Nose v Public Trustee [2010] WSCA 14 (24 September 2010)

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

CA 15/09

BETWEEN:

ULUGIA LAUFILI NOSE,
Samoan Matai of Tulaele
Appellant

AND:

THE PUBLIC TRUSTEE,
a statutory body established pursuant to the Public Trust Office Act 1975
as the Executor of the estate of TAPENI IOELU, deceased.
Respondent

Coram: Honourable Justice Baragwanath
Honourable Justice Slicer
Honourable Justice Fisher

Counsel: M G Latu for the appellant
F Vaai-Hoglund for respondent

Hearing: 22 September, 2010
Judgment: 24 September, 2010

JUDGMENT OF THE COURT

Introduction

[1] The Appellant appeals against a decision of the Chief Justice given in the Supreme Court on 17 July 2009. By that decision the Court ordered the Appellant to vacate land held in the name of the Respondent as executor of the estate of Tapeni Ioelu, deceased. The Court dismissed the Appellant's defence of adverse possession.

Factual Background

[2] Having heard the evidence of Uelese for the Respondent and the evidence of the Appellant the Chief Justice decided as a matter of credibility that he preferred the evidence of Uelese. On that basis he found the essential facts to be as follows.

[3] Rev Tapeni Ioelu was the owner of a 2½ acre block of land at Tulaele near Apia. Various members of his extended family shared occupation of that land during Tapeni's lifetime. Although the Appellant was not related to him, Tapeni took him in and treated him like a son.

[4] When Tapeni died on 10 December 1978 he left his widow, Katerina, a life interest with the remainder to the matai of his family and three of his nephews, all of whom lived in American Samoa. The Appellant did not inherit any interest in the land. The beneficiaries authorised their relative, Uelese, to look after the land on their behalf, subject to the life interest of Katerina.

[5] When Katerina died in November 1995, the then qualified beneficiaries (children of the original beneficiaries) asked Uelese to continue to look after the disputed land on their behalf given their absence overseas.

[6] With the agreement of Uelese, various relatives and the Appellant shared occupation of the land for about a year from the end of 1996 or early 1997 to about the end of 1997 or early 1998. At that point, in order to preserve harmony within the family, all others vacated the house leaving the Appellant in sole occupation.

[7] Uelese allowed the Appellant to live on in the property on stated conditions until 2005. Disputes then arose due to the Appellant's non-compliance with those conditions. Uelese demanded that the Appellant leave the disputed land. When the Appellant failed to do so he instructed solicitors who arranged for probate of Tapeni's estate to be granted to the Public Trustee on 8 August 2007. On 11 June 2008 the Public Trustee brought the present proceedings seeking recovery of the disputed land from the Appellant and his family.

Proceedings in the Supreme Court

[8] In the Supreme Court it was common ground that the sole basis upon which the Appellant could resist the Respondent's application for possession would be adverse possession. The Chief Justice found against the Appellant on essentially four grounds.

[9] First, the Chief Justice found on the facts that the defendant first entered into occupation between November 1996 and the beginning of 1997. Respondent commenced the present action for possession on 11 June 2008. It followed that the Appellant and his family were not in possession for twelve years or more at the time that the proceedings were brought.

[10] Secondly, the Chief Justice found that part of the relevant period could not have qualified as adverse possession because the Appellant's possession was not exclusive. For part of the relevant period the property was also occupied by Sumani and his family.

[11] Thirdly, for at least part of the relevant period (when the rightful owners were still clearly identified and alive and capable of giving authority to Uelese) the Appellant was in occupation pursuant to a licence granted by the true owners. The Chief Justice found that the Appellant had sought and obtained permission for possession from Uelese. Uelese had the delegated authority to consent to the Appellant's occupation.

[12] Fourthly the fact that the Appellant had sought and obtained permission from Uelese indicated a lack of the requisite animus possidendi that is the intention to possess to the inclusion of all others including the true owners.

[13] The Chief Justice therefore found for the Respondent and granted an order for possession.

The Appeal

[14] Pursuant to s 9(2) of the Limitation A75 1975 the Respondent's application for possession would be statute barred if the true owner's right of action for possession had accrued more than twelve yearore the commencement of proceedings. The relevant right of t of action was to seek possession from the Appellant while the Appellant was in adverse possession. Adverse possession meant a situation in which the Appellant had exclusive possession of the property without the consent of the true owner. To have such possession the Appellant would need to have had both physical possession and the intention to possess to the exclusion of all others including the true owner: Aliifale Fiso v Reid [1996] WSCA3; J A Pye (Oxford) Ltd v Graham [2002] UKHL 30; and Remnarace v Lutchman [2001] UKPC 25; [2001] 1 WLR 1651. The onus of proof in that regard lay on the Appellant as the party claiming adverse possession: Powell v McFarlane (1977) 38 P & CR 452, at p 472; and Tofaeono v Taulima [2007] WSSC 2.

[15] In this Court Mr Latu for the appellant did not challenge those propositions of law. His first ground of appeal was a challenge to the Chief Justice's credibility finding in which he preferred the evidence of Uelese to the effect that, contrary to the Appellant's own evidence, the Appellant had sought and obtained Uelese's permission to occupy.

[16] An appellant challenging a finding of credibility in the Court below faces formidable difficulties. In the absence of exceptional circumstances appellate courts will defer to the trial judge's advantage in seeing and hearing the actual witnesses.

[17] In the present case Mr Latu sought to challenge the Chief Justice's finding on the permission point by referring to the date on which the appellant discovered that he had not received an interest in the property under Tapeni Ioelu's will. We accept that the appellant did not learn of the content of the will until 2005.

[18] However we do not see any inconsistency between that evidence and Uelese's evidence that at or about the end of 1996 the appellant had sought and obtained Uelese's permission to occupy. At that time the appellant had no reason to assume that he would inherit all or part of the property. The deceased was not his father. Even if he had hoped to inherit an interest in the property, he had no reason to assume that the members of the deceased's family would be disinherited. Nor did he have reason to assume that those family members who might share the property with him would agree to his sole occupation of it. Uelese had been put in charge of the property. The appellant had every reason to ask his permission to occupy.

[19] Overriding those details is the fact that both witnesses gave evidence before the Chief Justice. He decided unequivocally that he believed one and disbelieved the other. It is not for us to interfere on appeal.

[20] That being so, it follows that the Chief Justice's third and fourth grounds for rejecting the adverse possession defence must succeed.

[21] That makes it unnecessary for us to embark on the other grounds for appeal and in particular the date upon which the appellant first moved onto the property. It also makes it unnecessary to consider the appellant's application to adduce fresh evidence on that topic.

Conclusion

[22] The appeal is dismissed with costs to the respondent in the sum of $4,000.

Honourable Justice Baragwanath
Honourable Justice Slicer
Honourable Justice Fisher