Jennings v Onesemo [2000] WSSC 26 (9 August 2000)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

WALLACE JENNINGS
Plaintiff

AND:

IOANE ONESEMO and
ALATAUA ONESEMO
Defendants

Counsel: Mr T.K. Enari for the Plaintiffs
Mr H. Schuster for the Defendants

Hearing Dates: 30 June 2000
Date of Decision: 9 August 2000

REASONS FOR JUDGMENT OF WILSON J

In this action there is a claim by the plaintiff, the owner of a little more than two roods of freehold (European) land at Tufuiopa (hereinafter called "the disputed land"), for an order evicting therefrom the defendants, who have occupied the disputed land since 1975 and who, not knowing of the plaintiff’s ownership of the disputed land, built thereon a house which they have lived in ever since. The defendants defend the claim upon the basis that they have acquired title by way of what the law calls adverse possession and, by virtue of section 9(2) of the Limitation Act 1975, the plaintiff is precluded from bringing his action.

It is unnecessary for me to trace the full history of this litigation other than to note that the original action proceeded to a judgment in favour of the plaintiff ‘in default of appearance by the defendants (or their counsel)’ and following an adjournment for formal proof. Following the entry of that judgment on 23 December 1999 and the making of ancillary orders, including inter alia an order for the defendants to vacate the disputed land, an application was made for an order to set aside that decision. That application came on for hearing before me on Wednesday, 21 June 2000, it was adjourned until Friday 23 June, when, following what I perceived to be the adoption of a responsible and realistic attitude by all parties and their counsel, I made orders inter alia that the said judgment of this Court entered on 23 December 1999 be set aside and that an expedited hearing of the original action be granted, with liberty to the parties to amend the pleadings, if necessary.

The evidence for the defendants, who became de facto duces litis at the trial of this action, comprised the affidavits of the first defendant sworn on 30 June 2000 (exhibit P1) and his oral evidence.

The evidence for the plaintiff comprised the affidavit of the plaintiff sworn on 3 October 1996 (exhibit D1), his oral evidence, and the oral evidence of his late father’s sister, Eliza Annie Thompson.

There was little in dispute between the parties at the end of the evidence in this trial. The main dispute concerned matters of law. I can therefore proceed immediately to announce my findings of fact.

FINDINGS OF FACT

I find as follows:

1.

1.1 In the 1950’s one Logo Pakau, a Tokelauan relative of the first defendant’s grandfather, lived on the disputed land.

1.2 In 1975 one Ariu Lelilio (of Vavau) and his Tokelauan wife called Alofaaga, who had been living on the disputed land, vacated it.

1.3 Thereupon (in 1975) the defendants and their family moved to reside on the disputed land and, to that end, built a house thereon.
1.4 The defendants at that time did not ask anyone for permission to occupy the disputed land, and they did not seek anyone’s permission after they had commenced occupation.
1.5 The defendants and their family have occupied the disputed land continuously from 1975 up until the present.
1.6 In about the 1990’s the plaintiff visited the first defendant in Samoa bringing with him a lawyer’s letter (annexure "C" to exhibit D1) and claimed that he was descended from the registered owner of the disputed land and he told the defendants that they should move off the land.
1.7 The first defendant indicated to the plaintiff that the defendants and their family would not move off the land and informed him that they had been living on the land for 15 years.
1.8 After consulting their then lawyers, the late Luagalau Levaula Kamu and his law partner and wife, Maiava Visekota, an offer to purchase the disputed land ‘subject to negotiations’ was made on the defendants’ behalf on 13 April 1993, but no contract was concluded and no sale eventuated. An indication of a desire to purchase the disputed land was given on the defendant’s behalf on 13 May 1994, but no contract of sale and purchase followed.
1.9 These proceedings were commenced on or about 16 October 1995.
1.10 Since the defendants and their family commenced to occupy the disputed land in 1975 the defendants and their family have not allowed anyone else to occupy or reside on the disputed land.
1.11 The house that was built on the disputed land by the defendants is a permanent European-style dwelling made of concrete and timber.
1.12 No-one prevented the defendants or attempted to prevent the defendants from building the permanent dwelling on the disputed land.
1.13 The defendants and their family have used the disputed land exclusively throughout the period 1975 up until the present and have resisted efforts to move them off the disputed land.

2.

2.1 The plaintiff is, and has since 9 November 1990, been the duly registered administrator of the estate of his late grandfather, Alexander Eli Jennings deceased, who died in or about 1956.

2.2 Part of the estate of the deceased consists of the disputed land which was registered in the name of the deceased on 18 September 1933 but which was transmitted into the name of the plaintiff as Administrator of the estate of the deceased on 23 January 1991.

2.3 The disputed land is freehold (European) land and is all of the land registered in Volume 2 Folio 22 of the Land Register of Western Samoa as the same is more particularly delineated on Plan 3893 deposited in the Office of the Director of Lands at Apia.

2.4 Notwithstanding the plaintiff’s pleading in paragraph 3 of the Statement of Claim, no permission or consent was given by any of the "heirs and relatives" of the deceased to the defendants to permit them to reside on the disputed land.

2.5 Since 1990 the plaintiff has at various times requested or demanded the defendants to vacate the disputed, but they have refused to do so.

2.6 The family of the deceased knew about the disputed land but they did not "come and check a lot of times" on the land between 1975 and 1990, or at all.

2.7 In 1970, (i.e. before 1975) Alofaaga was given permission by Eliza Thompson, the plaintiff’s aunt and the daughter of Alexander Eli Jennings deceased, to live on the disputed land to enable Alofaaga’s children to be able to attend school at Maluafou. Alofaaga performed a sort of caretaker role during her occupancy of the disputed land.

2.8 In about 1975 (the year in which I find, on the evidence, Alofaaga vacated the disputed land and went to New Zealand) possession of the disputed land was discontinued and, as findings 1.2 to 1.5 indicate, the defendants came into possession of the disputed land and have been, save and except for any question of acceptance (to be referred to post), in possession ever since.

2.9 As Eliza Thompson explained, she discovered that possession of the disputed land had been discontinued by Alofaaga when her cousin, Dick Carruthers, told her (in about 1975) "that he didn’t see Alofaaga there", and she was then told by a relative called Helg that "somebody (else) is over there" (referring to the defendant having moved in) and "they are building a house or something."

THE LAW

The law regarding adverse possession in Samoa has been recently laid down in a decision of the present Chief Justice of Samoa in Nelson Mackenzie Ltd. v Sale Lamosi unreported decision of Sapolu CJ dated 5 July 1995 and in an authoritative decision of the Court of Appeal of Samoa of Atiifale Fiso v Peter Eugene Reid, Junior, unreported decision dated 29 August 1996.

As Sheppard J put it, in delivering the judgment of the Court in Atiifale Fiso v Peter Eugene Reid, Junior, supra at page 3 and 4:

"The relevant provisions of the land 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."
    

As will appear later in these Reasons, other provisions of the Limitation Act are relevant. I refer to sections 23(1) and 24 which provide as follows:

"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 of principal or interest,

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

Without intending to depart from the principles set out or referred to in those cases and in those statutory provisions, I extract some of them and set them out hereunder in conjunction with the major common law principles relating to adverse possession:

1. The right of a dispossessed owner to recover his or her land is limited by Statute (here the Limitation Act 1975).
2. The effect of the limitation period is to allow an adverse possessor to acquire title good against the whole world to the land in question.
3. The rights of the true owner are extinguished by adverse possession for more than the statutory period..

The policy underlying adverse possession is to deny a remedy to true owners who fail to exercise their rights within a reasonable period of time [see Nelson Mackenzie Ltd. v Sale Lamosi supra at page 12].

4. In order to constitute title by adverse possession, possession relied on must be for the full period and must be ‘actual, open and manifest, exclusive, and continuous’ [McDonnell v Giblin [1904] NZGazLawRp 25; (1904) 23 NZLR 660 per Cooper J at pages 662 to 663, and Nelson Mackenzie Ltd. v Sale Lamosi supra at pages 15 to 16 and Atiifale Fiso’s case at p.4].
5. Possession which will cause time to run under the limitation limit is ‘open, not secret, peaceful, not by force, and adverse, not by consent of the owner, coupled with the requisite intent’ [Mulcahy v Curramore Pty. Ltd. (1974) 2 NSW LR 464 per Bowen C.J. in Equity at p.47 and Atiifale Fiso’s case at p.5].
6. Possession has two elements: (1) factual possession, and (2) the intention to possess.
7. Factual possession means an appropriate degree of physical control.
8. The possessor must have been dealing with the land in the way an occupying owner might have been expected to deal with it and show that no-one else has done so. [Powell v McFarlane (1977) 38 P & CR 452 (Ch) per Slade J.at p.471].
9. Whether or not the owner realises that dispossession has taken place is irrelevant.
10. The issue must be determined according to the volume of the land and the manner in which land of that nature is commonly used or enjoyed. This is a question of fact. The enclosure of land by a fence is strong evidence of adverse possession. The construction of a house on land is very strong evidence of adverse possession.
11. The person claiming adverse possession must intend not merely to trespass but to use the land as his or her own and to exclude all others, including the true owner.

[Buckinghamshire County Council v Moran (1989) 2 All ER 225 at page 236].

12. The necessary intention is an intention to possess to the exclusion of all others rather than an intention to own [Buckinghamshire County Council v Moran supra at p.238; and Nelson Mackenzie Ltd. v Sale Lamosi supra at p.16. The enclosure of land will ordinarily show the requisite intention. [George Wimpey & Co. Ltd. v Sohn (1967) Ch 487 at p.511].
    

APPLYING THE LAW TO THE FACTS

In my judgment, there was discontinuance of possession in 1975 when the estate voluntarily relinquished possession (when Alofaaga left for New Zealand) and other persons (the defendants) came into possession. They took factual possession and, by constructing a house on the disputed land, they exercised a significant degree of physical control. The defendants, by constructing a house on the disputed land, dealt with the disputed land in the way an occupying owner might have been expected to deal with it and to show that no-one else had done so. It is hard to imagine stronger evidence of adverse possession than the construction of a house on the disputed land. The defendants intended more than to trespass; they used the land for their own home and excluded all others from it, including the plaintiff (in 1990).

Hence there was actual possession from 1975 until at least 1990, a period of 15 years (more than 12 years). It appears to me that the statute clearly applies.

For all these reasons and but for a defence submission yet to be referred to, I am minded to hold that the plaintiff’s claim became in 1987 (and has ever since been) statute-barred [the Limitation Act, s.9.]

The defendants have discharged the burden of proving on the balance of probabilities that they have been in adverse possession for 12 years or more since 1975. That was the year when the right of action accrued to the estate of the late Eli Alexander Jennings, through which estate the plaintiff claims. The estate effectively discontinued possession in 1975 [Western Samoa Trust Estates Corporation v Faisaovale (Leniu) (1970-1979) WSLR 138, per Nicholson CJ at p.141].

A DEFENCE SUBMISSION

A somewhat unusual situation arose as a consequence of the defendants, through their lawyers, having offered (in 1993) to purchase the disputed land from the plaintiff and having indicated a desire to purchase the disputed land (in 1994). They acted in that way when ignorant of, or not fully aware of, their entitlement to title by adverse possession. The offer was never accepted and no contract of sale and purchase was entered into.

Mr Enari submitted that the defendants’ rights to claim title by adverse possession were "nullified" when they made that offer, thereby indicating that the disputed land "ceased to be in adverse possession". He also submitted that the making of the offer "curtailed" any adverse possession.

Mr Enari did not submit (and it was not pleaded) that, assuming the fact that an offer to purchase was made (in 1993), the defendants were thereby estopped from denying the plaintiff’s claim to have them evicted from the subject land and from claiming title by adverse possession.

No authority was cited by Mr Enari in support of these submissions of "nullification" and "curtailment", and he was not able to identify a ground of defence.

My own researches incidental to reaching a decision in this case revealed a decision of the Court of Appeal in England in Edginton v Clark (1964) 1 QB 367, in which acknowledgment (or confirmation) was held to be a defence to a claim that a title to land had been acquired by adverse possession. It was not expressed as estoppel, but there are, I think, some parallels. The notion of acknowledgment arose from statutory provisions in England almost identical with the Limitation Act of Samoa.

That was a case, as the head-note revealed, in which the plaintiff occupied a vacant bombed site as a squatter from 1947 until September 1961 when the defendant entered on the site as weekly tenants of the freeholders and dispossessed him. He brought an action against them for trespass, claiming that he had acquired a title to the site by virtue of his adverse possession for over 12 years (which was uncontested). In 1954, but 7 years after he had taken adverse possession, the plaintiff wrote two letters to the agent of the freeholders offering to purchase the site, and the defendants, who joined the freeholders as third parties, submitted that these letters amounted to an acknowledgment of the freeholders’ title so as to bar the acquisition by the plaintiff of a title to the site by adverse possession. The County Court judge upheld their submission and dismissed the plaintiff’s action.

The Court of Appeal held that the plaintiff’s appeal failed upon the ground that, even though the intended purchaser did not, when making an offer to purchase the land, acknowledge, in so many words, that the vendor had a marketable title to it, he did acknowledge that, as between himself and the vendor, the vendor had the better title, and that that was all that was required.

That is a persuasive authority, but the present case is to be distinguished on its facts from Edginton v Clark supra. In that case the letters were written during the limitation period and before the plaintiff could have claimed to have acquired a title to the site by virtue of his adverse possession for over the statutory period. In the present case the letters were written after the limitation period had expired (in 1987) and after the defendant had become entitled to a title by adverse possession.

In my judgment, section 9 of the Limitation Act bars this action, and it has been barred since 1987. Sections 23 and 24 only have application when there is an acknowledgment or part payment between the time when the right of action to recover land has accrued and the expiration of the limitation period. To hold otherwise would be to defeat the purpose of the law of adverse possession, which denies a remedy to true owners who fail to exercise their rights within a reasonable period of time (in the case of Samoa, within 12 years) [see para 3 of the principles - supra].

In my judgment, the estate discontinued its possession of the disputed land for a period in excess of 12 years prior to the time when the letters were sent (1993 and 1994) and well before the commencement of these proceedings. The Limitation Act operates to prevent the plaintiff bringing any action to recover the disputed land and the declarations and other relief sought in the statement of claim will not be made or granted. I so conclude notwithstanding the so-called defence of acknowledgment.

The plaintiff’s action is, accordingly, dismissed. It is ordered that the plaintiff do transfer to the defendants the estate’s right and interest in the disputed land. I reserve liberty to the parties to apply to this Court upon giving 48 hours notice. It is ordered that the plaintiff pay to the defendants their costs of this action.

I will hear counsel as to the quantum of the costs so ordered.

JUSTICE WILSON