Siaosi v Atonio Pule [2013] WSCA 7 (15 November 2013)

COURT OF APPEAL OF SAMOA

Siaosi v Pule [2013] WSCA 07

Case name: Siaosi v Pule

Citation: [2013] WSCA 07

Decision date: 15 November 2013

Parties: TAGALOA SIAOSI of Vaitele, Samoa (Appellant) and AFIMUPO ATONIO PULE of Vaitele Samoa and currently of Anchorage, Alaska.

Hearing date(s): 11 November 2013

File number(s): CA10/13

Jurisdiction: Civil

Place of delivery: Mulinuu
Judge(s):
Justice Fisher
Justice Hammond
Justice Blanchard

On appeal from: (Supreme Court matter)

Order:
Representation:

S Wulf for Appellant

A Roma for Respondent

Catchwords:

Words and phrases:

Legislation cited:
Cases cited:
Public Trustee v Nose [2009] WSSC 70
Buckinghamshire County Council v Morgan [1990] Ch 623
Fiso v Reid [1996] WSCA 3
Smart v London Borough [2013] EWCA Civ 1375

Summary of decision:

IN THE COURT OF APPEAL OF SAMOA

HELD AT MULINUU

FILE NO: C.A10/13

BETWEEN

TAGALOA SIAOSI

Appellant

A N D:

AFIMUPO ATONIO PULE

Respondent

Coram: Honourable Justice Fisher

Honourable Justice Hammond

Honourable Justice Blanchard

Counsel: S Wulf for Appellant

A Roma for Respondent

Hearing: 11 November 2013

Judgment: 15 November 2013

JUDGMENT OF THE COURT

Introduction

1. This is an appeal from a decision of the Supreme Court. The decision upheld the respondent’s title as owner of Lot 3249/4902 at Vaitele and rejected the appellant’s counter-claim that he had acquired title through adverse possession.
   

Background

2. The disputed land was originally owned by the Western Samoa Trust Corporation. The Corporation leased the land to Matai’a Si’u and/or his wife Pelenatete Matai’a. As the lessees they moved onto the land taking the appellant with them as a member of the family. Matai’a Si’u was the appellant’s grandfather. The respondent was Pelenatete Matai’a’s daughter.
3. Matai’a Si’u died in 1981 and Pelenatete Matai’a in 1984. Before she died Pelenatete Matai’a persuaded the respondent to buy the disputed land from the Corporation. When she had paid the full purchase price the respondent was able to uplift the Deed of Conveyance and register it in the Samoa Land Registry on 25 June 1987.
4. There is a dispute as to arrangements once the respondent had acquired title to the property. The appellant says that he continued on in occupation pursuant to the lease which his parents had originally entered into with the Corporation; that he had no knowledge of the respondent’s purchase of the property; that he only became aware of the change of ownership in 2009 when surveyors came to the property at the respondent’s behest; and that he was not aware that the respondent wanted him to vacate the land until the respondent’s proceedings were served on him in late 2011.
5. The respondent says that when she completed the purchase of the property in 1987 she and her sister went to the property and discussed matters with the appellant. She says that she told him she had bought the land and asked him to continue to reside there and look after it for her until she wanted it.

Proceedings in the Supreme Court

6. In 2011 the respondent brought proceedings to evict the appellant in reliance on her registered title. The appellant counter-claimed in reliance upon adverse possession.
7. It was common ground that a fundamental change to the role of adverse possession in Samoa effected by the Limitation Amendment Act 2012 had no application to this case. The amendment had not come into effect by the time the present proceedings were issued.
8. In her decision the Judge noted that a claim of adverse possession could be negated by evidence that the occupier’s possession had continued with the consent of the owner. The presence or absence of consent on the respondent’s part turned on the question whether there had been a meeting at which consent was given in 1987 as the respondent alleged.
9. On that point the Judge noted many difficulties in the evidence of the appellant – the implausibility of his claim that he had never met the respondent given the close family relationship between the two; the implausibility of an account he gave over dealings with the Police over the land in 1987; the Judge’s acceptance of Iese Pouafe’s evidence that he had dealings with the appellant in 2009 requesting him to vacate the land; and the appellant’s failure to satisfactorily explain how he could have thought that he continued to hold the land pursuant to the lease from the Corporation when the land had been owned by the respondent since 1987 and he had paid no rent ever since.
10. Conversely the Judge accepted the evidence of the respondent and her sister over the consenting arrangement in 1987. She also accepted the further evidence of her sister that at a later point the appellant asked her to ask the respondent whether she would swap the disputed land for other land owned by the appellant further inland.
11. Given the factual finding on consent, the adverse possession defence failed. The appellant had been in possession with the consent of the legal owner.
12. The Judge went on to make the additional finding that the appellant lacked the requisite intention to possess to the exclusion of the respondent. He had failed to make any significant improvements to the land throughout his 41 years of occupation.

Consent from the respondent

13. The principal ground of appeal was directed to the Judge’s finding that adverse possession was negated by consent. Mr Wulf submitted that even on the assumption that the respondent had asked the appellant to continue living on the property and to look after it for her, there was no evidence that the appellant was content with that arrangement. Nor had he ever acknowledged that she was the true owner.
14. Adverse possession is negated if the occupier is occupying or using the land by the licence of the titled owner. As Sapolu CJ said in Public Trustee v Nose [2009] WSSC 70 at paras 48-49 “Possession is not normally adverse if it is enjoyed by a lawful title, or with the consent of the true owner”. In more detail:

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 titles.

per Slade LJ in Buckinghamshire County Council v Morgan [1990] Ch 623 at 343 or 232-233 followed in Fiso v Reid [1996] WSCA 3.

15. Nor is it any answer in law for the possessor to argue that he or she never accepted the offer of occupation on the terms proposed by the title-holder: Smart v London Borough [2013] EWCA Civ 1375. The point is that if the title-holder tells the possessor that occupation is consented to, and there is no rejection of the terms on which the occupation is offered, the owner has no reason for concluding that an action for possession must be commenced in order to stop time from running against the title-holder.
16. In the present case the Judge concluded that the appellant had been in possession pursuant to consent given. This was a question of fact. There were ample grounds for the Judge’s conclusion. In this Court Mr Wulf responsibly accepted that there was no basis upon which that finding could be sensibly challenged.
17. In short, consent negated the adverse possession upon which the respondent necessarily relied.

Intention to possess

18. That conclusion makes it strictly unnecessary to go further. We would simply add that even if the appellant had believed, as he says, that he continued on in possession pursuant to his rights as lessee, this would have been fatal to his case in any event. The intention to possess for adverse possession purposes must be an intention to possess as owner, that is to say to the exclusion of the continuing rights of the title-holder. Possession as a mere lessee would not qualify for that purpose.

Result

19. The appeal is dismissed.
20. The appellant must pay costs to the respondent in the sum of $5000.
    

Honourable Justice Fisher

Honourable Justice Hammond

Honourable Justice Blanchard