel that he was having difficulty in dealing with a claim that does not present evidence to support it.

The land claim is a 40/50 acres of land at Sogi, which is behind the Tui Atua Tupua Tamasese Efi (TATTE) government building.

According to evidence produced by Sa’u Leiataua Feagai of the Ministry of Natural Resources and Environment (MNRE), the land claimed has never been surveyed including the boundaries, but the land is still under the Government.

Pa’u referred to the ‘no interference from Government’ but Justice Leiataualesa pointed out that was part of the problem.

“That is why I asked if a survey was done on the land,” said Justice Clarke.

“I am unclear about what land is being claimed, apart from general comments that the land is behind TATTE or Tanoa (hotel). “There is no evidence saying this is the land that the claimant lays claim to,” Justice Clarke pointed out to counsel.

“There is no certainty to the Court on the claim, and I’m having difficulty understanding,” said Justice Clarke.

He pointed out when there is a claim on a land, there is a provision people often take, and then bring to Court survey plans with numbers, but this has not occurred in the Tokuma case.

Nanai admitted to Court that since their occupancy of the land 70 years ago, no survey has ever being done on the land.

Justice Clarke said there was very little evidence to guide the Court on the claim, especially the plaintiff seeking an order from the Court to stop any eviction from the land.

Pa’u also pointed to section 9 of the Repossession Act to reinforce his argument, but Justice Clarke intervened and said such argument relating to Adverse Possession would not work as adverse possession was removed some years ago.

Justice Clarke noted from the plaintiff’s statement of claim that five people are named on the statement. However, only Nanai gave evidence. When counsel was asked to explain, he said the weight of knowledge regarding the matter was on Nanai.

The other five include Nanai’s sisters and brother who could have shed light to the matter. Justice Clarke pointed out that as counsel, he could have thought differently about it.

The respondent, Samoa Land Corporation provided three witnesses.

The Respondents defense was basically on hearsay evidence and the fact that there were no evidence to prove that the land was gifted to Turore Tokuma. There was also no concrete evidence that the late Prime Minister, Mata’afa Fiame Mulinu’u consented to have the Tokuma family continue occupancy of the claimed land, and the plaintiff’s evidence should not be admitted as evidence.

The Court will deliver its decision in six weeks time.