Devoe v Fesili [2001] WSSC 26 (20 September 2001)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

SULUFAIGA DEVOE
of 2/B Bass Road, Auckland, New Zealand, Police Officer
Plaintiff

AND

ANAULI POFITU FESILI
of Tanugamanono, Apia, Businessman
Defendant

Counsel: M Tuatagaloa for plaintiff
R Drake for defendant

Hearing: 11 September 2001
Judgment: 20 September 2001

JUDGMENT OF SAPOLU CJ

The evidence for the plaintiff which the Court accepts shows that the plaintiff and the defendant are adjoining landowners at Vaivase-uta. Both lands owned by the plaintiff and the defendant were initially comprised in the estate of the plaintiff’s deceased father. The plaintiff’s land is vacant whereas the defendant’s land has a two storey building on it. The land owned by the plaintiff was conveyed to him as his entitlement to his father’s estate and the land now owned by the defendant was conveyed to the plaintiff’s sister Mrs Nancy Macdonald. By deed of conveyance dated 26 March 1981 Mrs Macdonald sold and conveyed her land to the defendant and his wife. However the wife is not cited as a defendant in these proceedings. Nothing was raised about this matter and I need not say more about it.

According to the evidence of Mrs Macdonald, when she sold her land to the defendant and his wife it was undeveloped. There was no fence along the boundary with the plaintiff’s land. The land was not fenced. She also denied that she showed the defendant her land before it was sold to him and his wife as the whole transaction was handled by her then solicitor. The plaintiff’s evidence is that there was no fence along the boundary between his land and his sister’s land. There had been bananas and taros grown on his land but at the time of his father’s death in 1978 the land was no longer under cultivation. The evidence given by the defendant and his wife is that before they purchased Mrs Macdonald’s land she showed them her land. At the time there was a fence between Mrs Macdonald’s land and the plaintiff’s land and Mrs Macdonald pointed out to them that her land was within the fence. Sometime after they purchased the land they replaced the fence with the present existing fence along the same place the old fence used to be. They believed that was the correct boundary with the plaintiff’s land as Mrs Macdonald’s had painted out to them. I have carefully considered the conflicting evidence given for the plaintiff and for the defendant and I prefer the evidence for the plaintiff that there was no fence as alleged at the time the defendant and his wife purchased Mrs Macdonald’s land.

The problem with the existing fence erected by the defendant is that it encroaches onto the plaintiff’s vacant land by 0.4 metre at the front and by 3.7 metres at the back. In other words the whole fence is within the plaintiff’s land at various distances starting by 0.4 metre at the front and ending by 3.7 metres at the back. The defendant had also erected a two-storey building towards the back of his land which encroaches onto the plaintiff’s land by about 0.1 metre and a water tank which is totally on the plaintiff’s land by about 3.7 metres. Various attempts have been made between the plaintiff and the defendant since 1994 to try and resolve this matter without any success. Each party seems to be blaming the other for this failure. The Court also advised the parties during the hearing to try and settle this matter but to no avail.

Evidence was also given by the plaintiff that he hired a surveyor to identify the boundary between his vacant land and that of the defendant and to locate the boundary pegs. This was after the plaintiff was informed in New Zealand by his brother-in-law in Samoa that the defendant’s fence, two storey building and water tank appear to encroach onto the plaintiff’s land. The surveyor found only the peg at the front boundary between the plaintiff’s and the defendant’s land but found no peg at the back. Someone had obviously removed that peg.

There is no dispute that the defendant’s fence, two storey building and water tank do encroach onto the plaintiff’s land. The defendant does admit the encroachments. However, counsel for the defendant raised s.8 of the General Laws (No. 2) Ordinance 1932 as a defence. Section 8 provides:

“(1)Where in any action or other proceeding relating to land it appears to the Court that the defendant or any of his predecessors in title has, in the erection of a building or structure upon any land adjoining the land in question, encroached upon such last-mentioned land and it is provide to the satisfaction of the Court by or on behalf of the defendant that such encroachment was not intentional or did not arise from gross negligence then the Court instead of ordering the defendant to give up possession of the piece of land so encroached upon or to pay damages or instead of granting an injunction may give the defendant the right of retaining possession of the piece of land so built upon subject to the payment of such sum or sums of money and to such other conditions as the Court thinks just.

“(2) Any other made under this section may be registered under the Samoa Land Registration Order 1920 (NZ) and its amendments (italics mine)

Two matters should be noted now about s.8. The first is that the Samoa Land Registration Order 1920 (NZ) has been repealed and replaced by the Land Registration Act 1992/1993. The second is that s.8 is similar to though and not the same as ss.128 and 129 of the Property Law Act 1952 (NZ) which was pointed out by counsel for the plaintiff. Counsel for the defendant submitted that the encroachments by the defendant onto the plaintiffs land were either not intentional or did not arise from gross negligence in terms of s.8. On the evidence for the plaintiff which I accept, this submission cannot succeed. Furthermore, for the defendant to build his two store building which is a very expensive asset and his water tank on part of the plaintiff’s land without first ascertaining the correct boundary between his land and that of the plaintiff is gross negligence. As it appears from the letter of 29 November 1994 sent by the defendant to the then solicitor for the plaintiff, the defendant admits the encroachments onto the plaintiff’s land were completely his fault for not checking the boundary. As a very senior civil servant at the time one would have expected that the defendant is more than sufficiently intelligent to have been fully aware of the importance of checking the boundary first before erecting his fence and two storey building and constructing his water tank. It follows that on the evidence s.8 would not apply.

The defendant has also counterclaimed against the plaintiff for $160,000 on the basis that the defendant had lost a sale of his land for that amount because of a caveat the plaintiff had lodged against the defendant’s land. The defendant testified that a potential purchaser who was interested in purchasing his land refused to go ahead with the purchase when he learnt of the caveat lodged by the plaintiff. It is difficult to see from the evidence what loss the defendant had suffered from that sale not going through as he still retained his land and improvements thereon. It is not claimed that the defendant had lost a chance to sell his land and no evidence was adduced as to the value of such chance. Nor was it argued whether damages could be claimed for loss of chance. In any event, I am in serious doubt whether a purchase who is aware of the encroachments erected by the defendant on the plaintiff’s land would have been willing to purchase the defendant’s land and improvements thereon, given the potential threat of a suit by the plaintiff to remove those improvements, including the two storey building, from his land. The defendant could also have sued to remove the caveat in order for the sale to go ahead but that was not done. In my view, the counterclaim cannot succeed and should be dismissed. One would also understand the plaintiff’s expressed concern for lodging his caveat that a sale of the defendant’s land may include part of his own land which has been encroached.

All in all then the Court makes the following orders:

(a) the defendant is to remove all his encroachments on the plaintiff’s land within 3 months;

(b) the plaintiff has clearly suffered general damages and he is awarded general damages of $1,800;

(c) costs are awarded to the plaintiff against the defendant to be fixed by the Registrar together with any disbursements;

(d) the defendant’s counterclaim is dismissed.

CHIEF JUSTICE

Solicitors:
Richard’s Law Firm for plaintiff
Drake & Co. Law Firm for defendant