Letele v Filia [2009] WSSC 82 (28 July 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

DORA LETELE of Auckland New Zealand, Widow,
MARIA SHECK of Aai o Fiti, Widow,
THERESA LEAU of Togafuafua, Widow,
JOSEPHINE HUNT of Vaitoloa, Widow,
MARY HICKS of Aleisa, Spinster and
EMELIA COLLINS of Auckland, New Zealand, Married Woman.
Plaintiffs

AND:

RASELA MOLI FILIA, PISAINA FILIA, POVITA HICKS,
TUIVALE HICKS, and SILIA HICKS
Defendants

AND:

THE PUBLIC TRUSTEE,
a statutory body established by the Public Trust Office 1975 having its Office at Savalalo.
Third Party

Counsel: A Roma for plaintiffs
O Woodroffe for defendants
F Vaai-Hoglund for third party

Judgment: 28 July 2009

JUDGMENT OF SAPOLU CJ

Proceedings

1. These proceedings are about (a) the plaintiffs claim for an eviction order to remove the defendants and their family from the land they are occupying (the disputed land), (b) the defendants counterclaim for possessory title to the disputed land by adverse possession and a declaration that the plaintiffs hold the disputed land as constructive trustees for the defendants on the basis of alleged fraud, and (c) the defendants claim against he Public Trustee as third party on the basis of alleged negligence, equitable fraud and mistake.
   
2. I regret to say that these proceedings, which should have been straight forward if they had been restricted to adverse possession between the plaintiffs and the defendants, have been made complicated by the defendants bringing in the Public Trustee as third party.
   

Background

3. The plaintiffs and the defendants are in agreement that a European man named William Hicks came to Samoa from Fiji. The plaintiffs and the defendants are also in agreement that William Hicks Jnr, the father of the plaintiffs, was a natural son of William Hicks Snr. However, they are in strong disagreement as to whether John Hicks, the grandfather of the defendants, was also a natural son of William Hicks Snr.
   
4. According to the evidence given by the 81 year old plaintiff Josephine Hunt, the only plaintiff who gave evidence, her father William Hicks Jnr had told his family that the said John Hicks was a Fijian national his father William Hicks Snr had brought with him from Fiji. But John Hicks was not a natural son of Williams Hicks Snr. This was strongly denied by the defendants who claim that John Hicks their grandfather was a natural son of William Hicks Snr whom he brought with him from Fiji. This was based on what the defendants said their father had told them.
   
5. At one stage of the trial, I was inclined to disbelieve the defendants’ evidence that their grandfather John Hicks was a son of William Hicks Snr. However, after careful consideration of the conflicting evidence given by the plaintiff Josephine Hunt and the defendants, I have doubts about this issue and it would therefore be unsafe to make any finding of fact on it.
   
6. In these proceedings, the Court was left with the word of the plaintiff Josephine Hunt against the word of the defendants. Both parties relied on what they were told by their respective fathers who have passed away and were therefore not available to give evidence and be cross-examined on the conflicting accounts they gave their respective children, that is, if what the plaintiff Josephine Hunt and the defendants were saying about what their respective fathers had told them are true.
   
7. What was undisputed between the parties including the third party is that William Hicks Snr who came from Fiji died on 29 August 1899. He left an estate which included lands. This was the time when Samoa was under a German Administration. On 23 January 1923 after Samoa had been taken over by a New Zealand Administration during World War I, letters of administration of the estate of William Hicks Snr were granted to the third party, the Public Trustee. That suggests that William Hicks Snr died intestate.
   
8. According to the evidence given for the defendants, the estate of William Hicks Snr was not administered until 1929. By that time their grandfather John Hicks had passed away leaving his wife Sulika and son Joseph Hicks, the father of the defendants.
   
9. It appears from the evidence that the lands which comprised the estate of William Hicks Snr included Tualaiiga, Luatuanua or Luatonua, and Faimonolima. The land Tualaiiga was sold to one J Ah Mu and was conveyed by the third party to J Ah Mu; the land Luatuanua was conveyed by the third party on 11 March 1929 to Sulika the widow of John Hicks and grandmother of the defendants; and the land Faimonolima was conveyed by the third party on 27 September 1965 to William Hicks Jnr the natural son of William Hicks Snr and father of the plaintiffs. The land Luatuanua is approximately three and a half acres in area and the land Faimonolima is, by present day measurements, approximately one third of an acre in area.
   
10. By deed of conveyance dated 7 July 1931, the said Sulika sold the land Luatuanua to one Taylor Isaaka or Isaac. By deed of conveyance dated 8 December 1967, William Hicks Jnr gifted the land Faimonolima to his wife and children who are the plaintiffs.
    
11. It is the land Faimonolima which is the disputed land and is the subject of these proceedings. There was some uncertainty during the trial as to which village this land is located. According to the defendants oral evidence the land Faimonolima is located in the village of Tuanai whereas the documentary evidence from the Land Registry Office refers to this land as being located in the adjoining village of Leauva’a. When the Court inspected the land after the conclusion of the evidence on 26 May 2009 and whilst pending receipt of written submissions from counsel, it appeared that the disputed land is located in the village of Tuanai, as the defendants had testified, but very close to the boundary with the adjoining village of Leauva’a.
    
12. One of the main contentions for the defendants is that the land Faimonolima (the disputed land) was to be shared between Sulika their grandmother and William Hicks Jnr the plaintiffs’ father. However, the third party had conveyed the disputed land solely to William Hicks Jnr by deed of conveyance dated 27 September 1965. It is this deed of conveyance which is the foundation of the defendants’ causes of action in negligence, equitable fraud and mistake against the third party.
    
13. I must say that I find the documentary evidence upon which the defendants rely for their claim against the third party most suspicious that I reject their claim. The relevant document upon which the defendants rely is only a photocopy which is dated "January 30th 9". The year is obviously incomplete. It is unusual for an official document of a Ministry of Government or Government corporation, even if it is a photocopy, to be dated in such an incomplete way by showing a date, a month, and only part of the year. Secondly, the defendant Sesilia HIngston nee Hicks testified that the document in question together with the other documents she produced were photocopies of Public Trust Office records and were given to her by her deceased sister, but she does not know who gave those documents to her deceased sister. Mrs Hingston’s deceased sister was, of course, not available to testify.
    
14. What has caused much difficulty is that the file of the Public Trust Office from which the documents produced by Mrs Hingston may have been taken from has gone missing and cannot be located. This has severely handicapped the third party in its evidence. In the circumstances, it was not possible for the assistant Public Trustee Paniani Va’a to explain the circumstances under which the disputed land was conveyed in 1965 solely to William Hicks Jnr without including Sulika, the defendants’ grandmother. I do not suspect anyone of the present staff of the Public Trust Office. I prefer to say no more about this.
    
15. Be that as it may, the photocopied document upon which the defendants rely for saying that Sulika has a half share of the disputed land reads as follows in its first part:
    

January 30th 9"

"Mrs Sulita Hicks

APIA

Dear Madam,

"In response to your enquiry re the position of your husband’s Estate, I have pleasure in advising you as follows:

"Your husband left the following property, and to which you are entitled to a half share:

"Tualaiiga:	Area a little over 6 acres which was sold to J. Ah Mu for	£120
"(Name not clear):	This was a small place and was sold to Churchward for	10
"Luatuanua:	Land which you have taken over Valued at	70
"Faimonolima:	Land which you have taken over by yourself and your step-son Willie valued at	10
"Leauva’a:	Land bought by the Govt: for the total value of your husband’s Estate is	50
		------- £260

16. The document then appears to have been signed by the Public Trustee. Looking at that part of the photocopied document upon which the defendants rely for saying that their grandmother Sulika has a half share in the land Faimonolima, the disputed land, what immediately hits the eye is that it refers to the estate of "her husband". That would be John Hicks the husband of Sulika and not William Hicks Snr claimed by the defendants to have been the father of John Hicks. Yet in the written briefs of the plaintiff Josephine Hunt and the defendants there is no mention whatsoever of an estate of John Hicks but only the estate of William Hicks Snr. There was also no mention at all in the oral evidence that John Hicks owned any of the lands mentioned in the photocopied document upon which the defendants rely.
    
17. In fact in her own written brief of evidence, the defendant Mrs Hingston contradicts the above photocopied document. In paragraph 18 of her brief of evidence, Mrs Hingston says:
    

"From copies of the official Public Trust records that I hold, it is clear my grandmother Hulita Hicks and my father’s uncle William Hicks were to take half share of my great grandfather William Hick’s Estate".

18. This is a clear statement from Mrs Hingston that the estate in question was that of William Hicks Snr, not of her grandfather John Hicks. This is further confirmed by the deed of conveyance dated 11 March 1929 by which the Public Trustee as administrator of the estate of William Hicks Snr conveyed the land Luatonua or Luatuanua to Sulika alone. In other words the land Luatuanua was part of the estate of William Hicks Snr. What is said in the photocopied document that the land Luatuanua was part of the estate of Sulika’s husband is plainly wrong because William Hicks Snr was not the husband of Sulika.
    
19. The other thing that hits the eye when reading this photocopied document is the reference to "Willie" as a step-son of Sulika. All the evidence point to William Hicks Jnr as a son of William Hicks Snr. The defendants also claim in their evidence that William Hicks Jnr was a brother of their grandfather John Hicks. So William Hicks Jnr could not have been a step-son of Sulika. The term "step-son" suggests that William Hicks Jnr was a child of John Hicks, the husband of Sulika, from a different woman which is totally contrary to all the oral evidence that was placed before the Court.
    
20. Furthermore, the part I have cited from the said photocopied document is not only contradictory in itself but it is also inconsistent with the oral evidence given for the defendants. The document states that Sulika was entitled to a half share of the properties listed therein. That must include the land Luatuanua listed in the document. But the document then goes on to say that the land Luatuanua was "taken over" by Sulika herself. In other words she did not share the land Luatuanua with anyone else. The oral evidence given for the defendants is also clearly to the effect that the land Luatuanua was given exclusively to Sulika; she did not share it with anyone else. That is also confirmed by the deed of conveyance dated 11 March 1929 from the Public Trustee as the administrator of the estate of William Hicks Snr conveying the land Luatuanua to Sulika alone.
    
21. For those reasons, I reject the authenticity of the document upon which the defendants rely for saying that the disputed land was to be shared between Sulika and William Hicks Jnr. That means the factual foundation of the various causes of action against the third party disappears and with it must go the entire claim against the third party.
    
22. There is another reason why I am not prepared to accept the defendants claim against the third party. The allegations of negligence and equitable fraud made by the defendants against the third party are serious ones. But neither the third party nor the defendants could produce the whole Public Trust file on the estate of William Hicks Snr. In consequence, the Court does not have the full picture of why the third party conveyed the disputed land solely to William Hicks Jnr. In such circumstances, it would not be safe to conclude that the third party was negligent or tainted with equitable fraud or mistake when it conveyed the disputed land to William Hicks Jnr by deed of conveyance dated 23 September 1965. Negligence and equitable fraud, in particular, are serious allegations to be made against the trustee of an estate that the Court must exercise due caution before arriving at a conclusion that such allegations have been proved.
    
23. Counsel for the plaintiffs and the third party also submitted that given that the land Luatuanua which is about three and a half acres in area was conveyed by the third party solely to Sulika, the wife of John Hicks, by deed of conveyance dated 11 March 1929, it was only fair for the third party to convey the disputed land which is only about one third of an acre in area to William Hicks Jnr the undisputed natural son of William Hicks Snr. To do otherwise would be to give Sulika the widow of John Hicks, a disproportionate share of the estate of William Hicks Snr which would not be consistent with the requirements of the statutory law on succession in an intestacy that was applicable to Samoa at the material time.
    
24. In essence then, I cannot, on the evidence, accept the defendants’ claim that their grandmother Sulika was entitled to a half share of the disputed land or that the deed of conveyance dated 27 September 1965 from the third party to William Hicks Jnr was invalid. I also do not accept the defendants claim in fraud against the plaintiffs. Likewise, I reject the defendants claim against the third party in negligence, equitable fraud and mistake on the basis that I do not believe that the document upon which the defendants rely for their claim against the third party is authentic.
    
25. That leaves only the defendants claim to title by adverse possession. The remainder of this part of my judgment will focus on the evidence related to adverse possession.
    
26. According to the evidence given by the plaintiff Josephine Hunt (Josephine), a daughter of William Hicks Jnr, she was living with her parents and her two children at Togafu’afu’a on land owned by the Roman Catholic Church. She recalls that in 1952 Joseph Toni Hicks (Joseph Hicks), the father of the defendants and a son of John Hicks and Sulika came to her father and asked for permission to live on the disputed land. The reason given by Joseph Hicks was that the land on which he was staying with his family at Leifiifi at that time was needed by the Government for schools. The Government had offered to his family land at Tiapapata to relocate to but he did not want it.
    
27. Josephine said she was 25 years old in 1952 and was looking after her parents. When Joseph Hicks came to seek permission from her father to move to the disputed land, she was present with her mother. Her father refused to give permission to Joseph Hicks and told him to find somewhere else to stay.
    
28. Josephine also said that about two days later, Joseph Hicks came to Togafuafua again to see her father for permission to move to the disputed land. She and her mother were present. Joseph Hicks said to her father that he just wanted to move with his family to the disputed land on a temporary basis whilst he looked for another place close to his job to move to. Josephine said that her father asked Joseph Hicks about Tiapapata which had been offered by the Government for his family to relocate to but Joseph Hicks replied Tiapapata was too far out.
    
29. Josephine then said that at that time her mother cried and said to her father to have mercy on Joseph Hicks; he was saying he needed a place to move to temporarily whilst he looked for another place to move to. It was then that William Hicks Jnr gave permission to Joseph Hicks to move with his family to the disputed land.
    
30. The defendant Mrs Hingston and her brother and sisters who were called as witnesses for the defendants did not dispute that their family had been living at Leifiifi before they moved to the disputed land. They also did not dispute the reason why they were required to leave Leifiifi was because the Government needed that land to build schools.
    
31. Where the evidence given for the defendants strongly differs from the evidence given by Josephine is that the witnesses for the defendants testified that it was 1949 that their family moved to the disputed land. Some of the witnesses for the defendants including Mrs Hingston, her brother Tamiano Hicks and her sister Agnes Hicks also said that when their father Joseph Hicks was alive he never told them that he had sought and obtained permission from William Hicks Jnr for their family to live on the disputed land. They said that their father had always told them that the disputed land belongs to his mother Sulika.
    
32. After due consideration of this part of the evidence, I have no difficulty in concluding that the evidence given by Josephine is credible and reliable. Her evidence as to what transpired when Joseph Hicks approached her father twice for permission to live on the disputed land was detailed, precise and corroborated in parts by the evidence given for the defendants. Josephine was also 25 years old at the time and was at an age where a person would know and understand what was going on. On the other hand, in 1952 the defendant Mrs Hingston was 7 years old, the defence witness Tamiano Hicks was 5 years old, the defence witness Louisa Hicks was 3 years old, and the defence witness Agnes Hicks was about 18 years old. None of them was present when their father approached William Hicks Jnr twice for permission to live on the disputed land.
    
33. I therefore accept that in 1952, Joseph Hicks, the defendants’ father, sought and obtained permission from William Hicks Jnr, the father of the plaintiffs, to live on the disputed land on a temporary basis. It was also in 1952 and not 1949 that Joseph Hicks and his family started to occupy the disputed land.
    
34. According to the evidence of Josephine which I accept, at the time that Joseph Hicks and his family moved onto the disputed land, her father had pigs and a pig sty on the land and a man from the village of Leauva’a would go onto the disputed land to feed her father’s pigs. It would appear from the evidence that the pigs mentioned by Josephine did not remain for very long after Joseph Hicks and his family moved onto the disputed land.
    
35. Josephine also said that after Joseph Hicks and his family had been on the disputed land for some time, she recalls her father saying that he had asked Joseph Hicks as to when they were moving out of the land. Apparently, this was because Josephine’s father had given permission to Joseph Hicks to stay on the disputed land temporarily whilst he looks for another place for him and his family to move to.
    
36. Then by deed of conveyance dated 27 September 1965, the third party as the administrator of the estate of William Hicks Snr formally conveyed the disputed land to William Hicks Jnr. So it would appear that William Hicks Jnr when he gave permission in 1952 to Joseph Hicks to move onto the disputed land was only a beneficial owner of the land. He subsequently became the registered owner of the disputed land in 1965.
    
37. Then by deed of conveyance dated 8 December 1967, William Hicks Jnr gifted the disputed land to his wife and children including his daughter Josephine. On 16 August 1970, as the Court was advised by counsel for the plaintiffs, William Hicks Jnr passed away. At that time, Joseph Hicks and his family were still living on the disputed land.
    
38. According to the evidence of the defence witness Tamiano Hicks, as confirmed by the evidence of his sister Agnes Hicks, his father Joseph Hicks left for New Zealand in 1972 and he passed away in New Zealand on 18 March 1978. At that time, his family were still living on the disputed land. They have continued to live on the disputed land up to now.
    
39. After Vaai J had delivered his ruling on 23 August 2004 on an application for security for costs brought by the defendants in relation to a motion for removal of caveat by the plaintiffs, the plaintiffs brought their present action for an eviction order to have the defendants and their family removed from the disputed land.
    
40. In other words, the plaintiffs have brought their action for an eviction order after more than 52 years since Joseph Hicks and his family first occupied the disputed land in 1952, 37 years after the disputed land was gifted by William Hicks Jnr to his wife and the plaintiffs in 1967, and 34 years after William Hicks Jnr passed away in 1970. In the meantime, according to the witnesses for the defendants, the defendants and their family have been living on the disputed for four generations from 1952 up to now.
    
41. The disputed land is situated right on the road side of the main road from Apia to Faleolo International Airport. This is a relatively busy road as it is the main road from Apia to Faleolo International Airport. You can clearly see the disputed land as you go past on the main road. Josephine testified that she would see the disputed land when she goes past on the road as the land is right on the road side. However, during all this time neither Josephine nor any of the other plaintiffs had set foot on the disputed land even though they could not fail to see from the main road the developments the defendants and their family were doing on the land.
    
42. According to the evidence for the defendants, when they moved on to the disputed land, their father built a faleo’o (Samoan hut) for them to live in. Their father also planted crops like bananas, breadfruit and coconuts on the disputed land. There are still breadruit trees and coconut palms on the land.
    
43. It also appears from the evidence of some of the witnesses for the defendants that whilst their family were living on the disputed land, the family of J Ah Mu who had purchased the land Tualaiiga which had formed part of the estate of William Hicks Snr asked their father Joseph Hicks to relocate the grave of his father John Hicks who had been buried on the land Tualaiiga. Their father then relocated the remains of John Hicks and had them buried on the disputed land.
    
44. The defence witness Louisa Hicks, however, testified that both her grandfather John Hicks and William Hicks Snr were relocated from the land Tualaiiga and buried on the disputed land. She said that the graves of John Hicks and William Hicks Snr are in front of the European house which is presently on the disputed land and are close to the main road. Graves were seen in front of the European style house which is presently on the disputed land at the Court’s inspection of the disputed land.
    
45. The evidence given for the defendants, however, is not clear as to when the remains of John Hicks and those of William Hicks, as Louisa Hicks testified, were relocated to the disputed land.
    
46. The evidence given for the defendants also shows that whilst Joseph Hicks was alive, he and his family built a stone fence right around the boundaries of the disputed land including the boundary which abuts the main road. When the Court inspected the disputed land, there is in fact a conspicuous stone fence right around the disputed land and along its front boundary which is about ten feet from the main road. It is just not possible to miss seeing this stone fence where it abuts the road side as you go past on the main road. There is an opening at the front part of the stone fence which serves as the entrance to the disputed land. It is not clear from the evidence when this stone fence was built but it must have been built over a period of time as it is obviously not something which can be built in a day or even in a week or in a month.
    
47. It also appears from the evidence for the defendants that as time went by, the defendants father built a bigger Samoan house on the disputed land for his family to live in. It is not very clear from the evidence when that was done. However, the witness Louisa Hicks testified that she was born on 5 September 1949. She recalls that when her father built the bigger Samoan house for their family she was about 16 years old. So the bigger Samoan house must have been built about 1965.
    
48. The defence witness Agnes Hicks testified that a member of her family had also built a two bedroom European style house on the disputed land. When that member of her family migrated to New Zealand in 1979, Agnes Hicks said she and her children occupied that house. When she migrated to New Zealand in 1986 other members of her family who were still living on the disputed land occupied the house. It was not until cyclone Ofa at the beginning of 1990 that that house was destroyed.
    
49. Agnes Hicks further testified that when her son Anetelea died in 1983, he was buried on the disputed land. This was also confirmed by the witness Tamiano Hicks in his evidence.
    
50. Agnes Hicks also said that in 2001 her sister Rasela Filia nee Hicks, who is one of the defendants, built a four bedroom European house on the disputed land for her family. Rasela Filia and her children are still living in that house up to now. The house can be clearly seen from the main road.
    
51. During the Court’s inspection of the disputed land, a concrete foundation was also observed near the front boundary of the disputed land next to the main road. The defendant Mrs Hingston when asked by the Court about this concrete foundation said that it is the concrete foundation of a shop which her family had operated on the land. It was not clear from Mrs Hingston when that shop was built and when it ceased to exist.
    
52. All the witnesses for the defendants said that ever since they moved onto the disputed land they had not seen William Hicks Jnr or any member of his family, including the plaintiffs, on the land. When their father built houses and the stone fence and planted crops on the disputed land neither William Hicks Jnr nor any of the plaintiffs appeared or objected. Likewise when other members of their family built houses and a shop on the disputed land neither William Hicks Jnr nor any of the plaintiffs appeared or objected. When their father relocated the remains of his father and buried them on the disputed land and when the son of Agnes Hicks was buried on the land in 1983 no one from the family of William Hicks Jnr came and objected. The plaintiff Josephine said that she would only go past the disputed land without visiting it. So over all these years the defendants and their family have been living on the disputed land doing whatever they wanted on the land without interruption from the plaintiffs and their family until the present proceedings which were filed after the decision of Vaai J on 23 August 2004 on an application for security for costs by the defendants in relation to a motion for removal of caveat by the plaintiffs.
    
53. All the witnesses for the defendants also said that their father, when he was alive, had told them that the disputed land belonged to his mother Sulika. So they have been living on the disputed land believing that the land belonged to their father’s mother.
    
54. It also appears from the evidence of the witnesses for the defendants that they look upon the disputed land as their family homestead. Even though some of them have migrated overseas, they always stay on the disputed land when they come to Samoa as they consider this land to be the headquarters of their family because they all grew up on it. The defendant Rasela Filia nee Hicks has continued to live on the disputed land up to now.
    
55. It seems that the defendants’ family, like many Samoan families, live and do many things as a single unit and look upon the disputed land as the family’s land rather than land belonging to any particular member of the family. The Samoan concept of land, which is influenced by their philosophy of communal living and collective ownership, is different from the European concept of land which is individualistic. The doctrine of adverse possession, in its application to Samoa, should take into account that fact. This is why when those members of the plaintiffs family who have migrated overseas visit Samoa they would stay on the disputed land. And that is accepted by the members of the plaintiffs family who are residing permanently on the land.
    

Relevant provisions of the Limitation Act 1975

56. Section 9(2) of the Limitation Act 1975, in so far as relevant, provides:
    

"(2) No action shall be brought by any...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"

57. The proviso to s.9 (2), in so far as relevant, then provides that an action to recover any land may be brought at any time before the expiration of 12 years from the date on which the right of action accrued to some person.
    
58. 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".

59. 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 (hereinafter 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 principles

(a) Possession

60. As to what constitutes "possession" for the purpose of adverse possession, Slade J in Powell v McFarlane (1977) 38 P & CR 452 said at p.470:
    

"(1) In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land as being the person with the prima facie right to possession. The law will thus, without reluctance, ascribe possession either to the paper owner or to persons who can establish a title as claiming through the paper owner.

"(2) If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess (‘animus possidendi’)"

61. In J A Pye (Oxford) Ltd v Graham [2002] UKHL 30, Lord Browne-Wilkinson, after referring with approval to the above passage from Powell v McFarlane, said at para 40:
    

"[There] are two elements necessary for legal possession:

"1. a sufficient degree of physical custody and control (‘factual possession’)"

"2. an intention to exercise such custody and control on one’s own behalf and for one’s own benefit (‘intention to possess’)

(b) Factual possession

62. As to what is meant by "factual possession", Slade J in Powell v McFarlane (1977) 38 P & CR 452 said at pp 470-471:
    

"(3) Factual possession signified an appropriate degree of physical control. It must be a single and [exclusive] possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. 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...Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no one else has done so".

(c) Intention to possess

63. It is clear from Buckinghamshire County Council v Moran [1990] Ch 623 at 643 and J A Pye (Oxford) Ltd v Graham [2002] UKHL 30 at para 42 that the requisite intention to constitute adverse possession is an intention to possess and not an intention to own or even an intention to acquire ownership.
    
64. In JA Pye (Oxford) Ltd v Graham [2002] UKHL 30, Lord Browne-Wilkinson said in para 42:
    

"In the Moran case (1988) 86 LQR 472, 479 the trial Judge (Hoffman J) had pointed out that what is required is ‘not an intention to own or even an intention to acquire ownership but an intention to possess’. The Court of Appeal in that case [1990] Ch 623, 643 adopted this proposition which in my judgment is manifestly correct".

65. At para 43, Lord Browne-Wilkinson went on to say:
    

"Slade J [in Powell v McFarlane (1977) 38 P & CR 452] 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 so far as the processes of the law will allow".

66. What is required for the purpose of intention to exclude the world at large including the paper owner is an intention to possess and not an intention to own or even an intention to acquire ownership. Whether such an intention to possess exists in a particular case is a question of fact.
    
67. In Powell v McFarlane (1977) 38 P & CR 452, Slade J said at p. 471:
    

"What is really meant in my judgment, is that the animus possidendi involves the 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 the possessor, so far as is reasonably practicable and so far as the processes of law will allow"

68. But the animus possidendi of a person with factual possession must be clear and plain to the world at large. As Slade J went on in Powell v McFarlane to say at p. 472:
    

"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 Court will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner".

(d) Possession with the licence of the paper owner

69. It is well established that possession of land is never adverse if it is enjoyed with the licence or permission of the paper or true owner: Nelson Mackenzie v Sale Lamosi (1995) (C.P. 125/93; unreported judgment delivered on 5 July 1995); Atiifale Fiso v Reid [1996] WSCA 3; Jennings v Onesemo [2000] WSSC 26, Lily Cook v Tiresa Sauvao (2002) (unreported judgment of the Supreme Court); Board of Trustees of the Congregational Christian Church of Samoa v Pouvi [2003] WSSC 4; Tofaeono v Taulima [2007] WSSC 2; Public Trustee v Ulugia Laufili Nose [2009] WSSC 70.
    

(e) Implied licence

70. It is clear from Powell v McFarlane (1977) 38 P & CR 452 and J A Pye (Oxford) Ltd v Graham [2002] UKHL 30 that the principle of implied licence does not form part of the present law on adverse possession.
    
71. In Pye, Lord Browne-Wilkinson said at para 32:
    

"Slade J felt doubts whether, in the light of certain Court of Appeal judgments then binding on him, he could properly adhere to the view that he expressed. Decisions (for example Wallis’s Clayton Bay Holiday Camp Ltd v Shell-Mex and BP Ltd [1975 1 QB 94) appeared to hold that use of the land by a squatter which could have been sufficient to constitute possession in the ordinary sense of the word was not enough: it was said that such use by the squatter did not constitute ‘adverse possession’ which was required for the purposes of limitation unless the squatter’s use conflicted with the intentions of the paper title owner as to his present or future use of the disputed land. In those cases it was held that the use by the squatter was as a matter of law, to be treated as enjoyed with the implied consent of the paper owner. Not surprisingly, Slade J found this line of reasoning difficult to follow. It is hard to se how the intentions of the paper title owner (unless known to the squatter) can affect the intention of the squatter to possess the land. In my judgment, Slade J was right and the decision of the Court of Appeal in those cases wrong. In any event Parliament (on the advice of the Law Reform Committee) has intervened to reverse the principle of implied licence"

72. Further on in para 45, Lord Browne-Wilkinson said:
    

"The suggestion that the sufficiency of the possession can depend on the intention not of the squatter but of the true owner is heretical and wrong. It reflects an attempt to revive the pre-1833 concept of adverse possession requiring inconsistent user. Bramwell B’s heresy led directly to the heresy in the Wallis’s Clayton Bay line of cases to which I have referred, which heresy was abolished by statute".

(f) Transfer of land over which licence was granted

73. In Land Law in New Zealand (2004) vol 2, by Hinde McMorland and Sim, the learned authors state at para 18.014:
    

"Certain events are contrary to the essential nature of a licence, and their occurrence will determine any licence, whether bare or contractual. It is a fundamental characteristic of a licence that it cannot bind third parties so that any alienation, voluntary or involuntary, by the licensor of his or her interest must determine the licence automatically".

74. In Ashton v Australian Cruising Yacht Co Pty Ltd [2005] WASC 192, Hasluck J, in the Supreme Court of Western Australia, said at para 87:
    

"Counsel for the defendant referred to Coleman v Foster [1856] 1 H & N 36 where it was said by Pollock CB at 38 that ‘if a man gives a licence and then parts with the property over which the privilege is to be exercised, the licence is gone. A licence is a thing so evanescent that it cannot be transferred".

75. In Mazzuchelli v Mazzuchelli [2006] WASC 124, Hasluck J said at para 66:
    

"The licence arrangement...appears to be directed not to the creation of an interest in land, but to the continuance of the relationship between the plaintiff and the defendant as neighbouring landowners. It clearly depends upon the existence of that relationship and can be and will be revoked if the relationship is brought to an end: Coleman v Foster [1856] EngR 443; (1856) 1 H & N 37. If either party disposed of his land, it would be impossible to conclude (in the absence of any restrictive covenant) that the licence ran onwards".

76. In Di Napoli v New Beach Apartments Pty Ltd [2004] NSWSC 52, Young CJ in Equity said at para 20:
    

"If one accepts the evidence of the defendant’s witnesses that they had consent from the previous proprietor.., then as a matter law, that consent would cease to be operative if the licence was a bare licence or a contractual licence on the conveyance of the property to the present plaintiff... see Terunnanse v Terunnanse [1968] AC 1086, 1095, where Lord Devlin said just that when giving the judgment of the Privy Council".

77. In Clowers Developments (UK) Ltd v Walters [2005] EWHC 669, Hart J said at para 23:
    

"First, it was submitted that the effect in law of the transfer of the legal estate from Mayfair to Clowers Developments was to determine the licence as between Mayfair and Mrs Walters: this proposition is axiomatic and was supported by the authority of Lord Devlin delivering the opinion of the Board in Terunnanse v Terunnanse [1968] AC 1086 at 1095-1096".

78. In Hong Kong Kam Lam Koon Ltd v Realway Investment Ltd [2007] HKC 1037 Hon Lam J, in the High Court of Hong Kong, said at para 101:
    

"Counsel relied on Kung Wong Sau Hin v Sze To Chun Keung [1996] 2 HKC 616 at p.627. In that case, Le Pichon J (as she then was) was dealing with a bare licence. It was held that the principle of Coleman v Foster [1856] EngR 443; (1865) 1 H & N 37 was applicable:

"’ [A licence] conveys no interest whatever. If a man gives a licence and then parts with the property over which the privilege is to be exercised, the licence is gone’"

(g) Effect on a licence of the licensor’s death

79. In Terunnanse v Terunnanse [1968] AC 1086, Lord Devlin in delivering the judgment of the Privy Council in that case said at p.1095:
    

"A revocable licence is automatically determined by the death of the licensor or by the assignment of the land over which the licence is exercised".

80. In Ho Hang Wan v Ma Tin Cheung [1989] HKCA 293, Hunter J A in the Court of Appeal of Hong Kong said at p.8:
    

"Mr Robert Tang QC now accepts that...the law was correctly stated by Lord Devlin in Terunnanse v Terunnanse [1968] AC 1086 at p. 1095 where she said:

‘"A revocable licence is automatically determined by the death of the licensor’"

Discussion

(a) Adverse possession

81. I propose to consider the issue of adverse possession under two time periods, namely, from 1952 to 1967 and from 1967 to 2004. In doing so, I bear in mind that whether the two elements of legal possession, namely, factual possession and intention to possess, exist in a particular case are questions of fact.
    

(i) Period from 1952 to 1967

82. In 1952, Joseph Hicks sought and obtained permission from William Hicks Jnr for him and his family to stay temporarily on the disputed land whilst they find another place to move to. So when they moved onto the disputed land in 1952 they were not trespassers but licensees. The licence given by William Hicks Jnr was a bare licence.
    
83. Furthermore, when Joseph Hicks and his family moved onto the disputed land in 1952, William Hicks Jnr was still keeping his pigs on the land. So at that time, Joseph Hicks and his family were not in exclusive possession of the disputed land. In other words they did not have the requisite factual possession.
    
84. In those circumstances, it cannot be said that the limitation period of 12 years provided under s.9 (2) of the Limitation Act 1975 had started to run in favour of Joseph Hicks and his family in 1952.
    
85. There are then evidential difficulties in determining whether the limitation period could have started to run from within the period 1952 to 1967 and, if so, when exactly did the limitation period start to run from within that period of time.
    
86. In the first place, it is not clear from the evidence of the plaintiff Josephine when her father ceased to have his pigs on the disputed land. However, the evidence suggests that it was not very long after Joseph Hicks and his family moved onto the disputed land. When exactly did that happen must be the point in time that Joseph Hicks and his family first started to have exclusive possession of the disputed land. From that point in time, Joseph Hicks and his family have continued to remain in exclusive possession of the disputed land up to now. The evidence shows that William Hicks Jnr and the plaintiffs had not physically set foot on the disputed land ever since it was occupied by Joseph Hicks and his family in 1952.
    
87. The second evidential difficulty is that Joseph Hicks and his family were permitted in 1952 by the plaintiff’s father to stay on the land temporarily whilst they find another place to move to. By 1967, some 15 years later, when William Hicks Jnr gifted the disputed land by deed to his wife and children, Joseph Hicks and his family were still living on the land. The question which arises is whether at some point in time during this 15 years period from 1952 to 1967 Joseph Hicks and his family ceased to be licensees and became trespassers on the disputed land given that they were only permitted to stay temporarily on the land whilst they find another place to move to. And if there was such a point in time when Joseph Hicks and his family ceased to be licensees and became trespassers on the land, then when did it actually occur.
    
88. This second evidential difficulty is compounded by the fact that the plaintiff Josephine said in evidence that sometime after Joseph Hicks and his family had been staying on the disputed land, she recalls her father saying that he had asked Joseph Hicks as to when they were moving out of the disputed land. It is not clear from Josephine’s evidence when that happened. It is also not clear from the evidence what might have transpired between William Hicks Jnr and Joseph Hicks on that occasion as both of them have passed away.
    
89. The third evidential difficulty is that even though the witnesses for the defendants said that their father Joseph Hicks had built the stone fence which surrounds and encloses the disputed land up to today, none of them said when that was done. What is, however, clear is that Joseph Hicks and his wife, the defendant’s mother, left for New Zealand in 1972 and Joseph Hicks died in New Zealand in 1978. So the stone fence must have been built by Joseph Hicks before he left in 1972 for New Zealand where he died in 1978. But that does not show whether the stone fence was built between 1952 and 1967 or after 1967 but before Joseph Hicks left for New Zealand in 1972.
    
90. There is also evidence that Joseph Hicks relocated the grave of his father which was on the land Tualaiiga to the disputed land. However, it is not clear when that was done.
    
91. Apart from those evidential uncertainties, there is also evidence which was given by the defence witness Louisa Hicks which suggests that her father Joseph Hicks built a bigger Samoan house for their family in 1965. That must have been the second house Joseph Hicks built on the disputed land, apart from the faleo’o he had built in 1952 when he and his family first moved onto the land.
    
92. There is also evidence given by the defence witnesses that their father planted corps like bananas, breadfruit, and coconuts on the disputed land when they first moved onto it.
    
93. There is no doubt Joseph Hicks and his family had enjoyed exclusive possession of the disputed land from the time William Hicks Jnr ceased to keep his pigs on the land. From that time onwards they had factual possession of the disputed land which is the first of the two elements of legal possession as pointed out in Powell v McFarlane (1977) 38 P & CR 452 per Slade J at p. 470; J A Pye (Oxford) Ltd v Graham [2002] UKHL 30 per Lord Browne-Wilkinson at para. 40.
    
94. However, I am not sufficiently confident on the evidence that the defendants have shown that at any particular point in time during the period between 1952 and 1967 their father Joseph Hicks had the requisite intention to possess (animus possidendi) which is the second of the two elements for legal possession as pointed out in Powell v McFarlane (1977) 38 P & CR 452 per Slade J at p. 470; J A Pye (Oxford) Ltd v Graham [2002] UKGHL 30 per Lord Browne-Wilkinson at para 40. The onus of proof lies on the party who is claiming title to land by adverse possession to prove his claim and the standard of proof is on the balance of probabilities.
    
95. There is a measure of certainty that the second and bigger Samoan house was built in or about 1965 and that Joseph Hicks planted crops on the disputed land. However, in the circumstances of this case, I am not satisfied from those two facts alone that Joseph Hicks had the requisite intention to possess (animus possidendi) which involves the intention in one’s own name and on one’s own behalf to exclude from the disputed land the world at large including William Hicks Jnr. Clear and affirmative evidence is required to make it perfectly plain to the world at large that Joseph Hicks had the necessary animus possidendi: Powell v McFarlane (supra) at p 472.
    
96. An important item of evidence in relation to the issue of animus possidendi, is the stone fence enclosing the disputed land. But it is not clear from the evidence when exactly did Joseph Hicks build that stone fence.
    
97. There is one other matter I wish to refer to in this connection. In 1952, the third party, the Public Trustee, was still the administrator of the estate of William Hicks Snr which had been partially administered. It was not until 1965 that the disputed land which had formed part of the estate of William Hicks Snr was conveyed by the third party to William Hicks Jnr. It was, therefore, submitted on behalf of the defendants that, at the material time, William Hicks Jnr was only a beneficial owner of the disputed land and had no authority to give permission to Joseph Hicks to stay on the land as the third party was still the administrator of the estate of William Hicks Snr.
    
98. Whether or not that submission is correct, the fact that Joseph Hicks had to approach William Hicks Jnr twice for permission to move onto the disputed land temporarily whilst he looked for another place to move to, shows that Joseph Hicks did not at that time have the requisite intention to possess, that is, the intention n his own name and on his own behalf to exclude the world at large, including William Hicks Jnr, from the disputed land.
    
99. Furthermore, when Joseph Hicks and his family moved onto the disputed land, William Hicks Jnr was still keeping his pigs on the land. There is no evidence that Joseph Hicks removed the pigs from the disputed land so as to show that he had the necessary intention to exclude William Hicks Jnr from the land.
    

(b) Period from 1967 to 2004

100. By deed dated 8 December 1967, William Hicks Jnr gifted the disputed land to his wife and his children, the plaintiffs. If, therefore, Joseph Hicks and his family were still occupying the disputed land up to 1967 by licence given by William Hicks Jnr, that licence must have come to an end by the transfer of the disputed land by William Hicks Jnr to his wife and the plaintiffs: Coleman v Foster [1856] 1 H & N 36 at 38; Terunnanse v Terunnanse [1968] AC 101086. In other words, if by 1967 Joseph Hicks and his family were still licensees on the disputed land, the transfer of the disputed land by William Hicks Jnr to his wife and children brought to an end any licence given by William Hicks Jnr and made Joseph Hicks and his family trespassers by their continuing to remain on the land.
     
101. It was submitted for the plaintiffs that since 1967, after the disputed land was transferred by William Hicks Jnr to his wife and the plaintiffs, Joseph Hicks and his family must have continued to occupy the land by the implied licence of the plaintiffs. However, as it was pointed out in J A Pye (Oxford) Ltd v Graham [2002] UKHL 30, para 32 by Lord Browne-Wilkinson, the principle of implied licence is heretical and wrong and does not form part of the law on adverse possession. The principle of implied licence has also been reversed by statute in England.
     
102. There is also no evidence to show that the plaintiffs agreed by implication to allow Joseph Hicks and his family to continue their occupation of the disputed land after the disputed land was transferred to the plaintiffs and their mother. What happened was that the plaintiffs simply did nothing about the disputed land or Joseph Hicks and his family who were still occupying and using the land the way they wanted. They had never even met or talked with Joseph Hicks or the defendants. There was no way the defendants could have known what was in the minds of the plaintiffs. So the plaintiffs state of mind, if indeed they consented by implication, could not have impacted on the defendants intention to possess the land.
     
103. If by any chance, however, the licence given by William Hicks Jnr to Joseph Hicks survived the transfer of the disputed land to the plaintiffs and their mother, then surely that licence was automatically determined by the death of William Hicks Jnr in 1970: Terunnanse v Terunnanse [1968] AC 1086 at pp 1095-1096.
     
104. The evidence also shows that the disputed land is about one third of an acre in area. So it is not a very large area. In or about 1965, Joseph Hicks built a second and bigger Samoan house on the land. At the same time crops grown by Joseph Hicks were still growing on parts of the land. Joseph Hicks also built a stone fence around the boundaries of the disputed land thus enclosing the land even though there is an opening at the front of the fence which serves as an entrance onto the land. Even though it is not clear when exactly was the stone fence built, it must have been before Joseph Hicks left for New Zealand in 1972.
     
105. Then prior to 1979, a member of Joseph Hicks family built a two bedroom European style house on the disputed land. At the same time the Samoan house built in 1965 was still on the land. The two bedroom European style house remained on the land until it was destroyed by cyclone Ofa at the beginning of 1990. Then in 1983 when a son of the defence witness Agnes Hicks died and he was buried on the disputed land. His grave was in addition to the graves of William Hicks Snr and the father of Joseph Hicks which had been relocated from the land Tualaiiga to the disputed land.
     
106. Given the area of the disputed land which is one third of an acre, it would appear that at least from about 1979 or 1983, the whole of the land was occupied by Joseph Hicks and his family. And the disputed land is right on the side of the main road from Apia to Faleolo International Airport which is a relatively busy road. Anyone going past on the main road to the Airport would not fail to see the disputed land and what was being done on it. In fact the plaintiff Josephine said in her evidence that she would go past on the main road and look at the disputed land. She could not have failed to see the structures built on the disputed land and the cultivation on it. Yet none of the plaintiffs or their father when he was alive ever set foot on the land or objected to what Joseph Hicks and his family were doing on the land over all these many years.
     
107. Then in 2001 the defendant Rasela Filia nee Hicks built a four bedroom European style house on the disputed land. Again the plaintiffs did not object or appear on the land. There is also a concrete foundation on the front part of the disputed land next to the main road which shows that there was a shop built and operated on that site. Again the plaintiffs did not object to that shop.
     
108. Then sometime after the decision by Vaai J which was delivered on 23 August 2004, the plaintiffs brought their action for an eviction order to remove the defendants from the disputed land.
     
109. Looking at the whole of the evidence, I am of the clear view that Joseph Hicks and the plaintiffs had the requisite factual possession and intention to posses the disputed either from 1967, 1970, or 1972. Whichever of those three years you would pick, would be the time from which the limitation period of 12 years had started to run. By any count, it is obvious that the limitation period had long expired before the plaintiffs brought their action for an eviction order. In other words, the plaintiffs action for recovery of the disputed is time barred.
     
110. I therefore, conclude that the defendants have acquired title to the disputed land by adverse possession. The title of the plaintiffs and their mother to the disputed land has been extinguished.
     

(b) Plaintiffs’ action for eviction order

111. Given the conclusion I have reached on the defendants counterclaim to title to the disputed land by adverse possession, the plaintiffs’ action for an eviction order cannot succeed.
     

(c) Defendants counterclaim in fraud against the plaintiffs

112. I am not satisfied to the required standard of proof that the defendants have made out their counterclaim in fraud against the plaintiffs.
     
113. As I have already pointed out, at one stage of the trial I was inclined to disbelieve the evidence for the defendants that their grandfather John Hicks was a natural son of William Hicks Snr. However, at the end of the day after consideration of the evidence, I have doubts, whether John Hicks the defendants’ grandfather was a natural son of William Hicks Snr or not. Therefore I cannot say that the plaintiff Josephine was being fraudulent or dishonest in what she said that the grandfather of the defendants was not a natural son of William Hicks Snr.
     
114. Furthermore, I have already pointed out that I reject the authenticity of the photocopied document upon which the defendants rely for saying that the disputed land, as part of the estate of William Hicks Snr, was to be shared between their grandmother Sulika and the plaintiffs father Hicks Jnr.
     

(d) Claim against the third party in negligence, equitable fraud and mistake

115. As I have rejected the photocopied document which is essentially the factual foundation of the defendants claim against the third party, that claim cannot succeed.
     

116. Conclusions

1. The plaintiffs claim for an eviction order to remove the defendants from the disputed land is dismissed.
   
2. The defendants counterclaim in fraud against the plaintiffs is dismissed.
   
3. The defendants counterclaim for title to the disputed land by adverse possession succeeds and the plaintiffs are ordered to transfer the disputed land to the defendants and the children of Joseph Toni Hicks deceased within 21 days.
   
4. The defendants claim against the third party is dismissed in its entirety.
   
5. Counsel to file submissions as to costs in 10 days if the parties cannot agree as to costs.
   

CHIEF JUSTICE

Solicitors
Fepuleai & Roma Law Firm for plaintiffs
Woodroffe Law Firm for defendants
Vaai Lawyers for third party