Paese v Public Trustee [2013] WSCA 8 (15 November 2013)

COURT OF APPEAL OF SAMOA

Tuiletufuga v The Public Trustee [2013] WSCA 08

Case name: Tuiletufuga v Public Trustee

Citation: [2013] WSCA 08

Decision date: 15 November 2013

Parties: FIAPAPALAGI PAESE TUILETUFUGA (Appellant) a housewife at Alamagoto and THE PUBLIC TRUSTEE (Respondent) as Administrator of the Estate of Jesse Schwenke (Deceased)

Hearing date(s): 12 November 2013

File number(s): CA11/13

Jurisdiction: Civil

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

On appeal from: Public Trustee v Fiapapalagi Paese (Supreme Court matter)

Order:
Representation:
K Kruse for Appellant
A Roma for Respondent

Catchwords:

Words and phrases:
Legislation cited:
Limitation Act 1975
Limitation Amendment Act 2012

Cases cited:
Modern Law of Real Property 17^th ed, 2006
Newington v Windeyer (1985) 3 NSWLR 555

Summary of decision:

IN THE COURT OF APPEAL OF SAMOA

HELD AT MULINUU

FILE NO: C.A11/13

BETWEEN

FIAPAPALAGI PAESE TUILETUFUGA, housewife of Alamagoto

Appellant

A N D:

THE PUBLIC TRUSTEE, as Administrator of the Estate of Jesse Schwenke (Deceased)

Respondent

Coram: Honourable Justice Fisher

Honourable Justice Hammond

Honourable Justice Blanchard

Counsel: K Kruse 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 given on 5 April 2013 dismissing the appellant’s application for a declaration. The declaration she sought was that she had acquired title to land at Alamagoto in Apia through adverse possession.
   

Factual Background

2. The disputed land forms part of Lot 145 on Plan 7483 of the Land Registry at Apia. Lot 145 was owned by, and registered in the name of, Jesse Schwenke. Jesse Schwenke having died, the estate is administered by the Public Trustee.
3. Lot 144 was the land next door. It was originally owned by John Schwenke. Lot 144 was occupied by his daughter, Emma Schwenke, and her husband Tuiletufuga Papalii. Emma arranged for her daughter, Tuiletufuga Lafo, and her husband Anima Toa Lama, to live next door on Lot 145. The arrangement was made in the mistaken belief that Lot 145 also belonged to Emma’s father, John Schwenke.
4. The appellant was the daughter of Tuiletufuga Lafo and Anima Toa Lama. She was born on Lot 145 and, with a short break of only two years at one point, has resided there all her life.
5. When Jesse Schwenke died the Public Trustee realised that the appellant and her family were occupying part of land registered in the name of Jesse Schwenke. When the Public Trustee pointed this out to the appellant, she brought the present proceedings. In her proceedings the appellant sought a declaration that adverse possession entitled her to that part of Lot 145 that had been occupied by her and her family since the end of the Second World War.

Supreme Court Proceedings

6. In the Supreme Court it was not disputed that the appellant and her family had been in actual, open, manifest and exclusive possession of the disputed land for well in excess of the former limitation period of 12 years. Nor was it disputed that prior to an amendment to the Limitation Act 1975 in 2012, the appellant would have acquired title by adverse possession.
7. As Nelson J pointed out, the 2012 amendment to the Limitation Act effectively removed adverse possession as a basis for acquiring title to land in Samoa. Although there was an exception for a certain class of proceedings commenced and served before the amendment came into operation on 26 January 2012, the appellant could not bring her case within that exception. While expressing sympathy for the appellant, the Judge found that her claim had to fail. The sole basis for the claim was adverse possession. Adverse possession is no longer a basis for acquiring land.

The Appeal

8. In this Court Ms Kruse advanced essentially one ground of appeal. The contention is that the 2012 amendment to s 9 of the Limitation Act 1975, and the savings provision in s 3 of the Limitation Amendment Act 2012, are confined to the use of adverse possession as a shield. The argument is that where, as here, the party in possession seeks to rely upon adverse possession as a sword, there is nothing in those statutory provisions to prevent him or her from doing so.

Section 9 of the Act as amended

9. Until 2012, ss 9, 10 and 14 of the Limitation Act 1975 materially provided:

s.9 Limitations 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.

s.10 Accrual of right of action in case of present interests in land –

(1) Where the person bringing an action to recover land, or some person through whom he or she claims, has been in possession thereof, and has while entitled thereto been dispossessed or discontinued his or her possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance.

s.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 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.

10. It will be seen that under the legislation as it then stood, the Public Trustee would have been precluded from recovering the disputed land. The appellant had been in adverse possession for several decades. It followed that the title-holder’s right of action to recover the land would have accrued several decades ago (s10(1)) and it would have been too late to bring any action to recover the land (s 9(2)).
11. All of that changed in 2012. Section 5 of the Limitation Amendment Act 2012 substituted the following for the original s 9:

9. Actions to recover land or register title – (1) Subject to section 3(1) of the Limitation Amendment Act 2012 and to this Part, from the date the Limitation Amendment Act 2012 commenced:

(a) no right, title or interest in or to land adverse to or in derogation of the title of the registered owner shall be acquired by any length of possession by virtue of any adverse possession relating to real property; and

(b) no right, title or interest in or to land adverse to or in derogation of the title of the registered owner shall be registered by virtue of a claim to title by adverse possession; and

(c) no title of any such registered owner shall be extinguished by the operation of any statute of limitation.

(2) Subject to section 3(1) of the Limitation Amendment Act 2012 and to this Part, from the date of the Limitation Amendment Act 2012 commenced:

(a) no right, title or interest in or to land shall be acquired by adverse possession; and

(b) no right, title or interest in or to land shall be registered by virtue of a claim to title by adverse possession; and

(c) no party shall raise adverse possession to defend or resist any claim by a registered owner to –

(i) recover land; or

(ii) evict a party; or

(iii) redefine boundaries of land.

12. The 2012 Amendment came into force on 26 January 2012. It will be seen that from that date no right, title or interest could be acquired based on adverse possession (s 9(1)(a)).
13. Interestingly, s 9(1)(a) is addressed to acquisition of an interest after the Act came into force. It says nothing as to the fate of any interest that might have been acquired already before the Act came into force. Section 9 does not in terms abrogate any existing right, title or interest which might have been acquired prior to the Limitation Amendment Act 2012. By the time the 2012 amendment came into force, the appellant’s adverse possession had already resulted in the creation of a form of interest in the land. The interest she had acquired has been described as a “real though tortious interest” (G C Cheshire and E H Burn Modern Law of Real Property 17^th ed, 2006 (E H Burn and J Cartwright) OUP p 29). As has been said, “...[A]n estate gained by wrong is nevertheless an estate in fee simple...’. Newington v Windeyer (1985) 3 NSWLR 555 at 563 (CA) per McHugh JA.
14. It follows that, for a long time now, the appellant has been entitled to a declaration that she has an interest in the land based upon her adverse possession. The 2012 amendment did not change that.
15. However the matter does not end there. In practical terms the new s 9 placed two obstacles in the appellant’s path. The first is that pursuant to s 9(1) (b) of the current Act, “no right, title or interest in or to land adverse to or in derogation of the title of the registered owner shall be registered by virtue of a claim to title by adverse possession”. The result is that since the 2012 amendment the appellant has been prevented from perfecting her interest in the land through registration.
16. The second obstacle she faces is that pursuant to s 9(2) (c) of the current Act “[n]o party shall raise adverse possession to defend or resist any claim by a registered owner to recover land.” So if at any time the Public Trustee were to bring proceedings to evict the appellant, she would be unable to resist eviction by calling on the interest she had gained through adverse possession.

The saving provision in s 3 of the Amendment Act

17. The alternative is to consider a transitional provision in the 2012 amendment. When it amended the law Parliament created an exception to s 9 to cater for proceedings that were already under way by 26 January 2012. Section 3 of the Amendment Act provides:

3. Application of the Act – (1) This Act does not apply t6o the following types of actions that were filed with the Supreme Court, served upon the other party or parties and defended or resisted by the defendant party on the grounds of adverse possession before or on the day this Act commenced:

(a) actions to recover land;

(b) actions to evict a party from the land;

(c) actions to redefine boundaries of land.

(2) After section 14(3) of the Act, insert:

(4) This section applies only to the following types of actions that were filed with the Supreme Court, served upon the other party or parties and defended or resisted by the defendant party on the grounds of adverse possession before or on the day the Limitation Amendment Act 2912 commenced:

(a) actions to recover land;

(b) actions to evict a party from the land;

(c) actions to redefine boundaries of land.

18. Ms Kruse accepted that her case could not be brought within the express terms of s 3. Although the appellant had commenced and served proceedings seeking a declaration before 26 January 2012, she is unable to satisfy the express conditions for invoking s 3. In its express terms, s 3 applies only where the proceedings are “defended or resisted” on the grounds of adverse possession. Further, the proceedings must be ones brought to recover, evict or redefine boundaries.
19. As Ms Kruse accepted, the appellant’s proceedings sought to use adverse possession as a sword rather than the shield contemplated in s 3. The appellant was not using adverse possession as a defence to an action brought by the title-holder. Nor was the Public Trustee seeking to defend or resist the action on the ground of adverse possession.
20. Ms Kruse submitted that Parliament simply overlooked the possibility that adverse possession might have been relied upon in extant proceedings as a sword rather than a shield. We can see force in that submission. The inescapable result is, however, that Parliament did not include the sword exception in s 3.
21. Ms Kruse went on to submit that an intention to include adverse possession as a sword should be implied into s 3. We have some sympathy with this. If an exception was intended for existing proceedings, it is not easy to see why a distinction would be drawn between proceedings commenced by the title-holder and proceedings commenced by the possessor.
22. However there is a difference between inferring that Parliament intended a particular result without spelling it out and speculating that if Parliament had thought of an issue it might have responded to it in a particular way.
23. Fundamentally Parliament has chosen to remove adverse possession from the Samoan landscape. In doing so it must have realised that it was abrogating those proprietary interests that had already come into existence by adverse possession. It has created an exception in a limited class of case where proceedings were already in progress when the Act came into force. But the exception does not extend to proceedings of the type in which the appellant was involved. We are unable to create a further exception to cover a situation which was not considered or addressed. To do so would be legislation by this Court.

Conclusion

24. The appellant is currently occupying the property pursuant to an existing right to be there. However, she could never register her title and could be evicted at any time when the Public Trustee chooses to bring proceedings for that purpose. The nature of her existing interest in the property could be of significance if any claim were made against her for damages for trespass. But in practical terms it will not gain her the title that she now seeks.
25. The appeal is dismissed. Given the nature of the appellant’s existing interest in the property, there will be no order for costs in this Court.
    

Honourable Justice Fisher

Honourable Justice Hammond

Honourable Justice Blanchard