Peters v Sapolu [2003] WSSC 39 (19 December 2003)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

FEILOAIGA PETERS
of Vaitele, Widow,
APPLICANT

AND:

BERNADETTE MARY SAPOLU
also known as TITI SAPOLU of Malifa, Married Woman
RESPONDENT

Counsel: Ms R. Drake for the Applicant
Mr T.K. Enari for the Respondent

Hearing: 28 April 2003
Submissions: 23 July 2003
Decision: 19 December 2003

DECISION OF VAAI J

On the 27^th September 1994 Sapolu CJ entered judgment for the Respondent by formal proof against one Sione Peters by ordering Sione Peters, his agents heirs and successors to quit the land described as:

"ALL that piece or parcel of land containing an area of twenty point five perches (0a.0r.20.5p) more or less situated at Vaitele Faleata near Apia in the District of Tuamasaga described as Parcel 3754 Flur XI Upolu and part of the land registered in Volume 3 Folio 15 of the Land Register of Samoa as the same is more particularly delineated on Plan 5155 deposited in the Office of the Director of Lands in Apia."

The land (to be referred to in this judgment as parcel 3754) was conveyed to the Respondent by the Western Samoa Trust Estates Corporation (WSTEC) by deed of conveyance dated 16^th May 1988 and registered under 6029 C. Immediately to the west of parcel 3754 is parcel 3755. Parcels 3754 and 3755 were part and parcels of land originally owned by WSTEC, which at the request of the Alii and Faipule of Vaitele agreed to lease the said land to the Alii and Faipule of Vaitele in about 1971 and the Alii and Faipule of Vaitele in turn distributed the land amongst themselves by giving each matai a small plot measured by a piece of string, a task performed by two senior matais and to the apparent satisfaction of the recipients. Subsequently at the request of the Alii and Faipule of Vaitele, WSTEC agreed to sell the same land to the Alii and Faipule and to effect the sale the Alii and Faipule attended to a subdivision plan to correspond with the distribution they did amongst themselves when the land was leased to them so that parcel 3754 was land allocated to Simanu Patu, parcel 3755 to Aualiitia Sofe and parcel 3756 to Fausia Tolovae. Other parcels of land were allocated to other matais of Vaitele. Upon payment of the purchase price for each plot to WSTEC a deed of conveyance was executed by WSTEC transferring the particular parcel to the designated purchaser.

The Respondent as the widow of Simanu Patu was conveyed parcel 3755.

The applicant is the sister in law of Aualiitia Sofe who was allocated parcel 3755 and in these proceeding she is seeking orders to:

(i) set aside judgment dated 27^th September 1994.
(ii) Declare the deed of conveyance to the Respondent number 6029C null and void.
(iii) Set aside registration of the same deed of conveyance.
(iv) To resurvey the same land comprised in the same deed of conveyance.

She relies on the following grounds for the orders sought:

(a) that the Respondent has caused to be surveyed and included in the deed of conveyance 6029C land belonging to the Applicant’s family without the knowledge of the applicant.

(b) the Respondent is estopped from denying that the boundary between her land and the Applicant’s family is marked by a coconut tree and drain.

(c ) the judgment of this Honourable Court dated the 27^th September 1994 proceeded on the basis that all the land comprised in Deed of Conveyance 6029 C belonged to the Respondent and that the applicant’s family was trespassing on the Respondent’s land.

(d) the grounds appearing in the affidavits of the applicant and one Fausia Tolovae.

Now the 1994 judgment which the applicant seeks to set aside was judgment in favour of the respondent against the husband of the applicant. There is nothing in the supporting affidavits and in the written submissions of counsel for the applicant to explain why the applicant and her late husband, or the registered owner of parcel 3755, or the siblings of the registered owner of parcel 3755 took no steps to defend the proceedings filed by the Respondent which resulted in the Respondent obtaining judgment by formal proof on the 27^th September 1994. The only reference to the 1994 court proceedings is at paragraph 8 of the applicant’s affidavit which says:

8. That I cannot recall the Court proceedings by which Titi Sapolu obtained an eviction order against my late husband and our family.
   

The applicant is the widow of Sione Peters against whom judgment was entered in 1994. Sione Peters died in 1996. Sione Peters is the brother of Aualiitia Sofe who was allocated parcel 3755.

In reality the essential issue here is the correct boundary between parcel 3755 and parcel 3554. The applicant says that she moved on to parcel 3755 with her late husband after their marriage in 1971 and they lived there with her late husband’s family. They later moved to Savaii but since 1985 they returned to parcel 3755 and resided permanently thereon by constructing a house thereon. It was the construction of that house of the applicant and her late husband which resulted in court proceedings filed by the Respondent against the applicant’s late husband, alleging that the house has encroached onto the Respondent’s parcel 3754.

The applicant says it was either 1987 or 1988 when she and her late husband were constructing their house that the Respondent and her late husband came to Vaitele and on that day it was agreed between the applicant’s late husband and the Respondent and her late husband that the boundary between parcel 3755 and parcel 3754 is the coconut tree by the drain.

The Respondent denies that the coconut tree was agreed to as the common boundary between parcel 3755 and 3754 because the boundary was already in place. I agree with the Respondent for very obvious reasons. In the first place parcel 3755 was allocated by the Alii and Faipule of Vaitele to Aualiitia Sofe and not to the Applicant and her husband. And Aualiitia Sofe’s siblings were occupying the parcel of land when the applicant and her husband moved in. Secondly if the applicant is correct that her late husband and the Respondent agreed in either 1987 or 1988 to a common boundary between the two parcels of land it means that both parties have agreed to change the boundary from that originally pointed out by the Alii and Faipule. Thirdly the Alii and Faipule had sought and obtained scheme plan and subdivision plan for the said lands and each parcels are clearly delineated on the plans. Both parcels 3755 and 3754 are significantly very small and the inspection of the lands by the court and counsels confirms that it would have been physically impossible to construct a second house on parcel 3755 without encroaching onto parcel 3754. Fourthly if the Respondent and her late husband had agreed to the coconut tree being the common boundary, then from what was viewed at the inspection, there would be no point and serves no purpose for the Respondent in owning the balance of parcel 3754 which originally had a total area of only twenty point five perches (20.5p).

As a consequence I reject the documentary and oral testimony for the applicant and for the same reasons I reject the evidence of Fausia Tolovae the owner of parcel 3756 concerning the boundary between parcels 3755 and 3754. He told the court he was present when the plots of lands were allocated to the village matais and the applicant’s sister in law planted a coconut tree to mark the boundary between parcels 3755 and 3754. If this evidence is accepted it amounts to saying that while Fausia Tolovae of parcel 3756 and Aualiitia Sofe of parcel 3755 can enjoy having comfort with their larger parcels of land in excess of twenty odd perches, the Respondent should be confined to a much smaller parcel of about half the size. Secondly the evidence amounts to saying that while the scheme and subdivision plans done by the Alii and Faipule is correct as to the boundary between parcels 3756 and 3755 it is not correct concerning the boundary between 3755 and 3754.

The deed of conveyance to the Respondent of the land described as parcel 3754 and delineated on plan 5155 was as result of an agreement between the Alii and Faipule of Vaitele and WSTEC as the original registered owner, resulting in the land being surveyed in accordance with the approved subdivisional plan. That subdivisional plan has not been challenged by the applicant. More importantly it was never challenged by the registered owner of parcel 3755.

The application is refused. The applicant ordered to pay Respondent’s costs of $1,200.

JUSTICE VAAI