Fiso v Reid [1996] WSCA 3; 08 1995 (29 August 1996)

IN THE COURT OF APPEAL OF WESTERN SAMOA
HELD AT APIA

C.A 8/95
BETWEEN

ATIIFALE FISO

of Matautau-tai, Workman
Appellant
AND

PETER EUGENE REID, JUNIOR

of Pago Pago, American Samoa, Businessman for himself and
as Attorney of the Trustees of the Estates of ERNEST J. REID,

RICHARD F. REID, CECIL W. REID and BLANCHE H. REID

Respondent

Coram: The Rt Hon. Lord Cooke of Thorndon, President
The Rt Hon. Sir Gordon Bisson
The Hon. Mr Justice Sheppard

Hearing: 29 August 1996

Counsel: T.R.S. Toailoa for Appellant
T.K. Enari for Respondent

Judgment: 29 August 1996

JUDGMENT OF THE COURT DELIVERED BY SHEPPARD J.

This is an appeal from a judgment of the Supreme Court of Western Samoa given by Casey J. on 23 August 1995. The orders made by his Honour were that the defendant and his family were to vacate the disputed land by 23 October 1995, but with leave reserved to each party to apply on seven days notice for an extension or further extension of that order. A prayer for relief by the defendant, now the appellant, seeking a declaration that he was the lawful owner of the land in question was dismissed.

The land in question comprises almost six acres. Particulars of the title are to be found in the record, although we need not refer to this in any detail except to say that there are three parcels of land making up the total and that they are now registered in Volume 6, Folio 105 of the Land Register.

The claim made by the respondent, the plaintiff in the action, Mr Reid, is pleaded in a statement of claim for possession of the land. Paragraph 2 of the statement of claim alleged that the appellant was a relative of the plaintiff and resided on the land with the consent and permission of the parents of the plaintiffs and of the plaintiffs themselves. It was pleaded that it was a condition of occupation by the appellant that he would not construct any permanent structures on the land. It was alleged that that condition was broken. An order was sought evicting the appellant from the land. The amended defence admitted certain matters in the statement of claim, but the essential allegations were denied. It was also pleaded that the appellant's family had had continuous occupation of the land for over 50 years. It was pleaded that the appellant approached Mr Reid in or about 1972 to discuss his occupation of the land but that no definite arrangement was made. It was then alleged that since the time of this meeting with Mr Reid the appellant had had continuous and exclusive occupation of the land, with the consequence that Mr Reid was statute barred under the provisions of the Limitation Act 1975 from bringing the action. On that basis an order was sought dismissing the claim brought by Mr Reid. An order was also sought that the subject title of the whole of the land should be conveyed to the appellant.

We should mention at this point that the title of the proceedings, that is to say the way that the proceedings are intituled, is as a matter between Peter Eugene Reid Junior of Pago Pago, American Samoa, Businessman for himself and as Attorney of the Trustees of the Estates of Ernest J. Reid, Richard F. Reid, Cecil W. Reid and Blanche H. Reid. The defendant is Atiifale Fiso of Matautu-tai, Workman. There is an initial argument for the appellant that Mr Reid did not have standing to issue proceedings except insofar as his own interest in the land was concerned. Counsel for Mr Reid resisted the submission on the basis of paragraph 1 in the statement of claim which pleaded that the plaintiffs were the registered owners of the land and that that paragraph was admitted in the amended statement of defence. In our opinion that submission is good because the reference to the plaintiffs picks up the reference to them in the title to the proceedings. There was no occasion therefore for Mr Reid to do any more than he had to in relation to this question. It was not raised before his Honour. We reject the submission.

The relevant provisions of the Limitation Act 1975 are to be found in ss. 9 and 14. Section 9(2), so far as it is relevant, provides:

9. Limitation of actions to recover land -

..........

(2) No action shall be brought by any other person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him or to some person through whom he claims:

There is a proviso which is not relevant because it refers to the position in relation to the Government.

Section 14(1) provides:

14. Right of action not to accrue or continue unless there is adverse possession - (1) No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run (hereafter in this section referred to as adverse possession), and, where under the foregoing provisions of this Act any such right of action is deemed to accrue on a certain date and no person is in adverse possession on that date, the right of action shall not be deemed to accrue unless and until adverse possession is taken of the land.

There are in various jurisdictions a large number of authorities dealing with the question of the circumstances in which a person may successfully claim a title as a result of being in possession of land adversely to the registered or legal owner. The primary Judge has himself referred to the decision of the New Zealand Supreme Court in McDonnell v. Giblin [1904] NZGazLawRp 25; (1904) 23 N.Z.L.R. 660, in which it was held that to be adverse the defendant's possession must 'be sufficiently open to enable an owner, reasonably careful of his own interests, if living in the locality, reasonably to discover that someone has taken possession of the land'. His Honour also referred to Buckinghamshire County Council v. Moran [1989] 2 All E.R. 225 where Slade L.J. said at 232-3:

Possession is never 'adverse' within the meaning of the Act if it is enjoyed under a lawful title. if, therefore, a person occupies or uses land by licence of the owner with the paper title and his licence has not been duly determined, he cannot be treated as having been in 'adverse possession' as against the owner with the paper title.

Reference may also be made to the decision of the Court of Appeal in England in Hughes v. Griffin [1969] 1 All E.R. 460, where at 464 Harman L.J. referred to what was said by Romer L.J. in Moses v. Lovegrove [1952] 2 Q.B. 533. His Lordship said at 544:

It seems to me that one can, in addition to looking at the position and rights of the owner, legitimately look also at the position of the occupier for the purpose of seeing whether his occupation is adverse. In my opinion, if one looks to the position of the occupier and finds that his right to occupation is derived from the owner in the form of permission or agreement or grant, it is not adverse, but if it is not so derived, it is adverse, even if the owner is, by legislation, prevented from bringing ejectment proceedings.

There is also the decision of Sir Nigel Bowen, formerly Chief Judge in Equity of the Supreme Court of New South Wales in Mulcahy v. Curramore Pty Ltd [1974] 2 N.S.W.L.R. 464 where His Honour said at 475 that adverse possession must be 'open, not secret; peaceful, not by force; and adverse, not by consent of the true owner'.

There was no submission made that the primary Judge had made any statement which reflected an error of approach or principle to the problem he had to consider. Having considered the matter, it would seem to us that no such submission could possibly have succeeded. In our opinion his Honour directed himself according to proper legal principles in reaching the conclusion that he did. The issues in the case are not in any sense legal ones. Rather the submissions either challenge findings of fact made by his Honour or raise other questions on the basis of the evidence which it is claimed should persuade us to reach a conclusion contrary to that reached by the primary Judge.

The factual background of the case is stated by the primary Judge as are his findings of fact. It is convenient now to refer to the statement of the facts and his essential findings in order that one may understand the framework in which the case was brought to us. His Honour said:

Evidence given by the parties satisfies me that the land came to the plaintiffs through inheritance or purchase by their father from original family members who owned and had occupied it, among them being Sophia, the widow of the original owner. She lived in a large two-storied house on the property with her daughter Tina McCrory and the latter's daughter Eileen. The defendant said that when he was about six, in the mid-1930's, his father (who was a son of Sophia) moved on to the property with him at her invitation. They lived in a fale at the rear of the house and he remembers helping his father work on the land and assisting his mother and her family. He has lived there ever since, working on the coconut, banana and taro plantations. A Mr Brown gave evidence for the plaintiffs that he also lived there between 1934 and 1938 and visited regularly up to the time Sophia died. Tina and Eileen were still there, but they left some time later. He did not recall seeing the defendant.

Mr Reid's father purchased the interests of other family members (including Marie and Eileen McCrory) in 1952 for the not inconsiderable sum in those days of three thousand pounds. Mr Reid said his father told him afterwards that he knew the defendant lived and worked there and agreed he could stay to keep an eye on the property, since the Reid family lived in American Samoa. He understood that after Tina and Eileen left the big house was rented out for a while but burned down in 1967. Mr Reid said that until just before the trial he was unaware of the defendant's claim that he had been living on the property since he was six.

After the fire the defendant still continued to occupy the fale at the rear and married and brought up his family there. He was challenged in cross-examination about the continuity of his residence over the period up to the time Mr Reid's father died in September 1958. Allowing for the confusion and forgetfulness which can affect the memories of witnesses over such a lengthy period, I am generally satisfied that the defendant came to live on the property with his father as he described with the permission of Sophia and other relatives who owned it.

Mr Reid gave evidence that within six months of his father's death the defendant came to see him in Pago Pago to ensure that he could still stay on the property. He told him he had no problems with carrying on his late father's arrangements, but he must not build any permanent structure. Mr Reid said that none of the plaintiffs lived in Western Samoa, but he came across at irregular intervals - sometimes of years; on other occasions two or three times a year, depending on his business commitments. Occasionally he would drive past the land and saw nothing to suggest any change in the nature of the defendant's occupancy, although he later noticed a store had been built, but as this looked a temporary structure he had no concerns.

He said his family had considered subdividing shortly after his father's death, but decided against it because of the sentimental value of the property. However in 1981 he instructed a surveyor who went on to the land without interference and prepared plans for different proposals. In the end it was decided not to proceed at that stage for financial reasons. Mr Reid said he also gave consent at one stage to his cousin Pat to store some building materials on the land while he was working on a contract, and heard nothing further from him.

Late in 1991 or early 1992 a cousin informed him that the defendant was building a permanent structure and he thereupon instructed solicitors in Apia who wrote to him on behalf of the plaintiffs on 9 April 1992 requiring that he stop the construction of the concrete block building then in progress and to vacate the property by 8 May (or later if more time was required) and in default of a response, threatening proceedings. The letter stated that their clients regarded the present use as 'excessive and beyond that which was originally permitted to you by their family when they originally allowed you and your family to live on the land as caretakers'. There being no reply or approach by the defendant, the present action was commenced on 29 April 1993.

His Honour referred then to the defendant's, i.e. the appellant's, evidence:

... the defendant said that on his lawyer's advice he went to Pago Pago to see Mr Reid in 1976 after he had discovered that the property had been conveyed to the plaintiffs in 1972. He strongly denied having been given permission to stay on the land by Mr Reid's father and said he did not know him. He claimed that Mr Reid said he would come over to Apia to discuss the matter and when he heard nothing further from him he phoned, and Mr Reid replied he was not available. The defendant said he then told him not to see foot on the land again 'as he had lied and not complied with what we first discussed'. He said Mr Reid did not reply to this, and went on to say that nobody else but his family had lived on the land since 1972. He added that some village people had tried to build a house there, saying they had instructions from Pago Pago, but he refused to let them on the property. He also said he would not let Pat Reid store materials there. In cross-examination Mr Reid said he knew nothing about the village people, nor (as noted above) did he hear anything more from Pat after giving him permission.

There was then some reference about building in 1987 to which we need not refer, and then to a survey of the land in 1991. His Honour said that the appellant said that he had built a store and later a bar in 1988 and in 1991/92 he built the first concrete block house triggering the reaction from the plaintiffs, and followed it with a second one behind. His Honour referred to the fact that the appellant also made additions to the store and stated that it was clearly his view in Court that because of the time he had lived on the property he was entitled to treat it as his own and did not recognise any right in the plaintiffs.

In carefully prepared submissions, counsel for the appellant has raised four principal issues to be considered. These are set out in paragraph 10 of his submissions as follows:

(a) Whether in respect of the first period, the Learned Judge was correct in law and/or in fact in his findings that the Appellant/Defendant lived on the land as a licensee with the permission of the owners and it continued in the same way with the permission of the successive owners, including Mr Reid's father?

(b) Whether in respect of the same period, the Learned Judge was correct in law and/or in fact in his findings that there were no particulars of matters giving rise to the claim of adverse possession?

(c) Whether in respect of the second period, the Learned Judge was correct in law and/or in fact in his findings that the Appellant occupied the land as a licensee with the permission of the Plaintiff/Respondent? and

(d) Whether in respect of the last mentioned period, the Learned Judge was correct in law or in fact in his findings that the Respondents/Plaintiffs cause of action did not accrue until 1992 when permission was withdrawn by the Respondent's/Plaintiff's solicitor?

We should explain before we go on the distinction drawn in the submissions between what are described as the first and second periods. In a submission that his Honour described as bizarre the then counsel for the appellant at the trial (the submission has been made to us as well), claimed that the licence granted by Sophia was a licence which did not continue after her death in 1947. Counsel said that it followed that the occupation of the appellant after her death could not have been pursuant to any licence because the only person who had given a licence was Sophia who was now deceased. Counsel said that the period of adverse possession then began, with the result that the title had become vested in the appellant 12 years after Sophia's death, that is to say about 1959. It was also said that that period continued down to the time of the conversation which the appellant said he had with Mr Reid in 1976 and, according to the appellant's evidence, ended inconclusively. That was followed by the second period which then began and continued until the solicitor's letter written in 1992, again a period of over 12 years. We do not think that we would describe the argument as bizarre. We think we might be prepared to say it was somewhat ingenious.

It was answered by counsel for Mr Reid in two ways. Firstly, reference was made to evidence which Mr Reid had given concerning his belief that a licence had been granted by his father in similar terms to the one granted by Sophia. The evidence set out in the record is as follows:

Q. Do you know how Atiifale Fiso came to live on the land?

A. Atiifale when he was working at Apia requested my father for a place to reside and my (father) agreed to reside there on the land.

Q. Do you recall what year Atiifale first came to live on the land?

A. I do not exactly recall but I remembered when I first came in 1956 Peter Plowman was renting the house and in 1957 there was a fire and the house has been burnt down and I think that time my father told Atiifale to come and live on the property.

There was some further evidence said by counsel for the appellant to be in conflict with the evidence to which we have referred. That evidence was:

Q. Mr Reid when you say that it was your father who permitted Atiifale to live on the land you had no first knowledge of that except what your father told you?

A. Yes.

Counsel before us submitted that that all this evidence should have been rejected by his Honour and was of no probative value because it was hearsay. The problem is that there was no objection to the evidence at the time it was given. Certainly no record of objection is in the record as far as we have been able to discover.

Both counsel who appeared in the case before us are new to the case and cannot help with their own recollections but, on the material we have, we are inclined to take the view that there was no objection so that the evidence was admissible and was properly before the primary Judge. It tends to establish, contrary to the appellant's argument, that there was a licence in existence in the period which was claimed began to run after Sophia's death in 1947.

It does not seem to us, however, that the appellant's case necessarily depends upon the admissibility of that evidence or its acceptance or rejection by the primary Judge. That is because of the conversation to which we earlier referred in the course of recounting his Honour's findings, between Mr Reid and the appellant, which Mr Reid thought had occurred in 1968. The conversation as deposed to by Mr Reid was of course denied by the appellant but his Honour found it established. Mr Reid recalled that the conversation was within six weeks of Mr Reid's father's death. The appellant came to see him in Pago Pago to ensure he could still stay on the property and Mr Reid told him that he had no problems with carrying on his late father's arrangements but he must not build any permanent structure.

That evidence was accepted. His Honour said:

It will be apparent from the summary of the evidence of Mr Reid and the defendant in the earlier part of this judgment that there is a direct contradiction in their accounts of this meeting. Mr Reid placed it as occurring within six months of his father's death in September 1968. Although the defendant alleged in his statement of defence that it took place in 1972, in his evidence he said it was in 1976. Both agreed he came to Pago Pago, Mr Reid saying his purpose was to ensure that he could still stay on the land following his father's death. He told him there would be no problem so long as he did not build a permanent structure and said he heard nothing further from the defendant. The latter stated that he learned from a lawyer that the Reids had taken title in 1972 and was advised to visit him. In cross-examination he said he went to make sure he would not be evicted. He said Mr Reid told him he would come over to Apia and discuss the matter. When he did not hear from him he warned him not to set foot on the property again.

... I prefer Mr Reid's account of this meeting. He gave his evidence carefully and with moderation, not attempting to say more than he knew. His description of the defendant's approach to him is what might be expected in this situation shortly after a change of ownership. The Reid family evidently had in mind the possible subdivision of this potentially valuable land, and they went so far as to have it surveyed in 1981. Accordingly it is not surprising that Mr Reid would be concerned to ensure there were no permanent structures erected on the property, lending support to his evidence that he made this a condition of the defendant's occupation.

His Honour rejected as implausible the appellant's evidence of telling Mr Reid on the telephone not to come on to the property again. He said that Mr Reid had impressed him 'as a man who would not take such a threat lying down: the speed with which he reacted on learning that permanent housing was going up persuades me that if the defendant had made such a statement, Mr Reid would have acted with equal speed to emphasise his own view of the nature of the defendant's occupation'.

Counsel for the appellant has challenged his Honour's findings and conclusions on that aspect of the case, but we were not given any material or basis upon which we could interfere with his Honour's judgment in this regard. It is unnecessary to refer to authorities on the circumstances in which an appeal court will review the findings of a trial Judge based on his observation of witnesses who have given evidence before him. This is such a case. An appellant undertaking the task has an enormous hurdle to overcome. This is a point which has been emphasised again and again in authorities in all jurisdictions. In our opinion there is simply no basis for the view that his Honour was in any way wrong in coming to the conclusion which he did about the evidence. He accepted Mr Reid as a witness whose evidence was reliable. He rejected the defendant's evidence. The determination of the appeal must be approached on the basis of the evidence accepted by his Honour.

We return to what is called the first period, i.e. the period of 12 years and more after Sophia's death. Whether the evidence given by Mr Reid as to his belief about his father having given permission is admissible or not, Mr Reid and the appellant had their conversation after Mr Reid's father's death in 1968. He and the appellant discussed whether or not the Reids would object to the continued occupation by the appellant of the land. Mr Reid said that he had no objection so long as no permanent structures were erected. Permanent structures were erected in the early 1990's so this case was instituted. It seems to us that Mr Reid discussed the matter with the appellant on the basis that the appellant was a licensee of the land and had always been a licensee of the land, as had members of his family. The appellant accepted this as the basis of their conversation. Certainly nothing was said by him which would indicate in any way that by that lime he and members of his family had acquired the possessory title which is now sought. We therefore reject the submission based on what was described as the first period.

The submission in relation to the second period must also be rejected, because the land had been occupied down to the time of the hearing before his Honour pursuant to the licence agreement agreed upon between Mr Reid and the appellant in their 1968 conversation at Pago Pago. Again the possession was not adverse. It was with the licence and consent of the owners.

Counsel for the appellant relied upon a number of indications relied upon, we think, for the purposes of establishing the ouster of the Mr Reid's title. They were indications said to be consistent only with ownership of the land. There are two series of these referred to in the written submissions. The first matter in the first series is that the appellant and his family planted the land with coconut, banana and taro. We would not regard that as consistent only with ownership. It is equally consistent with the occupation by the appellant as a licensee. The second is that the only persons who remained on the land were the appellant's aunt, his grandmother, his father and the appellant himself. This too is as consistent with a licence as it is with ownership.

A matter of more moment and dealt with by his Honour, who was concerned about it, was the fact that the appellant's grandmother, Lusia, was buried on the land in 1968 as was another member of the family. No permission was sought to bury relatives on the land. There is a real question as to whether the Reids knew that this had happened. If they did not, it does not seem to us that the burials could have the overtness required before possessory title would be found to exist. In any event the burials are but one factor. They would need to outweigh all others, particularly the agreement to which we have referred, before they could have significance for the outcome of the case.

The final matters relied upon were the appellant's denial of permission from Mr Reid's father to occupy the land. It is a matter with which we have already dealt. It seems to us the evidence not having been objected to, was admissible, but if not, the basis on which the parties had their conversation was clearly that the appellant's occupation had always been pursuant to the consent or licence of Mr Reid's father.

There is then another matter of some significance and that is the reclamation of the land which began in 1970. It is said that no one stopped the appellant from carrying out the reclamation work. But the land was being used for plantation and the reclamation work itself would increase the area available for this purpose. Again it is a factor as are the burials. But we do not regard it as so significant as to overcome the strength of Mr Reid's case.

Then there is a similar but rather longer list of factors relied upon in relation to the second period. There is a further burial. That has the significance to which we have referred, but the other matters are not in our opinion such as to be consistent only with ownership. They are equally consistent with consent or a licence agreement.

We think that the matters with which we have dealt have covered the four matters raised in the submissions made by counsel for the appellant. Each submission is rejected. For the reasons given, the appeal is dismissed.

The orders of the Court are:

1. The appeal be dismissed.

2. The appellant pay to the respondent his costs of the appeal assessed in the sum of $500.

3. The application made by the respondent for the lifting of the suspension of the orders made by the Supreme Court on 23 August 1995 be remitted to the Supreme Court.

Solicitors:
Toleafoa R.S.Toailoa, Apia, for Appellant
Apa & Enari, Apia, for Respondents