Public Trustee v Nose [2009] WSSC 70 (17 July 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

The PUBLIC TRUSTEE,
a statutory body established pursuant to the Public Trust Office Act 1975
as the Executor of the estate of TAPENI IOELU deceased.
Plaintiff

AND:

ULUGIA LAUFILI NOSE
sued on his behalf and on behalf of his family members
residing on the estate land at Tulaele.
Defendant

Counsel: F Vaai-Hoglund for plaintiff
G Latu for defendant

Judgment: 17 July 2009

JUDGMENT OF SAPOLU CJ

Proceedings

1. These proceedings were brought by the plaintiff, the Public Trustee, by way of an action on behalf of the estate of Tapeni Ioelu deceased seeking, inter alia, an order for possession of the land at Tulaele which forms part of the said estate and is occupied by the defendant and members of his family, and an order for eviction of the defendant and members of his family who are living on the same land. In short, these proceedings are an action by the plaintiff for recovery of possession of land against the defendant and members of his family.
   
2. The defendant filed a statement of defence pleading two defences. The first defence is founded on adverse possession and the second defence is founded on estoppel. The defence of estoppel was not pursued at the hearing or in the submissions of counsel for the defendant. I, therefore, say no more about it.
   
3. The only issue I have to deal with in this judgment is adverse possession. Because when a party is relying on adverse possession he is in effect claiming possessory title to land by adverse possession, it will be more appropriate to plead adverse possession by way of counterclaim than by way of defence. This brings out more clearly the fact that the claimant to title by adverse possession bears the onus of proving his claim on the balance of probabilities.
   

Background

4. The land which is the subject of these proceedings ("the disputed land") is situated at Tulaele near Apia. It is two acres in area. It is part of the estate of the late Rev Tapeni Ioelu ("Tapeni Ioelu") who was a prominent figure and leader of the Congregational Christian Church of Samoa.
   
5. Sometime after Tapeni Ioelu bought the disputed land, he brought his step-mother Nerisa and made her live on the land. He also built a two storey European house in which Nerisa stayed. At that time, Tapeni Ioelu was serving as a pastor with his wife Tuamafa in Apia but they looked after and took care of Nerisa.
   
6. Nerisa, the step-mother of Tapeni Ioelu, had an "adopted" daughter who was also named Nerisa. In August 1950, Nerisa, the "adopted" daughter, gave birth to the defendant. She left her baby who was then six months old with her adoptive mother Nerisa and disappeared. The defendant has not seen his real mother ever since.
   
7. The defendant grew up on the disputed land under the care of the old lady Nerisa and that of Tapeni Ioelu and his wife Tuamafa. Tapeni Ioelu sent the defendant to school and paid for his schooling. To the defendant Tapeni Ioelu was his father and most probably he must have also looked up to Tuamafa as his mother or one of his mothers. This is quite understandable in the Samoan context where "father" and "mother" have much broader meanings than in the European context. In fact the defendant carried the surname Ioelu and in his evidence still referred to Tapeni Ioelu as his father.
   
8. When Tapeni Ioelu and his wife retired from the service of the Church, they lived with Nerisa and the defendant on the disputed land in the two storey European house which Tapeni Ioelu had built. Tuamafa, the wife of Tapeni Ioelu, then passed away and Tapeni Ioelu married Katerina, a Tongan lady. The old lady Nerisa passed away about two years later.
   
9. The defendant must also have looked up to Katerina, the new wife of his father Tapeni Ioelu, as his new mother.
   
10. It is not clear when the defendant left school, but in 1968 when he was 18 years old he had a wife. In 1970, Tapeni Ioelu found a job for the defendant at a motor mechanic workshop in Apia. This must be where the defendant first learnt his trade as a motor mechanic. Up to now he is still a motor mechanic.
    
11. It also appears from the defendant’s own evidence that he must have been a difficult person as a youth. In 1973 when he was about 23 years old, he escaped in Tapeni Ioelu’s car one night and consumed alcohol. When he returned home, his father told him off and chased him away. The defendant and his wife then went and lived in the wife’s family. However, this was no permanent banishment of the defendant by his father. It was more a telling off of a son by a father who has lost patience with the son because of misbehaviour.
    
12. That would be, in the circumstances, a more realistic interpretation of what happened because after the defendant and his wife left the disputed land, the defendant still returned to the disputed land at times when he was sent for by his father to come. The defendant in his own evidence also agreed that what happened was more part of his being told off by his father rather than "eviction" from the land. The defendant also said that when Tapeni Ioelu died, he was present helping out with the various chores which are normally carried out by members of a family on such an occasion.
    
13. After Tapeni Ioelu passed away on 10 December 1978, his widow Katerina continued to live on the disputed land with her brother Sumani and his wife and children.
    
14. In November 1995, Katerina passed away. I have decided to accept the evidence given by the witness Magele Uelese Sapatu (Uelese) called for the plaintiff that when Katerina passed away she was still living with her brother Sumani and his wife and children on the disputed land. I do not accept the defendant’s evidence that when Katerina passed away, she was no longer living on the disputed land. No plausible or satisfactory reason was given as to why Katerina, who was a foreigner in this country, should want to leave her late husband’s land and the comfort of the two storey European house and live elsewhere.
    
15. There is then considerable conflicts in the evidence as to the events which occurred around this time in relation to the defendant’s entry upon the disputed land and his occupation of the land with his family. These conflicts were between the evidence given by the witness Uelese for the plaintiff and the evidence given by the defendant and his son Lomalasi. I have given careful consideration to the evidence given by these witnesses and have come to the clear view that the evidence of the witness Uelese is to be preferred as credible.
    
16. The witness Uelese is a blood relative of the late Tapeni Ioelu. His mother was a niece of Tapeni Ioelu. He lives at Tulaele one block of land from the disputed land.
    
17. When Tapeni Ioelu passed away in 1978, he left a will. Under the will, Tapeni Ioelu gave a life tenancy over the disputed land to his wife Katerina and devised the disputed land to the matai of his family and three of his nephews all of whom lived in American Samoa. Because of that, the beneficiaries of Tapeni Ioelu’s will, apart from Katerina who was living on the disputed land, authorised their relative Uelese to look after the land on their behalf.
    
18. When Katerina passed away in November 1995, all the other beneficiaries of the said will had already passed away. The children of those beneficiaries were also living in American Samoa and they, too, requested Uelese to look after the disputed land on their behalf.
    
19. According to the evidence given by Uelese, about one to two years after the death of Katerina, in November 1995, that is to say towards the end of 1996 or the beginning of 1997, a cousin of his from New Zealand and the defendant came to his house at Tulaele. They requested permission from Uelese for the defendant to live on the land. Uelese testified that he agreed as the defendant is a member of his family. He pointed out a place near the middle of the disputed land for the defendant and his family to build a house. It was there that the defendant built a small Samoan fale and a tent which he used as a mechanical repair shop.
    
20. Uelese further testified, and it was not disputed by the defendant, that at the time the defendant moved onto the disputed land, Katerina’s brother Sumani and his wife and children were occupying the two storey European house on the land. This is the house in which the defendant had lived and grown up when his father Tapeni Ioelu was alive and before he left with his wife in 1973 to live at his wife’s family.
    
21. Sometime after the defendant moved onto the disputed land, he opened a shop in part of the ground floor of the two storey European house. He also used part of the ground floor for panel beating works. Some time later, the defendant moved upstairs and occupied part of the second floor of the European house. All of this happened while Katerina’s brother Sumani and his family were still staying in the two storey European house.
    
22. Uelese then testified that after one year, but not even two years, after the defendant and his family had moved onto the disputed land, Sumani and the defendant came to his house. Sumani told Uelese about what was happening and said that he was moving out of the two storey European house to avoid any conflict with the defendant. Given the evidence by Uelese, this must have been the end of 1997 or the early part of 1998. So up to the point in time that Sumani and his family left the house and the disputed land, the defendant could not be said to have been in exclusive possession of the disputed land.
    
23. It also appears from the evidence given by Uelese that he told the defendant that if he wanted to do something in the two storey European house or on the disputed land then let him know about it first. However, in about 2005 the defendant cleared part of the disputed land and started building a Samoan fale for the purpose of it being used as a church by the Assembly of God which is the defendant’s religion. The defendant did not consult Uelese about this.
    
24. When Uelese found out about this church being built on the land for the Assembly of God, he told the defendant that their family would not approve of it because the disputed land belongs to Tapeni Ioelu who was a prominent leader of the Congregational Christian Church of Samoa. Uelese advised the defendant that it would be alright if the new Samoan fale was used only as a bible study place but not as a church. However, the house was still used by the defendant as a church.
    
25. Tension and personal differences developed between Uelese and the defendant over the disputed land and it almost resulted in violence one Sunday morning while a bible class was held in the Samoan fale and whilst other members of the Assembly of God congregation were waiting for the start of their Sunday service. This happened in 2005 and soon afterwards in the same year, Uelese told the defendant to leave the disputed land with his family.
    
26. Uelese then approached a firm of solicitors who wrote to the defendant to vacate the disputed land. Uelese later obtained written authorisation from the children of the beneficiaries named in Tapeni Ioelu’s will to approach the plaintiff, the Public Trustee, who is named as sole executor in the will.
    
27. On 26 July 2007 the Public Trustee applied to the Court for probate of Tapeni Ioelu’s will of 20 July 1977 and on 8 August 2007 probate of the will was granted to the Public Trustee. The Public Trustee then commenced the present proceedings on 11 June 2008 for recovery of possession of the disputed land from the defendant and his family.
    
28. I have already said that after careful consideration of the conflicting evidence given by the witness Uelese for the plaintiff and the defendant and his son Lomalasi, I have decided to prefer the evidence given by Uelese as to how the defendant entered upon the disputed land and occupied the land by first seeking permission from Uelese at the end of 1996 or beginning of 1997.
    
29. According to the defendant, he entered and occupied the disputed land in 1994 without asking for permission from Uelese or anyone else. He repeatedly said during examination in chief to questions from his counsel that the disputed land is his own land. He also repeatedly testified that he entered and occupied the disputed land by his own authority in the belief that the land is his own land.
    
30. I find this evidence by the defendant very difficult to believe and understand. The defendant admitted in his own evidence that he was a six months old infant when his real mother left him on the disputed land with the old lady Nerisa. That was about 1950. So the disputed land was already there before the defendant arrived on the land. He was then looked after and brought up by Nerisa and his father Tapeni Ioelu on the disputed land. In 1973, when the defendant was 23 years old, he was chased away by his father because of misbehaviour. He then went with his wife and lived with his wife’s family. However, he was still coming back to the disputed land when his father sent for him. When his father passed away in 1978 he helped out with the usual chores associated with a funeral. He also said that in 1994 he returned and occupied the disputed land.
    
31. In all of that evidence, there is no mention by the defendant that he acquired the disputed land by way of purchase or otherwise. So how could the defendant say that the disputed land was his land and that he entered and occupied the disputed land in the belief that the land was his own land. It was not until the Court questioned the defendant that the tune of his evidence changed and he said the disputed land belonged to his father Tapeni Ioelu.
    
32. Furthermore, it is a contradiction for the defendant to say that the disputed land was his own land and that was why he entered and occupied the land without seeking permission from anyone when at the same time he was relying on adverse possession as a defence. Adverse possession applies only to a trespasser to land, that is to say, a person who is trespassing on someone else’s land. If the disputed land is the defendant’s own land as he says, then he cannot be a trespasser on his own land. He therefore need not rely on adverse possession. But that is the defence he was actively pursuing in these proceedings.
    
33. I also find the defendant’s evidence that when he moved onto the disputed land in 1994 Katerina was no longer living on the land to be suspect. Katerina was granted a life tenancy under the will of her late husband, Tapeni Ioelu. She was a Tongan lady. She was staying in the two storey European house built by Tapeni Ioelu on the disputed land. The house was then in good condition. Her brother Sumani, his wife and children were staying with her and no doubt kept her in company and looked after her as she had no children of her own.
    
34. In those circumstances, I see no good reason why Katerina, who was a foreigner in this country, should want to leave the disputed land and the comfort of the two storey European house which was her home with her late husband Tapeni Ioelu to live elsewhere. I find the evidence given by the witness Uelese that Katerina continued to live on the disputed land in the two storey European house until she died in November 1995 to be more consistent with reality and therefore credible than the defendant’s evidence that when he moved onto the disputed land in 1994 Katerina was no longer living on the land.
    
35. It follows that I also prefer the evidence of Uelese that it was at the end of 1996 or the beginning of 1997, that is, one to two years after Katerina had passed away that the defendant and his family moved onto the disputed land. I do not believe the defendant’s evidence and that of his son Lomalasi that it was in 1994 that their family moved onto the disputed land while Katerina was still alive but living elsewhere. I accept that the defendant and his family only moved onto the disputed land after Katerina had passed away for a year or two when the defendant saw that no one of the family of Tapeni Ioelu was occupying the land but only Sumani the brother of Katerina.
    
36. I also do not accept the defendant’s evidence that he did not request permission from Uelese to move onto the disputed land and that he did not go with a relative from New Zealand, as Uelese testified, to seek such permission from Uelese. I find the evidence given by Uelese in this regard to be of better quality and confidence inspiring as opposed to the evidence given by the defendant and his son.
    
37. It is also clear from the defendant’s evidence that the said Sumani and his family were still living in the two storey European house when the defendant and his family moved onto the disputed land. It was only after some time since the defendant moved onto the land that Sumani and his family moved out of the two storey European house as a result of the defendant forcing himself into the house. This must have been the end of 1997 or the beginning of 1998 because according to the evidence of Uelese it was after one year and not even two years after the defendant moved onto the disputed land that Sumani and his family moved out of the land as a result of the defendant’s actions. In other words, the defendant and his family did not have exclusive possession of the disputed land until the point in time that Sumani and his family left the land which was the end of 1997 or the beginning of 1998.
    

The issues

38. This case was contested at the hearing of the evidence on the basis of whether or not the defendant has acquired title to the disputed land on the basis of adverse possession in terms of ss. 9(2), 10(1) and 14(1) of the Limitation Act 1975. The two elements which constitute adverse possession are factual possession of the relevant land and the requisite intention to possess (animus possidendi).
    
39. More specifically, the two issues which were the focus of the evidence addressed by both parties and are addressed at length in the written submissions of their respective counsel are (a) whether the defendant and his family have been in possession of the disputed land as trespassers or squatters for the full limitation period of 12 years, and (b) whether the defendant and his family entered and occupied the disputed land with the permission or consent of the beneficiaries of the estate of Tapeni Ioelu deceased.
    
40. A third possible issue which arose from the evidence is whether, for the purpose of adverse possession, the defendant can be said to have been in exclusive possession of the disputed land at the same time that third parties were also in occupation of the same land. A fourth possible issue which also arose from the evidence is whether the beneficiaries of the estate of Tapeni Ioelu or their children can be described in law as the "true owners" or "paper owners" of the disputed land.
    

Relevant provisions of the Limitation Act 1975

41. Section 9(1) of the Limitation Act 1975 provides a limitation period of 60 years in respect of any action to be brought by the Government for the recovery of land.
    
42. Section 9(2) of the Act then provides:
    

"(2) No action shall be brought by any other person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him or to some person through whom he claims".

43. The proviso to s.9(2), in so far as relevant, then provides that an action to recover any land may be brought at anytime before the expiration of 12 years from the date on which the right of action accrued to some person.
    
44. Section 10(1) provides:
    

"(1) Where the person bringing an action to recover land, or some person through whom he claims, has been in possession thereof, and has while entitled thereto been dispossessed or discontinued his or her possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance"

45. It is then provided in s.14(1):
    

"(1) No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run (hereafter in this section referred to as adverse possession), and, where under the foregoing provisions of this Act any such right of action is deemed to accrue on a certain date and no person is in adverse possession on that date, the right of action shall not be deemed to accrue unless and until adverse possession is taken of the land".

Relevant case law

46. This Court has, on several occasions in the past, dealt with claims to possessory title to land on the basis of adverse possession: Nelson Mackenzie v Sale Lamosi (1995) (C.P. 125/93; unreported judgment delivered on 5 July 1995); Jennings v Onesemo [2000] WSSC 26; Board of Trustees of the Congregational Christian Church of Samoa v Pouvi [2003] WSSC4; Tofaeono v Taulima [2007] WSSC2. The Court of Appeal has also had occasion to deal with adverse possession in Aliifale Fiso v Reid [1996] WSCA3. It is not necessary to refer to all the principles on adverse possession mentioned and discussed in those cases. It is sufficient for the purpose of this judgment to refer only to those principles which are relevant to the disposition of the issues which have arisen in this case.
    
47. In Atiifale Fiso v Reid [1996] WSCA3 and Nelson Mackenzie v Sale Lamosi (1995) (C.P. 125/93, unreported judgment delivered on 5 July 1995), the Court adopted the following passage from Buckinghamshire Country Council v Moran [1989] 2 A11 ER 225, 232-233 where Slade LJ said:
    

"Possession is never ‘adverse’ within the meaning of the Act if it is enjoyed under a lawful title. If, therefore, a person occupies or uses land by licence of the owner with the paper title and his licence has not been duly determined, he cannot be treated as having been in ‘adverse possession ‘ as against the owner with the paper title"

48. I would add to that statement of principle two more passages from judgments of the House of Lords and the Privy Council. In J A Pye (Oxford) Ltd v Graham [2002] UKHL 30, Lord Brawne-Wilkinson, who delivered the leading judgment in the House of Lords with which the other Law Lords concurred, stated at para 37:
    

"It is clearly established that the taking or continuation of possession by a squatter with the actual consent of the paper title owner does not constitute dispossession or possession by the squatter for the purposes of the Act".

49. And in the judgment of the Privy Council in Remnarace v Lutchman [2001] UKPC 25; [2001] 1 WLR 1651, Lord Millet said at para 10:
    

"Possession is not normally adverse if it is enjoyed by a lawful title, or with the consent of the true owner."

50. The law in Samoa has been, and still is, that possession of land with the permission or consent of the true owner cannot be adverse possession. Whether or not title to land by adverse possession has been established is a question of fact. The onus of proof is on the person claiming title to land by adverse possession and the standard of proof is on the balance of probabilities: Tofaeono v Taulima [2007] WSSC 2 per Vaai J.
    
51. As to the requisite intention to possess (animus possidendi) which forms one of the two elements of adverse possession, this was explained in J A Pye (Oxford) Ltd v Graham [2002] UKHL 30 para 43 where Lord Browne-Wilkinson stated:
    

"[Possession] by the plaintiffs involves an animus possidendi – i.e. occupation with the intention of excluding the owner as well as other people. This requirement of an intention to exclude the owner as well as everybody else has been repeated in subsequent cases. In Powell’s case 38 P & CR 452, 471 Slade J found difficulty in understanding what was meant by this dictum since a squatter will normally know that until the full time has run, the paper owner can recover the land from him. Slade J reformulated the requirement (to my mind correctly) as requiring an ‘intention in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and as far as the processes of the law will allow’ "

52. As to the type of evidence which may or may not support a finding that a squatter has the requisite intention to possess for the purpose of adverse possession, Slade J stated in Powell v McFarlane (1977) 38 P & CR 452, at p. 472:
    

"[Where] the question is whether a trespasser has acquired possession. In such a situation the Courts will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the Courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner."

53. In J A Pye (Oxford) Ltd v Graham [2002] UKHL 30, para 60, Lord Browne-Wilkinson, whilst saying that the Court should look at the whole of the evidence in arriving at a proper view of the matter, noted:
    

"It is true that from the decision in Powell onwards Judges have stressed the common sense caution to be shown towards self-serving evidence such as that which can be given by a squatter as to his own intention at a past time."

Discussion

(a) Was the defendant and his family in possession of the disputed land for the full limitation period of 12 years at the material time?

54. It is vital to the success of a claim to title in land by adverse possession that the claimant has been in continuous possession of the disputed land for the full limitation period of 12 years. In terms of s.9 (2) of the Limitation Act 1975, an action to recover possession of land will be barred after the expiration of 12 years from the date on which the right of action accrued.
    
55. On the evidence I have decided to accept, the defendant first entered and occupied the disputed land sometime between November 1996 and the beginning of 1987. On that basis, apart from anything else, the limitation period of 12 years will have expired either in November 2008 or the beginning of 2009.
    
56. The present action by the plaintiff to recover possession of the disputed land from the defendant and his family was commenced on 11 June 2008. The defendant and his family were therefore not in possession for the full limitation period of 12 years at the time the plaintiff brought its action to recover possession of the disputed land. In terms of s.9 (2), of the Act, the plaintiff’s right of action is not barred.
    
57. It is also clear from the evidence I have decided to accept that the defendant was not in exclusive possession of the disputed land from the time he first entered and occupied the disputed land. Sumani, the brother of Katerina, his wife and children were still living in the two-storey European house that is still on the land and were in occupation of the land. Sumani and his family did not leave the house and the disputed land until one year or just more than one year after the defendant and his family first entered and occupied the land. That must have been about November 1997 or the early part of 1998 when Sumani and his family left the land.
    
58. In McDonnell v Gibbon [1904] NZGazLawRp 25; (1904) 23 NZLR 660, pp662-663, Cooper J said:
    

"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..."

59. That passage has been adopted by this Court in Jennings v Onesemo [2000] WSSC 26 per Wilson J; Board of Trustees of the Congregational Christian Church of Samoa v Pouvi [2003] WSSC 4 per Sapolu CJ; Tofaeono v Taulima [2007] WSSC 2 per Vaai J.
    
60. In J A Pye (Oxford) Ltd v Graham [2002] UKHL 30, para 70, Lord Hope of Craighead stated:
    

"The general rule, which English law has derived from the Roman law, is that only one person can be in possession at any one time. Exclusivity is of the essence of possession."

61. In light of those statements of principles, the limitation period for the purpose of adverse possession would not have started to accrue in favour of the defendant and his family until November 1997 or the early part of 1998 because that was the point in time they first had exclusive possession of the disputed land after Sumani and his family left. The limitation period of 12 years from that time on will not expire until November 2009 or the early part of 2010. In other words, the defendant and his family have not yet been in possession of the disputed land for the full limitation period of 12 years. And the plaintiff has commenced proceedings to recover possession of the disputed land on 11 June 2008 which was well within the limitation period.
    
62. Absent the requisite factual possession of 12 years for the purpose of adverse possession, that, without more, should conclude these proceedings in favour of the plaintiff. For the same reason, the alternative claim by the defendant to adverse possession of only that part of the land where he has built a church, as put forward by his counsel in this written submissions, cannot succeed.
    

(b) Did the defendant and his family enter and occupy the disputed land with the permission of the witness Uelese, the agent of the beneficiaries under the will of Tapeni Ioelu in relation to the disputed land?

63. The second issue which was one of the focal points during the hearing which is addressed at some length in the submissions of counsel is whether the defendant and his family entered and occupied the disputed land with the permission of the witness Uelese as agent of the beneficiaries under the will of Tapeni Ioelu in relation to the disputed land.
    
64. I have decided, as a matter of fact, that the defendant did seek and obtain permission from Uelese for him and his family to live on the disputed land.
    
65. What has caused me some difficulty is the point raised in the submissions by counsel for the defendant that even if it is accepted that permission was sought and obtained by the defendant from Uelese to live on the disputed land, such permission was not proper permission.
    
66. The difficulty as I see it arises in this way. Uelese was authorised by his cousins who are the beneficiaries as devises of the disputed land under the will of Tapeni Ioelu. Because those beneficiaries all resided in American Samoa, they authorised Uelese who lives close by to the disputed land, to look after the disputed land on their behalf.
    
67. At the time that the defendant sought and obtained permission from Uelese to live on the disputed land, all of the beneficiaries had passed away. So when Uelese gave permission to the defendant to live on the land, none of the beneficiaries was alive. However, the children of the beneficiaries who also all reside in American Samoa subsequently agreed to let Uelese look after the land on their behalf.
    
68. At those times, the will of Tapeni Ioelu had still not been probated. An application for probate of the will which appoints the Public Trustee as sole executor was only made to the Court on 26 July 2007. Probate of the will was granted to the plaintiff, the Public Trustee, on 8 August 2007.
    
69. In the cases which have already been referred to in this judgment, it is there stated that possession is never adverse if it is with the licence or consent of the paper or true owner. At the time that Uelese gave permission to the defendant to live on the land, the paper or the true owner of the disputed land would probably still be Tapeni Ioelu because his will had not been probated at that time. If, however, Tapeni Ioelu was not the paper or true owner of the disputed land at that time because he had passed away, then who was the paper or true owner?
    
70. It cannot be said that the beneficiaries, who had all passed away by the time the defendant sought permission to live on the land from Uelese, were the paper or true owners of the disputed land because the will had not been probated and the estate of Tapeni Ioelu had not been administered.
    
71. Another difficulty is whether the authorisation given by the beneficiaries to Uelese to look after the disputed land lapsed upon the death of the beneficiaries or survived the death of the beneficiaries. As already mentioned, it was subsequent to Uelese giving permission to the defendant that the children of the beneficiaries gave authorisation to Uelese to look after the land. However, it is not so clear whether these children of the beneficiaries can claim title to the disputed land through its paper owner who would still be Tapeni Ioelu.
    
72. Thus what is said by counsel for the defendant in his written submissions that the permission given by Uelese to the defendant was not proper permission does give rise to some difficult questions which are not addressed in the written submissions of counsel. In the circumstances, I have decided not to express any conclusive views on those questions.
    
73. Having said that, I am of the clear view that the fact that the defendant did seek and obtain permission from Uelese for him and his family to live on the disputed land provides no clear and affirmative evidence to support a finding that the defendant at the time he first entered and occupied the land with his family had the requisite intention to posses (animus possidendi). If anything, it tends to negate such a finding. In the absence of the requisite intention to posses (animus possidendi), the defendant and his family could not have been in adverse possession at the time they first entered and occupied the disputed land.
    
74. Finally, it would be more appropriate when a party relies on adverse possession to raise adverse possession by way of a counterclaim. This is because when a party is relying on adverse possession, he is in effect claiming a possessory title to the disputed land by adverse possession and seeking to extinguish the title of the true owner. And he has to establish his claim to possessory title to land by adverse possession on the balance of probabilities.
    
75. For all of the above reasons, the defence based on adverse possession cannot succeed. The defendant pursued no other defence.
    

Conclusions

76. 
    

(a) The defence of adverse possession relied up by the defendant cannot succeed.

(b) The defendant and members of his family who are in occupation of the disputed land are ordered to vacate the disputed land and to remove all their belongings within 2 months.

77. Counsel to file memorandum as to costs in 10 days.
    

CHIEF JUSTICE

Solicitors
Vaai Lawyers for plaintiff
Attorney General’s Office, Apia, for defendant