Jennings v Onesemo [2001] WSCA 1 (23 November 2001)

IN THE COURT OF APPEAL OF SAMOA
HELD AT APIA

BETWEEN

WALLACE JENNINGS
of Pago Pago, American Samoa, Businessman,
as Administrator of the Estate of
Alexander Eli Jennings
Appellant

AND

IOANE ONESEMO and ALATAUA ONESEMO
both of Tufuiopa, Married Couple
Respondents

Coram: The Hon. Sir Ian Barker, (presiding)
The Rt Hon. Sir Ian McKay
The Hon. Justice Robertson

Hearing: 21 November 2001

Counsel: T K Enari for Appellant
H J Schuster for Respondents

Judgement: 23 November 2001

JUDGEMENT OF THE COURT DELIVERED BY SIR IAN BARKER

This appeal from the judgement of Wilson J delivered on 9 August 2000 raises an unusual point of some difficulty relating to the law on acquisition of title by adverse possession. For the reasons set out in his judgement and which are not necessary to repeat, the Judge found that the respondents had acquired title to a half-acre of freehold land at Tufuiopa by virtue of adverse possession for a period of 12 years from 1975 to 1987 and beyond. He held that section 9(2) of the Limitation Act 1975 ("the Act") therefore precluded the appellant owner of the land from obtaining an order for eviction of the respondents.

The Judge correctly stated the legal tests required to establish adverse possession and applied them to the facts established by the evidence. There was no challenge to his findings of fact and his enunciation of the relevant legal principles. Counsel for the appellant submitted that the Judge had read too much into some of the evidence of a Mrs Thompson; counsel however acknowledged that the Judge was entitled to take the view he did of her testimony. Consequently, this Court accepts the findings of the Judge on the facts and on the legal requirements to establish adverse possession.

In summary, the evidence disclosed that, in 1975, the respondents and their family had moved onto the land and had built a house thereon. They did not seek anyone's permission at any time. They have occupied the land continuously since 1975. Some time in the early 1990's, the appellant visited the first respondent, bringing with him a letter dated 2 February 1990 from the appellant's lawyer in American Samoa. He claimed to be the descendant of the registered owner and told the respondents to move off the land. The letter required the respondents to give up the land. A transmission to the appellant as administrator of the estate of the original owner was registered in Samoan Land Register on 23 January 1991.

The first respondent told the appellant that he and his family had been living on the land for 15 years and would not leave. The respondents then consulted their lawyers in Apia who, on their behalf, on 13 April 1993 wrote to other solicitors in Apia who, by then, were acting for the appellant. Presumably, there had been some prior dialogue between the two firms of solicitors. The letter read:

We attach a copy of a valuation prepared recently for our clients.

We confirm their desire to purchase either the whole section or half of it at the value assessed. This offer is subject to negotiations and we would be pleased to hear from you in this regard.

The reply of the appellant's solicitors, dated 27 May 1993 read:

We refer to your letter of the 13" April 1993.

The offer by your clients to purchase land of the Jennings' Estate at Tufuiopa has been referred to our client the Trustee of the above estate.

Our instructions are that the estate land will not be sold.

We have been instructed to seek an indication from your clients when they will vacate the estate land.

After a delay of a year (unexplained in the evidence) the respondent's solicitors wrote again to the appellant's solicitors on 13 May 1994 thus:

We advise our clients wish to purchase the land they are presently residing on.

Would you seek instructions from your client as to whether they would accept an offer of $80,000?

Should you have any queries please do not hesitate to contact the writer.

There is no evidence that the offer contained in that letter was ever accepted After yet another year (and this delay was similarly unexplained), the appellant's solicitors wrote again to the respondents' solicitors on 24 April 1995:

Since we last wrote to you on the 27^th May 1993 we note that your clients have not made any move to vacate the estate land.

Unless the estate land is vacated within 21 days from the date of this letter our instructions are to file for eviction orders.

No further correspondence (if any existed) was placed before the Judge.

Proceedings for possession were issued by the appellant in the Supreme Court on 18 October 1995. The respondent's then solicitors (the same ones who had written the letters mentioned above) filed a defence on 8 December 1995. They did not plead any limitation point. The appellant's claim was heard by Puni J on 7 October 1996 on an undefended basis. That Judge did not give judgement on what was then a simple undefended matter for more than three years, i.e. on 23 December 1999. He gave judgement for the appellant. Although it is not relevant to the present appeal, this Court, as the ultimate Appeal Court for the country, would be failing in its duty if it did not say that a delay of three years in giving judgement on an uncomplicated and undefended application is simply unacceptable. We note that the Court file shows that Puni J had said that the judgement would be given within two weeks. We doubt whether such a simple matter merited a reserved decision. A two week delay could not be criticised: a three year delay was grossly unfair to both parties and brings the administration of justice into disrepute.

An application for rehearing was later made by fresh solicitors for the respondent, accompanied by affidavits which indicted a prima facie defence. Wilson J on 23 June 2000 vacated the earlier judgment and granted a rehearing. An amended defence was filed which pleaded s 9(2) of the Act. On 30 June 2000, Wilson J heard the case on a properly defended basis: he considered the appellant's affidavit, the oral evidence of the appellant and his aunt, Mrs Thompson, plus the first respondent's affidavit and oral evidence. As indicated earlier, the Judge found for the respondents holding that they had established title to the land by adverse possession and that s 9(2) of the Act barred the appellant's claim.

The Judge considered the letters quoted above which, in the submission of counsel for the appellant, "terminated" or "nullified" the adverse possession by reason of their expressed willingness to purchase the land. The Judge held, following Edginton v Clark [1964] 1 QB 367 that whilst the letters in this case, like the letters in Edginton, might have been construed as an acknowledgment by the person in possession of the superior role of the owner, the case did not avail the appellant. The Judge's reason was that, in Edginton, the letters were written during the statutory 12 year period required for adverse possession, and thus constituted an acknowledgment under the English equivalent of s 23 of the Act. The Judge considered that section 9(2) had barred an action for possession ever since 1987: because the appellant had done nothing to establish his claim during the 12 year period between 1975 and 1987, he could not avail himself of any s 23 acknowledgment made after 1987 such as might otherwise have had the effect of restarting the 12 year period.

The sole question in this appeal is whether the Judge was right in his treatment of the effect of the correspondence between the solicitors for the parties in 1993-5.

The relevant provisions of the land provisions of the Limitation Act 1975 are as follows:

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.)

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.

23. Fresh accrual of action on acknowledgment or part payment - (1) Where there has accrued any right of action to recover land or any right of a mortgagee of personal property to bring a foreclosure action in respect of the property; and

(a) The person in possession of the land or personal property acknowledges the title of the person to whom the right of action has accrued: or

(b) In the case of a foreclosure or other action by a mortgagee, the person in possession as aforesaid or the person liable for the mortgage debt makes any payment in respect thereof, whether or principal or interest,

the right shall be deemed to have accrued on and not before the date of the acknowledgment of the last payment.

24. Formal provisions as to acknowledgments and part payments - (1) Every such acknowledgment as aforesaid shall be in writing and signed by the person making the acknowledgment.

(2) Any such acknowledgment or payment as aforesaid may be made by the agent of the person by whom it is required to be made under section 23, and shall be made to the person, or to an agent of the person, whose title or claim is being acknowledged or, as the case may be, in respect of whose claim the payment is being made".

Section 9(2) is quite explicit. It bars an action by an owner to recover the land after 12 years of adverse possession by the squatter. Section 23(1) applies only "where there has accrued any right of action to recover land ..." No right to recover land could have accrued after 1987. Even assuming that, analogously with Edginton, the respondent's solicitors letters in 1993-5 constituted an acknowledgment under s 23 and 24, such acknowledgement was ineffectual for the purposes of terminating the right of the respondents to stay title in the land which they had gained by adverse possession. It does not matter that they had taken no steps to formalise their position by registration of ownership in the land registry.

In Colchester Borough Council v Tillson [1991] Ch. 448, it was held that there could have been no valid acknowledgment by the squatter under s 23 because the 12 years had expired. In a decision criticised by Professor McPhee in Limitation Periods (2^nd ed.) (1994), Ferris J. denied relief to the squatter on the basis of an estoppel by convention. Subsequent to the expiry of the 12 year period, the parties had executed a document whereby the squatter purported to take a lease from the owner. The squatter acknowledged that he had not gained any right or title through adverse possession. The commentator opines that the document was meaningless because by the time it was signed, the paper owner had ceased to be the owner by operation of law. We note that the earlier Court of Appeal decision in Edginton was not mentioned by the Judge.

We do not see this case as helping the appellant. Here, there was no concluded contract between the parties as there was in Colchester: there was only an offer from the respondents to the appellant which was not accepted. Clearly, the respondent's legal advice was quite erroneous. There was no pleading of estoppel by convention: we agree with the learned commentator that the Colchester decision gives rise to an undesirable method of circumventing the rule that the expiry of the 12 years extinguishes the paper owner's rights.

Accordingly, the judgment in the Court below is affirmed and the appeal dismissed.

The respondent are entitled to costs which we fix at ST$1000.00, plus disbursements as fixed by the Registrar.

Solicitors:
Apa & Enari, Apia, for Appellant
Fepulea'i Law Office, Apia, for Respondents