Board of Trustees of the Congregational Church of Samoa v Pouvi [2003] WSSC 4 (14 February 2003)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

BOARD OF TRUSTEES
OF THE CONGREGATIONAL CHURCH OF SAMOA
having its offices at Tamaligi in Apia.
Plaintiff

AND

FILIFILIA I’AULUALO POUVI
Homemaker and
TAPUSOA MALULAUFAI
Matai, both of Faala, Palauli.
Defendants

Counsel: KM Sapolu for plaintiff
TRS Toailoa for defendants

Hearing: 23, 24 July 2002
Judgment: 14 February 2003

JUDGMENT OF SAPOLU CJ

Introduction

The plaintiff is the board of trustees of the Congregational Christian of Samoa which is the largest religious denomination in Samoa. The first-named defendant Filifilia Iaulualo Pouvi is the widow of Iaulualo Pouvi who died in 1991. Iaulualo Pouvi held the chiefly title Iaulualo of his family at Faala, Palauli, in Savaii. The second-named defendant Tapusoa Malulaufai is a matai of Iaulualo Pouvi’s family. The dispute between the parties relates to the land “Paepaelauniu” at Faala, Palauli. The land is situated at the centre of the village of Faala and abuts on the main public road on its inland side. Part of the land is currently occupied by the Iaulualo family and part of it used to be the site for two churches built by the London Missionary Society (LMS) the predecessor of the Congregational Christian Church. The part of the land that was occupied by the LMS is now vacant and on inspection by the Court on Wednesday, the 15th of January 2003, which inspection was made upon application by counsel for the defendants, that part of the land is still vacant.

The plaintiff claims that it is the legal registered owner of Paepaelauniu which is freehold land and is seeking from the Court an order to evict the defendants and their family from the land. The defendants on the other hand in their third amended statement of defence and counterclaim state in their defence that the land is customary land and is the maota (traditional residential site) of the title Iaulualo of their family which is called Paepaelauniu. In the alternative, the defendants counterclaim that if the Court decides that the land is freehold land which belongs to the plaintiff, then the defendants and the Iaulualo family have been in adverse possession of the land for more than twelve years and have therefore acquired a good title to the land under the relevant provisions of the Limitation Act 1975. It is clear from the evidence and from the way the case was presented that the defendants were defending the plaintiff’s claim and counterclaiming in adverse possession not only on their behalf but more particularly on behalf of their Iaulualo family. In fact the defendants did not testify at the trial; it was Iaulualo Tusigaigoa the current holder of the Iaulualo title of the defendants family who testified for the defendants. This is common practice with Samoans when the matai titles or customary lands of their families are the subject of Court litigation; the title holder of the family leads the family. The defendants have also counterclaimed for damages in relation to an interlocutory injunction that was granted by the Court against the defendants upon application by the plaintiff. This part of the defendants counterclaim was not pursued at the trial but I will refer to it because of the significance of the issue that it raises, that is, how to claim damages for loss suffered in consequence of an interlocutory injunction which has been wrongly granted upon application by the plaintiff. The defendants have also counterclaimed that proceedings by the plaintiff amount to an abuse of process. That part of the counterclaim was also not pursued at the trial and I need not say anything more about it as it does not raise any issue of significance.

As it appears from the pleadings and the oral and documentary evidence that was adduced at the trial, there are three principal issues for decision by the Court. The first is the title to the land; the second is adverse possession; the third is the status of the land. The fourth issue which is the defendants counterclaim for damages pursuant to the interlocutory injunction arises on the defendants pleadings.

To avoid too much repetition and any confusion in the evidence, I have decided to deal with the evidence insofar as it is relevant to each of the three principal issues under three different Parts in this judgment. There will necessarily be still some unavoidable repetition of the evidence. Part A will deal with the title to land; Part B will deal with adverse possession and Part C will deal with the current status of the land. In Part D I will deal with the fourth issue, namely, the damages claimed pursuant to the interlocutory injunction; and Part E will be the judgment.

PART A
Title to land

The gist of the dispute between the plaintiff and the defendants is that the plaintiff claims that the land “Paepaelauniu” at Faala, Palauli, is freehold land which belongs to the plaintiff, whilst the defendants on the other hand claim the land is customary land which belongs to the title Iaulualo of their family. To understand the basis of the opposing claims by the two parties I will first set out the evidence in support of the claim by the plaintiff and then the evidence in support of the claim by the defendants. I will then make my decision on the respective claims.

The documentary evidence which was produced for the plaintiff shows that the land in dispute which is called Paepaelauniu was transferred by a deed of gift dated the 1^st of June 1888 by one Seu a Samoan pastor of the London Missionary Society (LMS) a religious denomination, as donor, to one W.E. Clarke and his successors as donee being the representatives or trustees of the LMS for the religious purposes of “the Church”. According to the oral testimony of the witness Lagaaia Mataava, a principal orator of Faala, Palauli, called by the plaintiff, Seu was not a matai but a Samoan pastor of the LMS and he was a member of the Lagaaia family. It is clear from the deed of gift that at the time it was executed the LMS had a church already built on the land. It is important to set out the terms of the deed of gift in full:

“Memorandum of gift of land at Faala Palauli.

“This Debenture made this 1st day of June 1888 between Seu Samoan Pastor of the LMS the donor and W.E. Clarke of the second part. First part has agreed to freely give to him the piece of land. Donor does hereby grant and transfer to the Donee his successors and assigns all that land known as Paepaelauniu and situate at Faala on which the LMS church now stands and measuring from North to South 35 fathoms and from East to West 37 fathoms the said land being bounded on the East side by the land belonging to Chief Lagaaia on the West side by the land Chief Tui on the seaward side by Chief Lagaaia on the inland side by the Govt road for the sole use of the said Donee so long a time as the said piece of land shall be required by the Donee or his successors being the representatives or trustees of the LMS.

“Signed : Seu

“in presence of Kirisome

Tipa

“W. E. Clarke

“The land was a gift to the Mission for religious purposes which was a sufficient consideration.

“Claim No. 1302

“Faleaau”

It is not clear from the copy of the deed of gift which was produced to the Court when the words after the name “W. E. Clarke”, where it last appears in the deed, were written in the deed. But I am of the view those words might have probably been written on the deed at the time the LMS made a claim in respect of the land Paepaelauniu to the Land Commission that was set up under the Final Act of the Berlin Conference on Samoan Affairs 1889 (the Final Act of 1889) which was passed on the 14th day of June 1889 by the three Powers at the time, namely, the United Kingdom of Great Britain and Ireland, Imperial Germany, and the United States of America.

The Final Act of 1889 established a Supreme Court of Samoa which consisted solely of a Chief Justice: Article II, Sect 1. Decisions by the Chief Justice on questions within his jurisdiction were to be final: Article II, Sect 2. The Act also established a Land Commission to adjust and settle all claims by aliens or foreigners to titles to land or any interest in land in Samoa: Article IV, Sect 2. The Land Commission was required that upon its establishment, it should give public notice that all claims by any foreigner to any title or interest in lands in Samoa should be presented to the Commission within four months of the public notice or within such extension of time allowed by the Chief Justice: Article IV, Sect 3. It was also made the duty of the Land Commission to investigate all claims by foreigners to land whether acquired from natives or aliens and to report to the Supreme Court which consisted only of a Chief Justice on the following matters: (a) whether the sale or disposition was made by the rightful owner or native entitled to make it, (b) whether the consideration was sufficient, and (c) the identification of the land: Article IV, Sect 4. Claims which were undisputed and decided valid by the unanimous voice of the Commission were to be confirmed in writing by the Supreme Court and entered in its record: Article IV, Sect 6. The Supreme Court was also to make provision for a complete registry of all valid titles to land which were owned or might be owned by foreigners: Article IV, Sect 7.

From the bundle of documents that was produced by counsel for the plaintiff, it is clear that following the enactment of the Final Act of 1889, the LMS made a claim to the Land Commission for recognition and registration of its title to the land transferred in the deed of gift from Seu to W.E. Clarke and his successors as representatives or trustees of the LMS. The number of the claim was 1302. It is noted in the report dated the 15th of November 1893 of the Land Commission to the Chief Justice in respect of the claim by the LMS that the land was a gift to the LMS for religious purposes. It is also noted in the same report that: (a) the gift was made by the rightful owner; (b) the written evidence in support of the title is correctly stated in the claim; and (c) the claim is undisputed. It is further noted in the same report that the Land Commission by unanimous voice decided the claim by the LMS to be valid and recommended that it be recognized and registered. On the 28th day of October 1894 the Supreme Court comprising of the Chief Justice confirmed the claim by the LMS subject to the terms of the deed of gift. Then by Court Grant dated the 8th day of January 1894 signed by the Chief Justice the LMS was declared proprietor of the land Paepaelauniu described in its claim but subject to the public rights over road and the terms of the deed of gift dated 1st June 1888 from Seu. That remained the situation with regard to this land under the German administration in Samoa in the early 1900’s until the New Zealand occupation of Samoa in 1914.

As is well known to some Samoans, New Zealand’s occupation of Samoa started in 1914 at the beginning of World War I. The New Zealand Government enacted as the principal constitutional instrument to govern the administration of Samoa at that time the Samoa Constitution Order 1920 which came into force on 1st day of May 1920. The Samoa Constitution Order 1920 was later re-enacted as the Samoa Act 1921.

Under s.258 of the Samoa Constitution Order 1920 (SCO 1920) which was later re-enacted under the Samoa Act 1921, land in Samoa was classified into three categories: Crown land, European land, and Native land (later called Samoan land). Section 258 provided:

“(1) All land in Samoa is Crown land, or European land, or Native land.

“(2) ‘Crown land’ means land vested in the Crown free from Native title and from any estate in fee simple.

“(3) ‘European land’ means land held from the Crown for an estate in fee simple.

“(4) ‘Native land’ means land vested in the Crown but held by Samoans by Native title.

“(5) ‘Native title’ means title to land in accordance with the customs and usages of the Samoan people”.

Section 267 of the SCO 1920 then explains ownership of European land by providing:

“All land in Samoa which at the commencement of this Order is owned by any person or body corporate (other than land owned by Samoans by Native title) shall on the commencement of this Order be deemed to be held by that person or body corporate for an estate in fee simple as by grant from the Crown, subject, however, to all encumbrances or other interests less than ownership which are at the commencement of this Order vested in any other person or body corporate, and all such land is hereby declared to be European land accordingly”.

The Samoa Land Registration Order 1920 which came into force on the same day as the SCO 1920 provided for the registration of Crown land, European land and European interests in Native land. Clause 8 provided that no instrument of title shall affect the legal title to land unless it is registered in the land register. A copy of the land register volume 3, folio 293, was produced in evidence for the plaintiff which shows the land in dispute to have been registered on the 1^st day of November 1921 under the name of The London Missionary Society as a fee simple and is classified as European land.

The statutory history of the classification of land in Samoa between the Samoa Constitution Order 1920 and the Constitution of the Independent State of Samoa which came into force on the 1st day of January 1962 was not canvassed at the trial. One of the reasons is that it is very difficult now to locate many of the old legislations.

Under Article 123 of the Constitution it is provided that land which was formerly European land under the SCO 1920 is now freehold land; land which was formerly Native land under the SCO 1920 and which was later called Samoan land is now customary land; and land which was formerly Crown land is now public land. Article 101 of the Constitution defines each of these three new categories of land. Thus it was submitted for the plaintiff that the land in dispute which has been registered under the name of the London Missionary Society and classified as European land is now freehold land by virtue of Article 123 of the Constitution.

Now the London Missionary Society (LMS) no longer exists in Samoa; it has been superseded by the Congregational Christian Church in Samoa. By deed of conveyance dated the 16th day of October 1968, the LMS conveyed a number of parcels of land that it held in fee simple to the Board of Trustees of the Congregational Christian Church in Samoa, which is the plaintiff in the present case, subject to the trusts and purposes for which any of those lands may have been granted or acquired by the LMS. One of those parcels of land is the land in dispute. The deed of conveyance was registered in the land register on the 8th day of February 1969 so that the plaintiff is now the registered owner of the disputed land.

It is also clear from the documentary evidence that the LMS built two churches on the land. The first church was already built on the land by the 1st of June 1888 as shown from the deed of gift from Seu to W. E. Clarke and his successors as representatives or trustees for the LMS. But there is no evidence as to when that church was actually built on the land prior to the first of June 1888. The second church was built in 1954 on the site of the first church. In 1984 after the LMS had been superseded by the Congregational Church in Samoa, a third church was built, not on the disputed land, but on the opposite side of the road on land which belongs to the title Lagaaia of Faala, Palauli. Thus for just less than one hundred years from 1888 to 1984, “the Church”, as far as the evidence can show, has been in occupation of part of the disputed land.

In support of their claim that the land Paepaelauniu is customary land which belongs to the title Iaulualo of their family in Faala, Palauli, and is the maota (traditional residential site) of the title Iaulualo, the defendants called Iaulualo Tusigaigoa, the current holder of the title Iaulualo of their family, to give evidence on their behalf. The principal documentary evidence that was relied upon in support of the defendants claim is a copy of what was shown to be a decision of the Land and Titles Court dated 20 August 1917. The said decision is in Samoan but I will refer in English to the relevant parts. The decision is headed “Land and Titles Court” then immediately below are the letters and number “L.C. 495”. The parties to the decision are then shown as “Sala’a and Others of Sapapalii” petitioners and “Uli and Others” respondents. The respondents were members of the defendants family. Below the names of the parties is shown the subject matter of the dispute which is “the title Iaulualo” not the land. Then further down are the printed words “Land and Titles Court of Samoa established under the Samoa Land and Titles Act and the Constitution of the Independent State of Western Samoa.” The body of the decision then follows as:

“(1) Each of the two parties has one to the title Iaulualo between Taua and Pese forever.

“(2) The respondents will have the authority over the land Paepaelauniu they have been arguing with (Uli and others).”

The decision is then sealed with what appears to be the seal of the Land and Titles Court and the decision is dated “Mulinuu 20 August 1917”.

I must say that the copy of the Court decision relied upon by the defendants looks most suspicious. So suspicious, I cannot rely on its genuiness or authenticity. In the first place, Samoa did not have a Land and Titles Court in 1917. The institution we had in the early 1900’s under the German Administration to deal with land and title disputes between Samoans was the Land and Titles Commission. Some of the decisions of that Commission may still be found in the old records of the present Land and Titles Court. When New Zealand took over the administration of Samoa from Germany, a Land and Titles Commission was also established under the Samoa Native Land and Titles Order 1920 which was later replaced by the Samoa Native Land and Titles Order 1924. A new Land and Titles Commission was further established under the Native Land and Titles Protection Ordinance 1934 later called the Samoan Land and Titles Protection Ordinance 1934. Under that Ordinance the Land and Titles Commission was declared a Court: s.34. But it was not until the Native Land and Titles Court Ordinance 1937 that the Land and Titles Commission became the Native Land and Titles Court which was the forerunner of the present Land and Titles Court. Thus there was no Land and Titles Court in existence in Samoa in 1917. Furthermore, the Constitution which is mentioned in the decision relied upon by the defendants only came into force on the 1st day of January 1962 when Samoa became an Independent State. There was no Constitution in 1917. Apart from those matters, the subject matter of the dispute between the parties is shown to be the title Iaulualo, however paragraph 2 of the decision states that the respondent party has the authority over the land Paepaelauniu they have been arguing with. The LMS is also not shown to have been a party to the decision.

Out of concern that the copy of the decision of 1917 given to the Court may be a mistake, I called on the Office of the Registrar of the Land and Titles Court in my capacity as President of that Court for the file on the case concerning the title Iaulualo in 1917. The advice I received from the Office of the Registrar of Land and Titles is that the original Court file concerning this matter is missing and has been missing for a very long time but no one seems to know when the original file went missing. However, the copy of the 1917 decision which is in the Court file given to me by the Office of the Registrar of Land and Titles differs in its wording in certain parts from the wording in the copy of the decision that was produced in the plaintiff’s bundle of documents at the trial. For instance, the wording of the main body of the decision in the Court file given to me by the Office of the Registrar is the same as the wording of the decision produced at the trial. However, immediately after the subject matter these words appear in that decision in printed form as follows: “The Land and Titles Court appointed by His Excellency the High Commissioner”. There is no mention of the Constitution in the copy of the decision given to me by the Office of the Registrar, and as already pointed out there was no Land and Titles Court in 1917. Anyone who is familiar with the colonial history of Samoa would know that Samoa did not have a “High Commissioner” in 1917. The head of the German Administration in Samoa was called “Governor”: see Samoa mo Samoa by Professor Davidson at pp76 and 88. When New Zealand occupied Samoa in 1914 at the beginning of World War I the head of the New Zealand Administration in Samoa was called “Administrator”: see Samoa mo Samoa by Professor Davidson at p.92. It was not until the enactment of the Samoa Amendment Act 1947 which came into force by proclamation on 10 March 1948 that the head of the New Zealand Administration in Samoa was called “High Commissioner”: see Samoa mo Samoa at p185. So Samoa did not have a High Commissioner in 1917 and the reference to “His Excellency the High Commissioner” in the copy of the decision in the file of the Land and Titles Court that was given to me must be incorrect, to say the least. That decision is also dated as “Apia 20 August 1917” whereas the copy of the decision produced at the trial and upon which the defendants relied is dated as “Mulinuu 20 August 1917”. Given these circumstances, I cannot accept that the copy of the decision of 1917 upon which the defendants relied for their claim to the disputed land or the copy of the decision in the Court file given to me is is genuine or authentic. That does not necessarily mean there was no litigation in 1917 which involved the Iaulualo family as it will be shown shortly. All I am saying is that I cannot rely with any degree of confidence on the copy of the decision that was produced at the trial as genuine or authentic.

Amongst the documents produced for the plaintiff at the trial was a sketch survey plan of a survey done on the 3rd of August 1917 of the land Paepaelauniu. The names of the parties which appear on the purported decision of 20 August 1917 also appear on that plan. The letters and numerals “L.C. 495” which appear on the said decision also appear on the same plan. It would therefore appear that there is some connection between the said sketch survey plan and the decision that was produced but the true nature of that connection is not clear. There was also oral testimony from the witness Lagaaia Mataava called for the plaintiff that his forefathers had related to him that after the case that was held in 1917 which involved the Iaulualo family of the defendants, that family started to occupy the land Paepaelauniu. Thus there is evidence which go to show that a case was held in 1917 which involved the Iaulualo family of the defendants.

The witness Iaulualo Tusigaigoa who testified for the defendants said that the Iaulualo family have been living on the disputed land for over one hundred years and members of his family including five past holders of the title Iaulualo are buried on the land and their graves can still be seen on the land. The inspection of the land by the Court on the 15th of January 2003 confirmed there are graves on that part of the land occupied by the defendants family. Some of those graves are of recent origin but other graves said to be the graves of past holders of the Iaulualo title appear to be quite old. Iaulualo Tusigaigoa also testified that Paepaelauniu is the maota of the title Iaulualo and it has been recognized as such within their village of Faala and their district of Palauli. Paepaelauniu is also shown in one of the books of traditional honorific salutations of Samoa as the maota of the title Iaulualo.

After careful consideration of the evidence given for both parties, I have decided to accept the evidence given for the plaintiff as to the status of the land in dispute and the evidence given for the plaintiff as to their title to the land. The evidence given for the plaintiff is quality evidence. It consists of documentary evidence which the defendants could not contradict with any reliable evidence. The documents speak for themselves; they were prepared more than one hundred years ago at the time when Seu transferred by way of gift the land to W.E. Clarke as representative or trustee for the LMS in 1888. The Land Commission set up under the Final Act of 1889 unanimously approved on the 15th of November 1893 the claim by the LMS to the disputed land and recommended recognition and registration of the claim. The Chief Justice confirmed the claim on the 28th day of October 1894. All this was done according to the law which was in force in Samoa at the time. The land was then registered as a fee simple under the name of the LMS on the 18th day of November 1921 and classified as European land. I accept the argument by counsel for the plaintiff that that registration and classification were done pursuant to the provisions of the Samoa Land Registration Order 1920 and the Samoa Constitution Order 1920. European land is now classified as freehold land under Articles 101 and 123 of the Constitution. The land in dispute is also now registered under the name of the plaintiff by virtue of the deed of conveyance dated the 8th day of February 1969 from the LMS. The land is therefore freehold land which belongs to the plaintiff as registered owner but subject to any possessory title the defendants may have acquired and to any change in the status of the land or part thereof by operation of law.

I have explained why I am not prepared to accept the genuiness or authenticity of the copy of the decision of 1917 relied upon by the defendants as the foundation of their claim that the land belongs to the title Iaulualo of their family. I also do not consider the evidence given by Iaulualo Tusigaigoa as to his family’s occupation of the land for many years, the recognition of Paepaelauniu within his village, district and in a book of traditional honorific salutations of Samoa as the maota of the title Iaulualo, and the graves of members of his family on the land as sufficiently decisive on the questions of the status and ownership of the land. There was also some evidence from Iaulualo Tusigaigoa that Seu had no right to gift the land in 1888 to the LMS. But that is oral testimony given more than a hundred years after the gift was made. The Court prefers the documentary evidence that was given for the plaintiff as much more authentic and reliable evidence regarding what actually took place in 1888.

All in all then, I conclude that on the evidence given for the plaintiff the land in dispute is freehold land and the plaintiff is the registered owner but subject to any possessory title the defendants may have acquired and to any change in the status of the land or part thereof by operation by law.

That brings me to the question of adverse possession.

PART B
Adverse possession

It is clear from the deed of gift from Seu to W. E. Clarke on behalf of the LMS that by the 1st of June 1888 there was already a church on the land which was said to be the first church built by the LMS on the land. It was built on the western side of the land. In 1954 that church was replaced by a second church built on the same site by the LMS. In 1984 that second church was pulled down and a third church was built on land which belongs to the title Lagaaia on the inland side of the Government main road at Faala almost directly opposite from the site of the two previous LMS churches. The site of the two previous churches remains vacant up to now. This third church is right next to the pastor’s residential house. Thus from at least 1888 to 1984, a period of almost one hundred years, the LMS and then its successor the Congregational Christian Church of Samoa (CCC), had been occupying and making use of part of this land. A letter dated 17 April 2001 from Rev Epati Setefano, the current pastor of the CCC at Faala who was appointed in 1991, to the Court was produced by counsel for the plaintiff in the written material she produced. The letter shows that the CCC at Faala has plans to build another church as well as the residence of its pastor on the land in dispute in the future when there is sufficient funds. However, on the evidence as a whole, I am of the view that this special purpose or future plan mentioned in that letter does not alter the decision I have reached on this part of the case. The disputed land is not undeveloped, unbuilt or waste land: see generally Buckinghamshire County Council v Moran [1990] 1 Ch 623 on this question of “special purpose” or “future plan” by an owner of vacant or unoccupied land in relation to a claim for adverse possession.

As for the defendants, the sketch plan of the survey of the land that was done on the 3rd of August 1917 shows two building structures on the land, the first LMS church on the western side of the land and the house of Uli to the eastern side of the church. This person Uli according to evidence of the witness Iaulualo Tusigaigoa was the leader of his family’s party in the 1917 case. Uli later held the title Iaulualo of the defendants family. The evidence does not show how long Uli had his house on the land prior to the date of the survey. Be that as it may, it is clear from the documentary evidence that at least from 1917, the family of the defendants have been occupying part of the land to the eastern side of the two churches that were on the land. The witness Lagaaia Mataava who was called by the plaintiff also testified that his forefathers had told him that after the case in 1917, the Iaulualo family started to occupy the land. He also testified that when he first visited his family at Faala in 1958 and then in 1959, and when the title Lagaaia was bestowed on him in 1961, the Iaulualo family were already in occupation of part of the land. I take this to mean that at that time the Iaulualo family were already in occupation of the eastern side of the land as there was an LMS church on the western side of the land until 1984. Thus for numerous years from at least as far back as 1917 the Church and the Iaulualo family have been in joint occupation of this land, the Church on the western side of the land and the Iaulualo family on the eastern side of the land. In modern survey terms the area of the land is three roods and twelve decimal point two perches (0a.3r.12.2p). The land is therefore relatively small in area.

The history of the co-existence of the Church and the Iaulualo family on this land of Paepaelauniu, as far as it may be gathered from verifiable evidence, shows no friction between the two parties until 1954 when the LMS started to build its second church to replace its first church. Iaulualo Penisio, the then holder of the title Iaulualo of the defendants family, raised strong objection to the construction of the second church. However, a reconciliation was effected between Iaulualo Penisio and members of the congregation of the LMS Church at Faala on the 5th of May 1954 and the construction of the second church continued. Then in 1984 when the second church was pulled down and the third church was to be built on the opposite side of the road on land which belongs to the title Lagaaia, Iaulualo Pouvi who was the then holder of the title Iaulualo raised strong objection when the members of the congregation of the CCC at Faala (at that time the CCC had superseded the LMS) tried to remove the foundation of the second church for use in the construction of their third church. The CCC at Faala sought the assistance of the Office of the Registrar of Land and Titles and intervention by that Office enabled the Church to remove the foundation of their old church. Iaulualo Pouvi made objection because he claimed that the foundation of the old church should be left for his family as compensation for the long occupation by the Church of his family’s land. Then in 1988 when the Land Committee of the CCC visited the land to carry out a re-definitional survey of its boundaries, Iaulualo Pouvi discharged gunshots to keep the members of the Land Committee of the CCC away from the land. In fact a fight occurred between a member of the Land Committee and a member of the Iaulualo family and the police were called in. Then followed a meeting between the Land Committee of the CCC and Iaulualo Pouvi in accordance with Samoan custom and the land was surveyed in May 1988 by the Land Committee without further interference from Iaulualo Pouvi or his family. A plan of that survey which shows all boundaries of the land was produced for the plaintiff.

It is clear from the objection made by Iaulualo Penisio in 1954 to the construction of the second church, from the objection made by Iaulualo Pouvi in 1984 to the removal of the foundation of that church, and the actions by Iaulualo Pouvi in 1988 in discharging gunshots when the Land Committee came to survey the land and the ensuing fight, that Iaulualo and his family were clearly asserting an intention to possess and to own the land. However I do not accept that Iaulualo Pouvi ordered the removal of the church from the land in 1984. I accept the evidence given by Lagaaia Mataava that the present church was built where it is now because of the wish of the then CCC pastor of Faala to build the new church next to the pastor’s house to make the work of the pastor more convenient.

Evidence was also given by Iaulualo Tusigaigoa that five holders of the title Iaulualo are buried on this land. These were Iaulualo Malulaufai, Iaulualo Faipaua, Iaulualo Uli, Iaulualo Penisio and Iaulualo Pouvi. Except for Iaulualo Pouvi who died in 1991, no dates were given as to when the other holders of the title Iaulualo who are buried on the land died. It is clear from the evidence that Iaulualo Malulaufai preceded Uli to the title Iaulualo. This is Uli whose house appears on the sketch survey plan of the 3rd of August 1917. So Iaulualo Malulaufai must have died very many years ago. So were Iaulualo Faipaua and Iaulualo Uli. Iaulualo Penisio succeeded Iaulualo Uli but it is also not clear when Iaulualo Penisio died. The only assistance in this regard is a letter dated 5 April 1965 from the Office of the Registrar of Land and Titles at Tuasivi to Pouvi Iaulualo. In that letter mention is made of the children of Iaulualo Penisio deceased who are still living on the land. So Iaulualo Penisio must have died prior to the 5th of April 1965. The Church made objection to the burial of Iaulualo Pouvi on the land in 1991, but the Iaulualo family went ahead with his burial. I have come to the view that the continuing burial of the said successive holders of the title Iaulualo over the years on this land were also clear assertions of an intention on the part of the Iaulualo family not only to possess but to own the land. The LMS and its successor the CCC must have been aware of all these burials as the Church was also occupying the land at the same time. Yet the only evidence of any objection by the Church is in relation to the burial of Iaulualo Pouvi who died in 1991. On the Court’s inspection of the land on 15 January 2003, Iaulualo Tusigaigoa pointed out the graves of the past holders of the title Iaulualo and they are very close to the site of the two past LMS churches that were built on this land. It is therefore not possible to conclude that the Church could have missed the sight of those graves. Graves of other members of the Iaulualo family who are buried on the land were also pointed out but it was not clear from the evidence how old are those graves. Evidence in support of a claim for adverse possession needs to be precise.

Evidence was also given that this land Paepaelauniu is the maota of the title Iaulualo and it has been recognized as such within the village of Faala and the district of Pauli. Evidence was also given for the defendants of a book of honorific salutations of the villages of Samoa where Paepaelauniu is shown as the maota of the title Iaulualo in Faala, Palauli. I am of the view that the CCC in Faala and the members of its congregation must have been aware of Paepaelauniu being referred to as the maota of the title Iaulualo within their village and district but there is no evidence that the Church or members of its congregation made any objection. Lagaaia Mataava when cross-examined by counsel for the defendants also acknowledged that Paepaelauniu is referred to as the maota of the title Iaulualo. Maota as already pointed out, means a traditional residential site of a Samoan matai or title holder. So reference to Paepaelauniu as the maota of the title Iaulualo is another clear assertion of Iaulualo’s intention not only to possess but to own the land. I am also of the view that the knowledge by members of the CCC at Faala that the disputed land was being referred to within their village and district as the maota of the title Iaulualo is to be attributed to the CCC and the plaintiff as also knowledge on their part.

In 1988 when Iaulualo Pouvi tried to construct a two storey building on the land, the plaintiff moved for an exparte interlocutory injunction on the 11th of October. The Court granted the motion and an interlocutory injunction was issued on the same day, the 11th of October 1988, to restrain Iaulualo Pouvi, his servants or agents, or any member of his family , or any of them either alone or in conjunction with anyone else from building or continuing to build on the land. It would appear Iaulualo Pouvi went ahead with the construction of his two storey building. That injunction has never been discharged. On the same day, the plaintiff also filed an action against Iaulualo Pouvi claiming possession of the land. Iaulualo Pouvi died in 1991. When the defendants in the present proceedings and their family in February 2001 dismantled the same two storey building and attempted to construct another building, the plaintiff moved for another interlocutory injunction on the 22nd of February 2001. The Court granted the injunction the same day to restrain the defendants, their servants or agents from constructing any building on the land. A claim was also filed the same day to evict the defendants and their family from the land. Thus it was on the 11th of October 1988 that the plaintiff first asserted their rights by taking legal proceedings for an interlocutory injunction and for possession of the land from the then holder of the title Iaulualo and his family. The plaintiff again re-asserted its rights by seeking another interlocutory injunction and by filing a further action on the 22nd of February 2001 to evict the defendants and their family from the land.

A diagram of what is on the land was prepared and produced by a representative of the Office of the Registrar of Land and Titles at Tuasivi. It shows the houses of the Iaulualo family on the land. There are quite a number of them and include a two storey building, two single-storey European style houses, a large Samoan style house and a number of huts and cooking houses. A number of graves of the Iaulualo family are also shown. The vacant site of the two LMS churches that were built on the land is also shown.

During the Court’s inspection, it was observed that the site of the two previous churches on the land is still vacant, there is nothing on it. Iaulualo Tusigaigoa said his family are still looking after that part of the land. It was also observed that to the seaward of the site of the two previous LMS churches is a European style house and some huts. A member of the Iaulualo family said that European style house was built in 1990 but Iaulualo Tusigaigoa said there was a previous house of their family on the same site. Reverend Ioane Onesemo of the CCC, who is also a qualified survey technician, said when the survey of the land was done in 1988 by the Land Committee of the CCC there were no houses on the seaward side of the land including the part of the land to the seaward side of the site of the two previous LMS churches. I have decided to accept what was said by Rev Ioane Onesemo. The plan of the survey that was carried out in 1988 shows all boundaries of the land. Reverend Onesemo said during the Court’s inspection of the land that the boundary on the seaward side of the land could not have been surveyed and shown on the plan if there had been houses on the seaward side of the land at the time of the survey in 1988. I have also decided to accept that the European style house to the seaward side of the site of the two previous churches was only built in 1990. The huts on the same part of the land also appear to be recent structures. I do not accept the evidence that was given at the trial by the representative of the Office of the Registrar of Land and Titles at Tuasivi that some of those houses on the seaward side of the site of the previous LMS churches appear to be forty to fifty years old. During the Court’s inspection these houses do not appear to be anywhere near forty or fifty years old. It was also observed during the Court’s inspection that the graves of the past holders of the title Iaulualo are fairly close to the site of the previous LMS churches.

For a party to establish title to land by adverse possession, he has to show on the balance of probabilities (1) that the true owner has either (a) been dispossessed, or (b) discontinued his possession of the land; and (2) that he has been (a) in possession of the land for the full limitation period, (b) with the necessary animus possedendi, that is, the intention to possess the land for the time being to the exclusion of all other persons including the true owner, and (c) his possession has been adverse: Buckinghamshire County Council v Moran [1990] 1 Ch 623 per Slade LJ at p636; per Nourse LJ at p644; and see the judgment of this Court in Nelson Mackenzie Ltd v Sale Lamosi (1995) (C.P. 125/93; unreported judgment delivered on 5 July 1995).

It is clear from the provisions of s10(1) of the Limitation Act 1975 that the time from which the limitation period starts to run for the purpose of a claim to possessory title to land by adverse possession may be either (a) the time of ‘dispossession’ (or as sometimes called ‘ouster from possession) of the paper owner, or (b) ‘discontinuance of possession’ by the paper owner followed by possession by another. The often-cited distinction between dispossession and discontinuance of possession in English law is that stated by Fry J in Rains v Buxton [1880] UKLawRpCh 114; (1880) 14 Ch D. 537 at pp539-540 where his Lordship said:

“In my view, the difference between dispossession and the discontinuance of possession might be expressed in this way – the one is where a person comes in and drives out the others from possession, the other case is where the person in possession goes out and is followed into possession by other persons”.

In Buckinghamshire, Nourse LJ pointed out that in practical terms the distinction between dispossession and discontinuance of possession is a very fine one and the acts of user and intention a claimant has to show to establish dispossession are no different from those which are required in the case of discontinuance of possession. His Lordship at p644 said:

“Adopting the distinction between dispossession and discontinuance which was suggested by Fry J in Rains v Buxton [1880] UKLawRpCh 114; (1880) 14 Ch D 537, 539, I take the first case to be one where the squatter comes in and drives out the true owner from possession and the second to be one where the true owner goes out of possession and is followed in by the squatter. In the light of that distinction, a very fine one, it is sometimes said that the intention of the true owner may be material in this way. If he intends to use the land for a particular purpose at some future date, a discontinuance of possession can be prevented by the slightest acts of ownership on his part, even none at all. That no doubt is perfectly correct, but nothing follows from it except that the case becomes one where the true owner must be dispossessed before his title can be lost. He can only be dispossessed if the squatter performs sufficient acts and has a sufficient intention to constitute adverse possession. Those acts and that intention are no different from those which are required in a case of discontinuance, there being no practical distinction between what is necessary to exclude all the world in a case where the true owner has retained possession and in one where he has discontinued it.”

From what has been said about a true owner being dispossessed of his possession or having discontinued his possession and followed into possession by another person, the question arises as to what is the legal meaning of possession. In Butterworths Land Law in New Zealand (1997) by Hinde, McMorland and Sim, the learned authors state at para 2.004 at p55:

“Possession of land, in its traditional sense, means ‘that degree of occupation or physical control, coupled with the requisite intention commonly referred to as animus possedendi, that would entitle a person to maintain an action of trespass in relation to the relevant land’”.

In Powell v McFarlane (1977) 38 P & CR 452, Slade J (as he then was) said at pp 470-471:

“Factual possession signifies an appropriate degree of physical control ........ The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed”.

From these authorities, it is clear that possession of land is not restricted to actual occupation, it can be exclusive physical control over land, provided in either instance the necessary animus possedendi is also present.

Possession which is adverse was explained in McDonnel v Gibbon [1904] NZGazLawRp 25; (1904) 23 NZLR 660 by Cooper J at pp662-663 in the following terms:

“In order to constitute a title by adverse possession, possession relied on must be for the full period........ actual, open and manifest, exclusive, and continuous..... In order to dispossess the rightful owner the possession which is claimed to be adverse to his rights must be sufficiently obvious to give such owner the means of knowledge that some person has entered into possession adversely to his title.... It must be sufficiently open and manifest that a man reasonably careful of his own interests would, if living in the locality and passing the allotment from time to time, by his observation would have reasonably discovered that some person had taken possession of the land. No doubt, in applying this rule regard must be had to the character and position of the land..... Possession in order to be adverse must be such as will be sufficient to entitle the person in occupation during the [limitation period] to main his right against any person but the true owner.”

That statement of the law was cited and applied by Blanchard J in delivering the judgment of the New Zealand Court of Appeal in Cotton v Keogh [1996] 3 NZLR 1 at p7. See also Tong v Car Reconditioners Ltd [1978-1982] 1 NZ CPR 587 at p591.

The disputed land, as already pointed out, is situated at the centre of the village of Faala, Palauli. It abuts on the main public road. It is just more than three quarters of an acre in area. It is not undeveloped, unbuilt or waste land. Any person passing along the main road or through the village of Faala would not fail to see this land and any occupation thereof. When the LMS and then its successor the CCC were in joint occupation of the land, the successive pastors and members of the Faala congregation could not have failed to observe when they attend Church the occupation of the eastern part of the land by the defendants and their predecessors in title – the Church and the Iaulualo family were in joint occupation of the land right next to one another. The graves of certain of the past holders of the Iaulualo title are also very close to the site of the previous LMS churches built on the land and would have been obvious to anyone who goes to Church.

It is clear that as of the 1st of June 1888 the LMS was already in actual occupation of the disputed land where they had already built a church on its western side close to the western boundary. The LMS continued to occupy that side of the land until it built its present church on the opposite side of the main public road in 1984. Thus the LMS and the CCC did not discontinue possession of the western side of the land until 1984 when the third church was built on the opposite side of the main road. The significant question is whether the LMS discontinued possession or was dispossessed of the eastern side of the land currently occupied by the defendants and, if so, when.

As just pointed out, the LMS and the CCC could not have discontinued possession prior to 1984 as at that time they were occupying the western side of the land. Discontinuance of possession would be a more apt description of what took place when the Faala congregation moved to the new church which was built on Lagaaia land on the opposite side of the main public road in 1984 and the old church was pulled down. In my view, since 1888 the LMS church was in occupation and therefore in possession of the land. For the defendants to succeed in their claim to possessory title by adverse possession, they would have to show that their predecessors in title had dispossessed the LMS and its successor in title the CCC and the plaintiff of the eastern part of the land at some stage. Even though the English and New Zealand authorities I have consulted are concerned with claims to adverse possession over the whole of the disputed land, I am of the view that, as a matter of principle, possessory title may also be claimed in relation to part of a disputed land in respect of which the true owner has been dispossessed. I alluded to this point in Nelson Mackenzie Ltd v Sale Lamosi (supra). I see no sound justification in principle for saying one can claim possessory title by adverse possession to the whole land but not to part of the whole even though all the elements necessary to establish adverse possession to part of the whole are present. I have not been able during my research to find any authority to the contrary of that proposition.

It is also clear from the evidence that as of the 3rd of August 1917 Uli, who later held the title Iaulualo, had already had a house built on the land to the eastern side of the then LMS church. The evidence given by Lagaaia Mataava who testified for the plaintiff is that his forefathers had told him that the Iaulualo family had been occupying this land since the case in 1917. I take this to mean that the Iaulualo family started to occupy the eastern side of the land in 1917 because the LMS was already occupying the western side of the land by 1917. Lagaaia Mataava also testified that when he first visited his village of Faala in 1958 and then in 1959 and also when he was bestowed with the title Lagaaia in 1961, the Iaulualo family were already in occupation of the land. The evidence given by Iaulualo Tusigaigoa who testified for the defendants is that over the years his family had built and then rebuilt houses on this land. Evidence was also given of the graves of Iaulualo Malulaufai and Iaulualo Faipaua who preceded Uli in the title Iaulualo being on the land to the eastern side of the site of the previous LMS churches. The grave of Iaulualo Uli is also on the land and so is the grave of his immediate successor Iaulualo Penisio who, as the evidence shows, must have died prior to the 5th of April 1965. When the LMS tried to construct its second church in 1954 on the same site as the original church, Iaulualo Penisio raised strong objection. Even though that objection was withdrawn after a reconciliation was effected between Iaulualo Penisio and members of the LMS at Faala, the objection itself reflected the attitude held by Iaulualo Penisio towards the land. From all of that evidence, I am of the view that the LMS had been dispossessed of that part of the disputed land to the eastern side of the site of the past LMS churches. Certainly by the time Iaulualo Penisio died prior to the 5th of April 1965, if not before, the persistent and continuing occupation of the land by the Iaulualo family, the continuing building and rebuilding of houses, even if few in number, over the years and the continuing burial of the past holders of the title Iaulualo on the land are unequivocal evidence which demonstrate dispossession of the paper owner. However, as I have said, dispossession relates only to that part of the land to the eastern side of the site of the previous LMS churches for the purposes of the claim for possessory title by adverse possession: I am satisfied that the Iaulualo family never possessed the site of the previous LMS church and up to now that part of the land is still vacant. I am also satisfied that the Iaulualo family only started to occupy the seaward side of the site of the previous LMS churches in 1990 which was after the plaintiff commenced proceedings on the 11th of October 1988.

In relation to the question of factual possession, I am also satisfied that the defendants and their predecessors in title have been in actual, manifest, exclusive and continuous possession for well over the limitation period of twelve years before the plaintiff first commenced legal proceedings on the 11th of October 1988 to remove the defendants and their family from the land. Even if one were to take a conservative estimate and start calculating the time period for limitation purposes from April 1965 after Iaulualo Penisio died, the possession of the land by the defendants and their predecessors in title would still be well over the limitation period of twelve years given that the defendants first commenced legal proceedings on the 11th of October 1988 to remove the defendants and their family. The evidence is clear that the Iaulualo family and its titleholders Iaulualo Uli, his immediate successor Iaulualo Penisio, and then Iaulualo Pouvi had been in continuous occupation of this land since 1917. The land has also been acknowledged and referred to in terms of honorific salutations within the village of Faala and the district of Palauli by its name of Paepaelauniu as the maota of the title Iaulualo. The acts of user by the defendants and their predecessors have not been trivial. The building and rebuilding of houses on the land, occupation of those houses as homes, and the continuing burial of certain past holders of the title Iaulualo on the land are quite significant acts of user of the land.

For the purposes of a claim to title by adverse possession, the claimant may add to the period of time he has been in possession the periods of time his predecessors in title had been in continuous possession: see for instance Tong v Car Reconditioners Ltd [1978-1982] 1 NZ CPR 587 per Richmond J at pp589,590; Rains v Buxton [1880] UKLawRpCh 114; (1880) 14 Ch D 537. The first-named defendant is the widow of the late Iaulualo Pouvi who died in 1991. The second-named defendant is a member of the family of Iaulualo Pouvi. It is not clear from the evidence when they actually started to occupy the land. But it is clear that about May 1988 when the Land Committee of the CCC visited the land to carry out a re-definitional survey of its boundaries, Iaulualo Pouvi discharged gunshots from his house on the land to keep the members of the Land Committee away from the land. So the defendants must have already been in occupation of the land by May 1988. The defendants may add their period of possession of the lands to the periods of time their predecessors in title had been in possession for the purpose of their claim to possessory title.

In relation to the requirement of animus possedendi, the evidence which has already been referred to in relation to the requirements of dispossession and factual possession for the full limitation period and its adverse nature, is also unequivocal evidence which demonstrates that the defendants and their predecessors in title had the necessary animus possedendi. The occupation by the Iaulualo family of the land after the case in 1917, their continuing building and rebuilding of houses on the land over the years, the burial of their past title holders on the land, and the traditional salutation of Paepaelauniu within the village of Faala and the district of Palauli as the maota of the title Iaulualo provide unequivocal evidence which demonstrate an intention to possess that part of the land they have been occupying to the exclusion of all other people including the true owner.

I turn now to explain why the claim for adverse possession cannot succeed in relation to that part of the land to the seaward side of the site of the past LMS churches. I have already indicated that I accept what the witness Rev Ioane Onesemo stated during the Court’s inspection of the land that when the Land Committee of the CCC visited the land in 1988 to carry out a re-definitional survey of the boundaries of the land, there were no houses on part of the land to the seaward side of the site of previous LMS churches. There are now small huts and a European style house on that part of the land as were observed during the Court’s inspection. A member of the Iaulualo family who was present at the inspection in response to a question from the Court said the European style house was built in 1990. I do not accept what was said by the witness Iaulualo Tusigaigoa that there was another house on the same site before the European styled house was built. I also do not accept the evidence that was given at the trial by the representative of the Office of the Registrar of Land and Titles at Tuasivi that when he prepared a sketch plan of this land and the structures on it in 2001, some of the houses on that part of the land to the seaward side of the site of part LMS churches appeared to be about forty to fifty years old. My own observation during the Court’s inspection is that none of the houses on the seaward side of the site of previous LMS churches appear to be anywhere near forty to fifty years old. Those houses must have been built in 1990 after the survey of the land that was done in 1988.

For the defendants or members of the Iaulualo family to build houses in 1990 on part of the land to the seaward site of the site of previous LMS churches after the interlocutory injunction was granted in October 1988 to restrain Iaulualo Pouvi, his servants or agents, or any member of his family from building or continuing to build on the land was a clear breach of the injunction. Possession of land which is obtained in violation of a Court injunction cannot be lawfully used by a party claiming title by adverse possession for the purpose of such a claim otherwise that will amount to encouraging people not to comply with orders of the Court. The injunction that was granted has not been discharged. In any event when the plaintiff commenced legal proceedings in 1988 to obtain possession of the land, that stopped the running of the limitation period for the purpose of adverse possession. Between 1990 and 22 February 2001 when the plaintiff brought further proceedings against the defendants and their family is a period of about eleven years which is less than the limitation period of twelve years.

All in all then, I conclude that the defendants have established their counter-claim to possessory title by adverse possession to the eastern part of the land, that is, from the eastern boundary of the land then going westward to the graves of certain past holders of the title Iaulualo. I also conclude that the defendants have not established title by adverse possession to the site of the previous LMS churches or to that part of the disputed land to the seaward side of the site of the previous LMS churches.

PART C
Status of land

I have found this part of my judgment the most difficult. I have concluded under Part A of my judgment that the disputed land is freehold land with the plaintiff as the registered owner subject to the claim by the defendants to possessory title by adverse possession and any change in the status of the land or part thereof. I have subsequently found that the defendants have established their claim to title by adverse possession to the eastern part of the land from the eastern boundary then moving westward to the graves of the past holders of the title Iaulualo who are buried on the land. The principal contention by the defendants is that the land is customary land which belongs to the title Iaulualo. That contention is rejected by the Court’s finding that the land is freehold; but the obvious wish of the defendants is that if they succeed in their claim for adverse possession their share in the land should be declared as customary land which belongs to the title Iaulualo of their family. The reasons for the defendants wish are obvious.

The defendants claim based on adverse possession relies substantially on the occupation of the disputed land by past holders of the title Iaulualo and members of their Iaulualo family. Iaulualo Pouvi the late husband of the first-named defendant was also a holder of the title Iaulualo. Certain of the past holders of the title Iaulualo are buried on the land including Iaulualo Pouvi who died in 1991. The disputed land is also acknowledged and referred to in the honorific salutation of the village of Faala and the district of Palauli as Paepaelauniu, the maota of the title Iaulualo which is not only the paramount chiefly title of the village of Faala but one of the high ranking chiefly titles of the whole district of Palauli. To simply give the defendants possessory title by adverse possession will create the odd situation of the defendants being individual owners of part of the land as freehold land. That will also in effect deprive the title Iaulualo of “his maota” because in Samoan custom the maota of every chiefly title is founded on customary land and not freehold land. It is unheard of in Samoan custom or way of life for the paramount chiefly title of a village or a high ranking chief of a district to be without a maota situated on customary land.

The current classification of land in Samoa is provided in Article 101 of the Constitution as follows:

“(1) All land in Samoa is customary land, freehold land or public land.

“(2) Customary land means land held from Samoa in accordance with Samoan custom and usage and with the law relating to Samoan custom and usage.

“(3) Freehold land means land held from Samoa for an estate in fee simple.

“(4) Public land means land vested in Samoa being land that is free from “customary title and from any estate in fee simple”.

Section 31 of the Judicature Ordinance 1961 which provides for the jurisdiction of the Supreme Court states:

“The Supreme Court shall possess and exercise all the jurisdiction, power, and authority, which may be necessary to administer the laws of Samoa”.

Section 31 is rarely invoked by the Court. But a novel and unprecedented situation has arisen in this case.

I am satisfied that the part of the disputed land to which title by adverse possession has been given to the defendants has over many years been held and used by the Iaulualo family of the defendants in accordance with Samoan custom and usage and customary law as if it is customary land. That is clear from the evidence of the witness Iaulualo Tusigaigoa and also from the defendants pleadings. After much consideration, I have decided in reliance on s31 of the Judicature Ordinance 1961 and the inherent jurisdiction of the Court that the part of the land to which possessory title by adverse possession is given to the defendants should be declared customary land which pertains to the title Iaulualo of Faala, Palauli. It is accordingly so declared. I have been reinforced in taking this course by the fact that under s9(1) of the Limitation Act 1975, no action may be brought by the Government to recover land after the expiry of sixty years from the date its right of action accrued. This suggests that an individual in appropriate circumstances may acquire title to Government or public land by adverse possession after the expiry of sixty years. Such title would be freehold title, as the case may be, which suggests that public land can become freehold land under the doctrine of adverse possession. In the present case, it is freehold land becoming customary land.

PART D
Damages by reason of interlocutory injunction

In their statement of defence and counterclaim, the defendants counterclaim for damages by saying that the plaintiff’s action in seeking interlocutory injunctive relief as well as an eviction order against them amounts to an abuse of civil process. This counterclaim was not pursued at the trial. However, the counterclaim touches on a significant issue which the Court would like to address given the opportunity presented by this case to do so. The issue is how the defendant should claim damages against the plaintiff for loss sustained in consequence of an interlocutory injunction that was granted in error upon application by the plaintiff. The interlocutory or interim injunction is by far the most popular equitable remedy in Samoa and the Court has granted numerous interlocutory injunctions against defendants upon applications by plaintiffs. This gives the Court all the more reason to address the issue stated given the opportunity presented by the present case. But before I do so, I need to refer briefly to the relevant facts pleaded by the defendants.

The defendants allege that in consequence of the interlocutory injunction issued against them on the 22nd day of February 2001 upon application by the plaintiff, they were both convicted for contempt of Court and each of them was fined $250. There is no substance in this allegation because if the defendants thought the interlocutory injunction was granted in error, the proper cause for them to take was to move for a discharge of the injunction and not to disobey it. For defendants to disobey the injunction was tantamount to taking the law into their own hands. That is not right. They were properly convicted for contempt of Court for disobedience of the injunction. They cannot claim damages for their conviction for disobedience of the injunction while it was still in force.

The defendants further allege that their being restrained pursuant to the interlocutory injunction from completing their family home on the land in dispute caused them a great deal of inconvenience, anxiety and mental distress in addition to injury to reputation. What occurred was that in February 2001 the defendants and members of their family dismantled their two storey home that was on the land and were going to construct another home on the same site. The plaintiff made application to the Court for an interlocutory injunction and filed proceedings for an eviction order on the ground that the land belongs to the plaintiff and the defendants were trespassers on the land. Accompanying that application was an undertaking as to damages given to the Court on behalf of the plaintiff. The Court granted the application on the same day and issued an injunction to restrain the defendants, their agents or servants from constructing any more building on the land.

As the authorities show, the correct procedure to be followed by the defendant who has sustained loss in consequence of an interlocutory injunction that was granted in error upon application by the plaintiff is to apply to the Court to enforce the plaintiff’s undertaking as to damages. It is therefore of significance to note the form of the undertaking as to damages that has been filed by the plaintiff. Without an undertaking the Court has no jurisdiction to award damages for loss sustained by the defendant in consequence of an injunction that was wrongly made. It is the undertaking that gives the Court jurisdiction. As a matter of practice, the Court usually requires an undertaking from the plaintiff who applies for an interlocutory injunction before an injunction is granted. This is mainly because if the injunction turns out to have been granted in error, the defendant who has suffered loss will be without a remedy if the plaintiff has not given an undertaking. In Equity and Trusts in Australia and New Zealand (2000) 2^nd ed by Dal Pont and Chalmers, it is stated at p821:

“If damages would not provide an adequate remedy, the Court will consider whether, if the plaintiff fails, the defendant would be adequately compensated under the plaintiff’s undertaking in damages, in which case an interlocutory injunction may be granted. The practice of requiring an undertaking constitutes an implicit recognition that, without such undertaking, the defendant would be without remedy in the event of the injunction having been improperly ordered. Moreover, the undertaking functions to protect, not solely the defendant, but also the Court, from improper or indiscriminate applications for injunctions. The undertaking is given to the Court, not to the party enjoined. In the absence of such undertaking, the Court has no power to award damages for the harm suffered by the defendant from the order made in error. The Court’s jurisdiction in this context arises out of the plaintiff’s undertaking. So damages awarded under such an undertaking are of a different nature than those awarded at common law, having a special character deriving from their source in the plaintiff’s own voluntary undertaking, given as the price of obtaining an injunction. The damages in question are generally those which flow directly from the injunction and which could have been foreseen when the injunction was granted.”

At p822 of their work, Du Pont and Chalmers point out that the enforcement of an undertaking as to damages lies in the discretion of the Court and they give some indication of how the Courts may exercise that discretion. The learned authors state:

“Importantly, the Court has a discretion whether or not to enforce the undertaking, the exercise of which requires consideration of all the circumstances of the case. To this end, the Court may decline to enforce an undertaking ‘if it considers that the conduct of the defendant in relation to the obtaining or continuing of the injunction or the enforcement of the undertaking makes it inequitable to do so.’”

“However, in the absence of special circumstances, such as unconscionable conduct on the defendant’s behalf, it is not the practice of the ‘Court to refuse to enforce an undertaking as to damages. If the Court elects to enforce the undertaking, it must then assess what loss the defendant has suffered in terms of money, whether that loss was caused by the injunction, and whether it was too remote”.

The common law position on the enforcement of an undertaking as to damages given pursuant to an application for an interlocutory injunction and the exercise of the Court’s discretion whether or not of grant enforcement of such an undertaking may also be found in Cheltenham & Gloucester Building Society v Ricketts [1993] 1 WLR 1545 in the judgments of Neill and Peter Gibson LJJ. For the purposes of my judgment, I will only cite a passage from the judgment of Neill LJ which states in concise form the English position on the enforcement of undertakings as to damages. But it is recommended that anyone who is truly interested in this subject ought to read both judgments. At pp1551-1552 Neill LJ in his judgment states:

“From the authorities the following guidance can be extracted as to the enforcement of a cross-undertaking in damages.

“(1) Save in special cases an undertaking as to damages is the price which the person asking for an interlocutory injunction has to pay for its grant. The court cannot compel an applicant to give an undertaking but it can refuse to grant an injunction unless he does. (2) The undertaking, though described as an undertaking as to damages, does not found any cause of action. It does, however, enable the party enjoined to apply to the court for compensation if it is subsequently established that the interlocutory injunction should not have been granted. (3) The undertaking is not given to the enjoined but to the court. (4) In a case where it is determined that the injunction should not have been granted the undertaking is likely to be enforced, though the Court retains a discretion not to do so. (5) The time at which the court should determine whether or not the interlocutory injunction should have been granted will vary from case to case. It is important to underline the fact that the question whether the undertaking should be enforced is a separate question from the question whether the injunction should be discharged or continued. (6) In many cases injunctions will remain in being until the trial and in such cases the propriety of its original grant and the question of the enforcement of the undertaking will not be considered before the conclusion of the trial. Even then, as Lloyd L.J. pointed out in Financiera Avenida v Shiblaq, The Times, 14 January 1991; Court of Appeal (Civil Division) Transcript No. 973 of 1990 the Court may occasionally wish to postpone the question of enforcement to a later date. (7) Where an interlocutory injunction is discharged before the trial the Court at the time of discharge is faced with a number of possibilities. (a) The Court can determine forthwith that the undertaking as to damages should be enforced and can proceed at once to make an assessment of the damages. It seems probable that it will only be in rare cases that the Court can take this course because the relevant evidence of damages is unlikely to be available. It is to be noted, however, that in Columbia Pictures Inc. v Robinson [1987] Ch. 38, Scott J. was able, following the trial of an action, to make an immediate assessment of damages arising from the wrongful grant of an Anton Piller order. He pointed out that the evidence at the trial could not be relied on to justify ex post facto the making of an ex parte order if, at the time the order was made, it ought not to have been made: see p.85H. (b) The court may determine that the undertaking should be enforced but then direct an inquiry as to damages in which issues of causation and quantum will have to be considered. It is likely that the order will include directions as to pleadings and discovery in the inquiry. In the light of the decision of the Court of Appeal in Norwest Holst Civil Engineering Ltd v Polysius Ltd., The Times, 23 July 1987; Court of Appeal (Civil Division) Transcript No. 644 of 1987 the Court should not order an inquiry as to damages and at the same time leave open for the tribunal at the inquiry to determine whether or not the undertaking should be enforced. A decision that the undertaking should be enforced is a precondition for the making of an order of an inquiry as to damages. (c) The Court can adjourn the application for the enforcement of the undertaking of the trial or further order. (d) The Court can determine forthwith that the undertaking is not to be enforced. (8) It seems that damages are awarded on a similar basis to that on which damages are awarded for breach of contract. This matter has not been fully explored in the English cases though it is to be noted that in Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd [1981] HCA 75; (1979) 146 C.L.R. 249, 267 Aickin J in the High Court of Australia expressed the view that it would be seldom that it would be just and equitable that the unsuccessful plaintiff should bear the burden of damages which were not foreseeable from circumstances known to him at the time. This passage suggests that the Court in exercising its equitable jurisdiction would adopt similar principles to those relevant in a claim for breach of contract.”

As to onus of proof, it is for the defendant who seeks to enforce the undertaking to prove that the damages he claims to have sustained were caused by the erroneous grant of the injunction: see Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd [1981] HCA 75; (1981) 146 CLR 249, per Gibbs J at p313; per Stephen J at p320; per Mason J at p324. The defendant would have to establish by evidence the causal link between the damages claimed and the making of the injunction. The quantum of damages claimed would also have to be proved.

It should be clear from the authorities cited that the counterclaim for damages made pursuant to the interlocutory injunction that was granted upon application by the plaintiff is misconceived. The correct procedure is to apply to enforce the undertaking as to damages. In any event this part of the defendants counterclaim was not pursued at the trial and no evidence was adduced to prove the damages claimed. It was also not shown that the interlocutory injunction ought not to have been granted.

PART E
Judgment

I now give judgment as follows:

(a) The defendants claim to possessory title by adverse possession is upheld in relation to that part of the disputed land from the eastern boundary of the land to the graves of the past holders of the title Iaulualo which are the closest to the site of the two previous LMS churches on the western side of the disputed land.

(b) A straight line, nine inches from the nearest point of the graves of the past holders of the Iaulualo title to the site of the previous LMS churches on the western side of the land, is to be surveyed by the plaintiff from the main public road at Faala in the north to the seaward boundary of the land towards the south.

(c) All of the land to the western side of the straight line described in (b) still belongs to the plaintiff as freehold land; possessory title by adverse possession is given to the defendants of all the land to the eastern side of the aforesaid straight line and the plaintiffs freehold title to that part of the land is extinguished.

(d) The houses and other structures which the defendants and/or their Iaulualo family have built on land to the western side of the aforesaid straight line are to be removed within four weeks after the aforesaid straight line is identified by a survey.

(e) The part of the disputed land to which possessory title by adverse possession is given to the defendants is declared customary land which pertains to the title Iaulualo of Faala, Palauli.

(f) Each party to bear their own costs.

CHIEF JUSTICE

Solicitors:
Sapolu Lussick for plaintiff
Toailoa Law Firm for defendant