Cook v Sauvao [2002] WSSC 15 (18 July 2002)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

LILY COOK aka SO TA MA WONG
of Christchurch, New Zealand, Retired and
NIVE SOOIALO aka SOO NUI MA WONG
of Auckland, New Zealand, Retired and
NIU TALI aka SO NU MA WONG
of Auckland, New Zealand, Retired.
Plaintiffs

AND

TIRESA IKOKE SAUVAO
of Vaimoso, Pensioner and
ETEVA AUELUA her daughter.
Defendants

Counsel: TRS Toailoa for plaintiffs
TK Enari for defendants

Hearing: 9 May and 17 June 202
Judgment: 18 July 2002

JUDGMENT OF SAPOLU CJ

The plaintiffs and the first-named defendant, Tiresa Ikoke Sauvao (Tiresa), are half sisters having the same mother but different fathers. The father of Tiresa was Ah Kau from Canton, China. He cohabited with Tiresa’s mother Palasi who was from the village of Faleasiu and the issues were Tiresa, her brothers and sisters. When Tiresa’s father was repatriated to China, her mother cohabited with another Chinaman named Ma Wong. The issues of this second union were the plaintiffs, their brothers and sisters. The second-named defendant, Eteva Auelua (Eteva), is a daughter of Tiresa.

The plaintiffs have been residing permanently in New Zealand for a number of years. Lily Cook aka So Ta Ma Wong (Mrs Cook) is the eldest child of the plaintiffs parents. She was born in 1925 and migrated to New Zealand in 1952. Nive Sooialo aka Soo Nui Ma Wong was the second eldest child of the plaintiffs parents. She was born in 1926 and migrated to New Zealand before 1974 but it is not clear what year. She died before the hearing of this case and was therefore not available to give evidence. Niu Tali aka So Nu Ma Wong (Mrs Tali) is the third eldest child of the plaintiffs parents. She was born in 1927 and she migrated to New Zealand in 1983. Occasionally, the plaintiffs would visit Samoa and stay with the defendants, that is, their half sister Tiresa who is residing with her daughter Eteva on the disputed land which is situated at Vaimoso. Why this case has come to Court is because the plaintiffs, who are the registered owners of the disputed land, were chased away from the land by the defendants when they came from New Zealand in September 2001. This action by the defendants, according to Tiresa, was prompted by a letter dated 3 September 1998 by the solicitor for the plaintiffs, acting on instructions by the plaintiffs, in which Tiresa was advised that she could reside on the land until she dies, but after her death her children and her relatives who are residing on the land are to vacate the land. Tiresa was also advised that no person was to be buried on the land and no new house was to be built on the land without first seeking the consent of the plaintiffs.

Following their being chased away from the land, the plaintiffs instructed their solicitor to bring the present proceedings to evict the defendants from the land. In reply, the defendants by their counsel filed a statement of defence and counterclaim not only denying a number of the allegations in the plaintiff’s statement of claim but also counterclaiming that the defendant Tiresa has an interest in the disputed land by reason of the equitable doctrine of resulting trust. It is alleged that she contributed financially to the purchase price of the land. In the alternative, the defendants counterclaim that they have been in adverse possession of the disputed land.

The deed of conveyance by which the plaintiffs became registered owners of the disputed land was produced in evidence by the plaintiffs. The deed is dated the 10^th day of April 1928. It shows the vendors to be Marie Sulita Mann, Helen Mama Mann, May Theresa Mann and Annie Nadaline Mann. The plaintiffs appear in the deed by their names of So Ta, Soo Nui and So Nu of Taufusi. The purchase price of the land is shown as one hundred pounds (£100) and the area of the land is shown as 1a.0r.32.5p. The deed was signed by the vendors before the then Land Registrar.

The dispute in this case really centres on two issues: (a) who provided the money for the purchase price of the land as the defendant Tiresa is claiming that she contributed financially to the purchase price of the land and therefore has an interest in the land by reason of a resulting trust, and (b) how did the defendants come to occupy and continued to occupy the land as the defendants are claiming to be in adverse possession of the land.

Who provided the purchase money for the land

The surviving plaintiffs Mr Cook and Mrs Tali testified that their father operated a restaurant at the three corners at Taufusi in which he employed some of his fellow countrymen from China. And they were told by their father that the money he earned from his restaurant was used to purchase the disputed land. That was in 1928. He then put the names of the plaintiffs, his three children who had been born at that time, in the deed of conveyance as purchasers. No other name appears as a purchaser in the deed. The plaintiffs and their parents had been living at Taufusi before they moved on to the land after it was purchased and lived on it. I am satisfied from the evidence that that was what happened. Mrs Cook, however, said she cannot recall the time they actually moved on to the disputed land as she was too young then. The plaintiffs also said that their father built a one bedroom wooden house on the land in which they lived and a faleoo (hut) at the back. The wooden house is still on the land but an extension has been added to it.

The defendant Tiresa testified that she was born in 1912 as she recalls she was five years old when the great influenza epidemic occurred in 1917 which killed many Samoans. When counsel for the plaintiffs showed Tiresa her birth certificates which shows that she was born on 12 July 1917 at Taufusi, she still maintained that she was born in 1912. If that is true, Tiresa would have been close to sixteen years of age when the disputed land was purchased on 10 April 1928 as shown on the deed of conveyance.

Tiresa said that she was already living with her mother and her full blooded brothers and sisters on the disputed land before it was purchased. Her natural father Ah Kau had returned to China because he had bad eyes. The owner of the land, a lady named Mrs Stowers, wanted to sell the land for one hundred and fifty pounds (£150) but her mother told the owner she did not have enough money. So the price of the land was reduced to one hundred pounds (£100). When counsel for the plaintiffs questioned Tiresa whether Ma Wong, the natural father of the plaintiffs, was also living on the land at that time she merely replied he used to gamble.

As to how the purchase price of the land was paid for, Tiresa said she used to work at Ma Wong’s restaurant at Taufusi and she earned and saved forty pounds (£40) which she gave her mother as her contribution to the purchase price of the land. As for the balance of the purchase price, she said that her mother used to bake cakes and pies which she (Tiresa) and her full blooded sisters sold at the market and the money from the sales of her mother’s bakery was used to make up the total purchase price of the land. She said she was 12 years old at that time. Tiresa also said that her mother purchased the disputed land for all of her children to live on and not just the plaintiffs.

With respect, I find Tiresa’s evidence implausible and incredible. In the first place, the deed of conveyance refers to the plaintiffs as purchasers by their names of “So Ta, Soonui and So Nu of Taufusi” which clearly suggests that the plaintiffs were living at Taufusi when the deed of conveyance was executed on 10 April 1928. Given that the plaintiffs were born in 1925, 1926 and 1927, they were therefore three years, two years and one year old in 1928 when the deed was expected. At such young ages, it is only natural that the mother would live at where her young children were living. As the deed suggests that the plaintiffs were living at Taufusi at the time of its execution, it is only natural to expect that their mother was also living with them at Taufusi at that time. I therefore cannot accept the evidence given by Tiresa that she was already living with her full blooded brothers and sisters and their mother on the disputed land before it was purchased.

Tiresa also said that the person from whom the disputed land was purchased by her mother was a Mrs Stowers. The deed of conveyance for the land shows the vendors to be three ladies all carrying the surname of Mann. There is no vendor by name of Stowers.

It is also incredible that Tiresa who was under sixteen years of age when the land was purchased, would have been able to save forty pounds (£40) from her work at the restaurant of her stepfather who was the natural father of the plaintiffs and contributed it to the purchase price of the land. Such a sum of money must have been a very large sum of money in the 1920’s for an under sixteen year old girl to be able to accumulate. It would be unnatural to expect such a young girl to be able to contribute to the purchase price of a piece of land. It is also incredible that Tiresa’s mother provided for the balance of the purchase price of the land by sending her children to sell cakes and pies at the market when her then husband was operating a restaurant from which more money could be earned. Tiresa’s evidence that the father of the plaintiff’s used to gamble not only shows that the plaintiff’s father had money, but it was an attempt to show that that was where he spent his money and not on the purchase of the land. I do not accept this part of Tiresa’s evidence.

During her whole evidence, Tiresa did not explain why only the names of the plaintiffs appear as purchasers on the deed of conveyance. Tiresa also could not explain why the name of her mother or her other children do not appear on the deed if, as she said, her mother purchased the land for all her children. She said she only found out about the deed after she had returned and lived on the land. That must have been after 1974. However, she said that she did not do anything about the deed during all these years as she was happy and satisfied because she was living on the land. I find that Tiresa did nothing about the deed during all these years for she knew she had no right to the land which was purchased by the father of the plaintiffs for the plaintiffs. In fact when pressed by counsel for the plaintiffs during cross-examination, Tiresa said that what she had said in evidence was what her daughter Eteva told her to say. This is a clear admission by Tiresa that what she was saying in evidence was what someone else had told her to say and not what she believed to be the truth. She also said under cross-examination that she was living with her parents at Taufusi before they moved to the land at Vaimoso but a little later after that she said she was born on the land at Vaimoso. Then a little further on she said that when she was only a toddler, the land had already been purchased. This part of Tiresa’s evidence is very confusing and does not inspire confidence in her credibility.

I find that the purchase price of the land was provided by the father of the plaintiffs who included the names of his daughters, the plaintiffs, in the deed as purchasers. Tiresa did not contribute to the purchase price of the land. The plaintiffs also adduced other evidence to support their contention that it was their father who purchased the land for them and Tiresa did not contribute to the purchase price. It is also evidence which goes to negate the allegation by Tiresa that their mother purchased the land for all her children.

The plaintiffs said they grew up on this land and to their knowledge Tiresa did not live on the land as she had gone to live at Aleipata with her first husband who was from there. In 1940 their mother died at her family at Faleasiu and she was buried there. Only the plaintiffs, their brothers and sisters, and their father continued to live on the land. But in 1942 Tiresa came from Aleipata and stayed with them. The plaintiffs said their father did not like Tiresa staying with them on the land so Tiresa left and lived at Faleasiu at her mother’s family where she took up a second husband. The evidence given by Tiresa on this part of the case is generally confirmatory of the evidence given by the plaintiffs except that her evidence did not deal with what the plaintiffs said that their father did not like Tiresa staying with them and so Tiresa went to Faleasiu and lived with her mother’s family. Tiresa, however, said that she brought building materials from Aleipata to build a house on the land when she returned from Aleipata. From the evidence, I am satisfied that Tiresa did not build a house on the land when she returned from Aleipata in 1942. It is clear from the evidence that the only two houses that were on the land at the time and for many years afterwards were the one bedroom wooden house and faleoo that were built by the plaintiffs father.

The plaintiff Mrs Cook also said that when her father died on 20 June 1962, he was buried on the land. The plaintiffs buried their father on the land without seeking any approval from Tiresa or anyone else. Tiresa made no objection. Then in 1981 when the plaintiffs half sister Faamao died, the plaintiffs approved of her burial on the land. Tiresa’s consent was not sought even though she was already living on the land at that time. Tiresa raised no objection to that burial. In the same year, the husband of the plaintiff Mrs Tali died and the plaintiffs approved of his burial on the land without seeking Tiresa’s consent even though she was already living on the land. Again Tiresa raised no objection to that burial. Then in 1998 the plaintiffs came from New Zealand and stayed with Tiresa on the land and hired surveyors who carried out a resurvey of the boundaries of the land. Tiresa was not consulted regarding the resurvey of the land, yet she raised no objection. In her evidence, Tiresa did not rebut those parts of the plaintiffs evidence. She became somewhat obscure and forgetful. At her old age, she must be about ninety years now if she was born in 1912, one does sympathise for her having to go through this case. Her evidence that what she had been telling the Court was what her daughter Eteva told her to say, seriously undermines the reliability and credibility of her evidence in the face of the careful and meticulous evidence given by the plaintiffs Mrs Cook and Mrs Tali. I find Tiresa’s evidence to be generally very unsatisfactory.

This part of the plaintiffs evidence I just have referred to, when related back to the question of who provided the money for the purchase price of the land, further strengthens the contention by the plaintiffs that it was their father who provided the money to purchase the land. This evidence also further removes any credibility that can be given to Tiresa’s evidence that she provided part of the purchase price of the land and her mother provided the other part. I am satisfied that it was the plaintiffs father who purchased the land for the plaintiffs and Tiresa did not contribute to the purchase price of the land.

In view of that conclusion, I am not able to accept the evidence given by the witness Palasi Peti Tafaoga, a niece of Tiresa, who said that her mother told her that her mother purchased the land from the sale of cakes and pies, which is exactly what Tiresa told the Court.

Resulting trust

Counsel for the defendants submitted that as the defendant Tiresa contributed financially to the purchase price of the disputed land, the plaintiffs as registered owners hold the land on a resulting trust for Tiresa as a tenant in common in equity to the extent of her contribution to the purchase price of the land. Counsel relied on the judgment of this Court in Sagato Woo Ching v Barbara Elisara (2000) (unreported judgment delivered on 20 December 2000). I accept that where two or more persons contribute to the purchase price of land and the land is registered under the name of one or some of them, then in the absence of any evidence which will raise the presumption of advancement, the registered owner or owners will hold the land on a resulting trust for the contributors to the purchase price as tenants in common in proportion to the amount contributed by each contributor.

I would have entertained the submission by counsel for the defendants if I had been satisfied on the evidence that Tiresa did contribute to the purchase price of the land. As I have found that she did not , the submission fails. Accordingly the counterclaim founded on resulting trust is dismissed.

How did the defendants come to occupy and continued to occupy the land

This part of the case relates to the defendants counter-claim for adverse possession. However, as I understand the submissions by counsel for the defendants, he did not press this part of the defendants counter-claim too hard. His emphasis was mainly on the first part of the counter-claim based on resulting trust.

The evidence given by the plaintiffs which is relevant to this part of the case shows that in 1942 Tiresa returned from Aleipata where she had been living with her husband for many years and lived with the plaintiffs on the disputed land at Vaimoso. However, the plaintiffs father did not like Tiresa living with them. So Tiresa left and lived at her mother’s family at Faleasiu where she took up a new husband. The plaintiffs said it was not until 1974 that Tiresa returned to the land. At that time only the plaintiff Mrs Tali was living with her family on the land. The plaintiffs father had died in 1962 and was buried on the land and the plaintiffs Mrs Cook and Mrs Sooialo had migrated to New Zealand. The evidence that was given by Tiresa is generally confirmatory of this part of the evidence given by the plaintiffs. She also did not dispute the allegation by the plaintiffs that their father did not like Tiresa living on the land when she returned from Aleipata in 1942.

Mrs Tali in her evidence said that in 1974, Tiresa came and sought permission from her to live on the land. She consented and told Tiresa to live in the faleoo at the back. At that time, Mrs Tali and her family were living in the one bedroom wooden house which was built by the plaintiffs father on the land. Tiresa’s evidence seems to suggest that she came onto the land in 1974 on her own volition as she has a right to the land because, as she said, the land was purchased by her mother for all her children and she had contributed to the purchase price of the land. I have already decided not to accept that Tiresa’s mother purchased the land for all her children or that Tiresa contributed to the purchase price of the land which seriously imposes a cloud of incredibility over her evidence.

I find as credible the evidence given by Mrs Tali that in 1974 Tiresa sought permission from her to live on the land and she consented to it. It is realistic to accept Mrs Tali’s evidence as Tiresa is her half sister and there is no evidence that any disharmony existed between her and Tiresa at that time. She must therefore have found it unobjectionable to permit Tiresa to live with her on the land. The plaintiffs father who did not like Tiresa living on the land had also died.

The evidence also shows that Mrs Tali had been living on the land for all her life since she was born in 1927. Tiresa on the other hand had hardly lived on the land. She spent many years at her husband’s family at Aleipata and when she returned to the land in 1942 it was only for a relative short period before she went and lived at her mother’s family at Faleasiu. Such long absences for many years from the land not only casts doubt on Tiresa’s evidence that she has a right to the land, but it also makes it natural to expect that Tiresa would have to ask for permission to live on the land from Mrs Tali who had been living on the land for all her life.

Mrs Tali also said that by 1983 all her children had migrated to New Zealand, so in that year she decided to visit her children in New Zealand. Before she left, she asked Tiresa to shift from the faleoo at the back and stay in the wooden house at the front while she traveled. That was how Tiresa came to stay in the wooden house. Mrs Tali ended up staying permanently in New Zealand. However, she and the other plaintiffs continued to visit Samoa from time to time and stayed with Tiresa in the wooden house. Tiresa’s evidence seems to suggest that the plaintiffs stayed with her as guests during their visits and not as exclusive owners of the land. I also disbelieve this part of Tiresa’s evidence. The evidence shows that in 1981 when Faamao another half sister of the plaintiffs died, she was buried on the land with the approval of the plaintiffs without any approval being sought from Tiresa even though she was already living on the land at that time. In the same year when the husband of Mrs Tali died he was buried on the land with the approval of the plaintiffs. Again no approval was sought from Tiresa even though she was living on the land. Then in 1998 the plaintiffs came from New Zealand and had the land resurveyed without consulting Tiresa and Tiresa raised no objection at not being consulted. Tiresa said she cannot recall the land being resurveyed in 1998. However, she seems to recall events that occurred many more years back. I think Tiresa was not being totally candid here.

The plaintiffs also said that in 1986, a son of Mrs Tali from American Samoa built a house on the land for her mother with the approval of the plaintiffs. Tiresa said that house was built on the land with her approval. I prefer to believe the evidence given by the plaintiffs as opposed to the evidence given by Tiresa on this part of the case.

In 1988, an extension was made to the wooden house. The plaintiffs said they paid for that extension by donating in equal shares with their deceased sister Mrs Sooialo to a sum of $1000 which they remitted from New Zealand to Tiresa to pay for the extension of the wooden house. Tiresa admitted to having received that money, but the defendant Eteva said that when she and Tiresa received the money, the extension to the wooden house had already been built. She did not say what was done with the money. There was no evidence from the defendants that they returned the money. The plaintiffs said that they never received the money back. The inference I draw is that the defendants kept and used the money. And that money was used to pay for the extension of the house.

The defendants also said that in 1998 they leased part of the land for two years to one Peni Sipuaa Ah Chong to live on with his family. The lease ended in 2000. The plaintiffs said they were not aware of such a lease. The next time they came to Samoa after their visit in 1998 was in September 2001. Mr Ah Chong whose lease ended in 2000 must have left the land by that time.

Adverse possession

This Court has already dealt extensively with the law on adverse possession in its judgment delivered in the case of Nelson Mackenzie Ltd v Sale Lamosi (1995) (C.P. 125/93; unreported judgment delivered on 5 July 1995). Other cases where adverse possession has been dealt with are Peter Eugene Reid Jnr v Atiifale Fiso (1995) (C.P. 124/93; unreported judgment delivered on 23 August 1995); Wallace Jennings v Ioane Onesemo (2000) (unreported judgment delivered on 9 August 2000), and see the unreported judgment of the Court of Appeal delivered on 23 November 2001 on an appeal from that case. I do not propose to discuss the law on adverse possession again except to apply it now to the facts of this case as I find them.

Counsel for the plaintiffs relying on Nelson Mackenzie submitted that the defendants claim based on adverse possession must fail. He put forward three grounds for that submission: (a) the defendants occupation of the land has been with the permission of the plaintiffs so that such occupation cannot be adverse until that permission was withdrawn; (b) the evidence does not show that the plaintiffs have been dispossessed or ousted from possession of the land for the required statutory period of 12 years; and (c) the evidence does not show that the defendants had the necessary animus possidendi. As will appear shortly, I accept the submission put forward by counsel for the plaintiffs and the grounds on which it is based.

From the evidence that I accept, it is clear that Tiresa was permitted by the plaintiff Mrs Tali in 1974 to live on the land. That was how the defendants came to occupy the land. Possession of land is never adverse if it is enjoyed under a licence or permission given by the owner of the land: Nelson Mackenzie and Peter Eugene Reid. The licence or permission that was granted to the defendants to occupy the land was clearly withdrawn by the plaintiffs on 18 September 2000 when the present proceedings for an eviction order were served on the defendants.

Section 9 of the Limitation Act 1975 provides that no action to recover possession of any land shall be brought after the expiry of 12 years from the date on which the right of action accrued. The right of action in this case clearly accrued in September 2001 when the defendants ousted the plaintiffs from possession of the land by chasing them away from the land. The plaintiffs were, in other words, dispossessed of the land by the defendants in September 2001. As the 12 years period for adverse possession would have accrued from that time, the present proceedings by the plaintiffs are well within time.

Furthermore, for possession to be adverse, it must involve an animus possidendi on the part of the person who is relying on adverse possession i.e. an intention on the part of such person to occupy the land to the exclusion of every other person including the owner of the land. However, the evidence is clear that from 1974 when Tiresa first lived on the land to 1983, she was living with Mrs Tali on the land. Then in 1981, Faamao and the husband of Mrs Tali were buried on the land with the approval of the plaintiffs and without objection from the defendants. In 1986, a son of Mrs Tali built a house on the land for his mother without any objection from the defendants. In 1988, the defendants accepted the money remitted from New Zealand by the defendants to pay for the extension that was being made to the wooden house the defendants were and are still living in on the land. And in 1998 the plaintiffs came to Samoa and had the land resurveyed without any objection from the defendants. It is also clear that the plaintiffs visited Samoa from time to time and stayed on the land in the same house with the defendant Tiresa without being ousted from the land. The last of such visits was in 1998. It was only when the plaintiffs visited Samoa again in September 2001 that the defendants chased them away from the land. I find the evidence regarding the lease of part of the land in 1998 by the defendants to Mr Ah Chong to be inconclusive as the plaintiffs were not aware of it.

From the evidence, it cannot possibly be said that prior to September 2001, the defendants were in occupation of the land with the necessary intention of excluding the whole world including the plaintiffs as owners from the land. The first time which may be said that the defendants showed such an intention was in September 2001 when they chased the plaintiffs away from the land. The plaintiffs immediately commenced the present proceedings and served them on the defendants on 18 September 2001. The present proceedings are therefore well within time.

All in all then, judgment is given for the plaintiffs. The defendants are ordered to vacate the disputed land within three months. Leave, however, is reserved to the defendants to apply if for some good reason they need an extension of time. The defendants counter-claim is dismissed.

Counsel to file memorandum as to costs within seven days.

CHIEF JUSTICE

Solicitors:
Toailoa Law Office for plaintiffs
Kruse, Enari & Barlow for defendants