Voight v Taala [2010] WSSC 186 (4 June 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

CP.145/06

BETWEEN:

RAYMOND VOIGHT of Pesega, Businessman.
Plaintiff

AND:

BABSY TAALA and all the heirs of FEILOAI MAAE.
Defendants

Counsels: Mr TRS Toailoa for the plaintiff
Mrs R. Drake for the defendants

Judgment: 4 June 2010

JUDGMENT OF NELSON J.

[1] These proceedings concern a parcel of freehold land at Pesega comprising an area of 6a-3r-15.8p. The land was originally registered in the Samoa Land Register on 21 July 1921 in Volume 1, Folio 212 in the names of "Jane Johnson and Fredrich Hunt in equal shares". It is common ground that these were the children of Emma Hunt, the owner of the land. Jane Johnson became Jane Voight by marriage and the plaintiff is the son of her son Walter Voight. Fredrich Hunt had no heirs.

[2] It is also common ground that Emma Hunt cohabited with one Memea Taliafi a Samoan matai. Memea had a daughter Feiloai from another relationship and Feiloai took care of Emma Hunt who was blind. After first Memea and then Emma Hunt died, Feiloai remained on the land at Pesega and all her children were born thereon including Dolly Taala the mother of the first named defendant Babsy Taala.

[3] By her will dated 7 March 1952, Jane Voight provided for her "share in the Pesega land and house (Land Register Volume 1 Folio 212) to go to my children" including Walter the plaintiffs father, with the proviso "that the Samoan woman Feiloai now looking after the Pesega property be allowed to stay there during her lifetime". This permission was reiterated in a document both in English and Samoan dated 10 March 1952 signed by Jane Voight and witnessed by the plaintiffs father which states:

"TO WHOM IT MAY CONCERN:

This is to certify that I have this day given my permission for FEILOA'I MA'AE (female) of Pesega, to reside on that portion of my property in Pesega which I have duly pointed out to her together with my son Walter, to live thereon as long as she lives and to use all crops and fruits off the said portion of the land for her enjoyment to the end of her days.

At death of the said Feiloa'i Ma'ae the foregoing conditions and my consent shall forthwith cease.

Given at Pesega, Upolu this 10th day of March 1952.

(sgd) : (Jane Voigt)

Witness: (W. Voigt)

I SOO SE TASI E TATAU AI:

O le fa'amaoni lenei, o le aso ua ou ioe ai ma ua ou fa'atagaina ai Feiloa'i Ma'ae (tama'ita'i) i Pesega, e alaala pea i le vaega o lo'u fanua i Pesega ua uma ona ma fa'asinoina fa'atasi iai ma la'u tama o Walter, ia mau ai pea ia i lena vaega o le fanua i aso uma o lona soifua ma fa'aaoga e ia fua uma o lona lau'ele'ele mai lena lava vaega o le fanua mo lona soifua ma le ola maloloina lelei se'ia o'o lava i lona toe itula.

Pe a maliu lenei tama'ita'i o Feiloa'i Ma'ae ona fa'ai'uina ai fo'i loa lea o lenei tu'utu'uga ma toe soloia ai lenei fa'atagaina o ia.

Ua tusia i Pesega, Upolu i le aso 10 lenei o Mati 1952.

(sainia) (Jane Voigt)

Molimau: (W. Voigt)"

[4] There was some challenge in cross examination to the validity of this document as only a copy was produced into evidence as Exhibit "P-3" for the plaintiff. But after closely examining the signatures I am satisfied that although it is signed differently to the will of Jane Voight, the handwriting is the same (the "V" and "T" in "Voight", see also sloping of the "J" in "Jane" compared to the "V" and "T" in "W. Voight" and the different nature of the witnesses handwriting). I am accordingly satisfied "P-3" was executed by Jane and not her son Walter. The document is also consistent with Janes will dated 3 days earlier signed in front of two independent witnesses.

[5] Over the years the evidence seems to establish that by and large the plaintiff and the children of Jane Voight occupied the western part of the property and Feiloai and her children the eastern part where they also grew their plantations and crops. This is probably in accordance with what is recorded in Exhibit "P-3" as the area pointed out to Feiloai to continue to reside upon. Over the years both parties have also built structures on their respective parts of the land and lived in reasonable harmony until recently.

[6] According to the plaintiff a few months after the death of Feiloai the exact date of which is not ascertainable from the evidence but seems to be around late 1990, he established with the defendants mother Dolly Taala the conditions upon which she and her family were permitted to continue residing upon the land. These conditions are referred to in his letter dated 29 January 1991, Exhibit "P-4" for the plaintiff given to Mrs Dolly Taala. It is apparent from "P-4" that the defendants mother had breached some of the conditions of her occupation leading to the letter which in effect is a one-year notice to the defendants family to quit. Only some of the defendants witnesses being siblings of Babsy Taala admitted in their evidence to knowledge of Exhibit "P-4" but all were in agreement that the defendants did not immediately accept or comply with it. However their mother obviously received this correspondence. The evidence shows she consulted a lawyer who replied to the plaintiff by letter dated 23 January 1992. This is the letter from K. Sapolu as lawyer for Dolly Taala exhibited as "P-15" for the plaintiff.

[7] That correspondence professes ignorance of the licence to occupy granted to Feiloai by Jane Voight but then goes on to accept it because it requests an extension of the licence to Mrs Taala for the remainder of her elderly life and also states "that almost all of her children are living overseas and none of her children has any intention to live on the land". This is consistent with the evidence of the defendant Babsy Taalas sibling Hans Taala who now lives in Hawaii and who testified as to intermittent visits to Samoa after he left the property as a 21 year old in June 1970 and also Fofoga Taala who lives in Saleimoa and who said she left the land after Dolly died in 2000, taking with them their house which had been erected on the property but which they dismantled, and Helen Taala who now lives partly on the land and partly at Siusega with her husband but whom had lived on the land full time previously with Fofoga and Babsy and some cousins. Of these defence witnesses only Babsy currently completely resides on the land and his evidence was he had left the land in 1998 but returned to it in 2000 and has continued to reside there ever since more particularly after his mother Dollys death in 2000.

[8] The plaintiffs oral evidence was that about October 1991 Mrs Dolly Taala had come to see him asking permission to continue to reside on the land until her death. He consulted the other beneficiaries of his grandmothers estate and because they agreed, he wrote to Mrs Taala by letter dated 7 February 1992, Exhibit "P-5" for the plaintiff and in that correspondence noted the advanced age of Mrs Taala and "that almost all your children have left to have their own families and that you only want some place to live" and also noting their close relationship. He advised of the consent of the beneficiaries to her continuing to occupy the area their houses were located upon and advising of the other terms and conditions of that consent. This correspondence made it clear the extension was only however in respect of Mrs Taalas lifetime and that her family were required to vacate the land within 30 days of her death. This correspondence like Exhibit "P-4" was copied to the children of Feiloai including one Babsy Maae of New Zealand although it is not clear if this is the same person as the first named defendant, Babsy Taala of Apia.

[9] The plaintiff testified further that these conditions were not adhered to in many ways and after Mrs Taala passed away in 2000, her daughter Fofoga and her husband Brice and their children continued occupying the land. By then the plaintiff had been appointed administrator of the land pursuant to Letters of Administration granted on 11 July 1997 in respect of his grandmother Jane Voights will of 1952. By virtue of these letters a transmission purporting to vest title over the whole of the land in the plaintiff was registered against the land title on 6 March 1998. A new entry was then created in the Samoa Land Register at Volume 36 Folio 156 recording the transmission but noting the owner as being not Jane Voight and her brother Fredrich Hunt as owners in equal shares but merely noted the owners as being "Jane Johnson aka Jane Voight and Fredrich Hunt". The effect of this registration will be discussed later.

[10] As administrator of the estate, the plaintiff through his solicitor issued eviction notices to Fofoga and her family by letters dated 23 October 2000, 9 April 2002, 23 April 2002 and 23 May 2002. Eventually Fofoga and her family left taking with them their buildings situated at the rear of the property but leaving the original structure at the front of the property that was previously occupied by Feiloai and her husband Maae.

[11] Fofoga in her evidence confirmed this and said at the time, the front building was occupied by the first named defendant and their sister Helen. Because of this the plaintiff issued further eviction letters dated 1 April 2003, 2 May 2003 and 3 August 2005 through his solicitor to the first named defendant. The last letter confirms as did the evidence of the plaintiff that in 2005, the first named defendant refused to obey these eviction notices and constructed a second building on the land at the rear thereof in place of Fofogas building and that he took the view as stated by him in his evidence that the plaintiffs permission was no longer required by their family. It was the defendants view that the title of the plaintiff and their side of the family had ceased with Dolly and since that time, they have not had to acknowledge or recognize such title.

Analysis:

[12] The evidence establishes certain matters to the courts satisfaction and where the oral evidence of the parties conflicts with the written, I prefer the view that the written documentation more truly represents what actually transpired in this case. The fact that the defendants have done nothing in writing to contradict the lengthy trail of correspondence from the plaintiff only reinforces the plaintiffs case and the one document that did emanate from the defendants, Exhibit "P-15" being the letter from Mrs Taalas lawyer dated 23 January 1992 confirms the evidence for the plaintiff.

[13] The real question is the legal effect of these various matters and I will deal with this chronologically.

[14] It is clear that the original owner Emma Hunt was seised of an estate in fee simple over the entirety of the land. Howsoever this was done, the land was then bequeathed from her to her children Jane Johnson and Fredrich Hunt "in equal shares". This made it at law a tenancy in common in equal shares. See Hinde, McMorland and Sim (1979) Vol. 2 para. 9.038:

"A joint tenancy arises whenever land is transferred inter vivos or devised by will to two or more persons without any words to show that they are to take distinct and separate shares or – to use the technical term – without "words of severance". Thus, if a parcel of land is transferred "to A and B" without the addition of any explanatory words, a joint tenancy is created. By contrast, if a transfer "to A and B equally" or "to A and B in equal shares" is registered the result is the creation of a tenancy in common, not a joint tenancy."

[15] Jane Johnson became Jane Voight by marriage and she had a number of children, one of whom was the plaintiffs father Walter. Her brother Fredrich Hunt according to the evidence had no heirs or partner and as Fredrich and Jane appear to be the only two children of Emma Hunt, his equal share would devolve by law to his sister Jane Johnson aka Jane Voight.

[16] In any event, it is a well recognized principle of law that in the case of both a tenancy in common and joint tenancy at law and in equity, each owner is entitled concurrently with the other to possession, use and enjoyment of the entirety of a piece of land and neither can turn out the other. See Bull v Bull [1955] 1 QB 234, 237 and 238 where the court said:

"The rights of equitable tenants in common as between themselves have never, as far as I know, been defined. But there is plenty of authority about the rights of legal owners in common. Each of them is entitled to the possession of the land and to the use and enjoyment of it in a proper manner. Neither can turn out the other; but if one of them should take more than his proper share the injured party can bring an action for an account. If one of them should go so far as to oust the other he is guilty of a trespass: see Jacobs v Seward (1872) L.R. 5 H.L.464. Such being the rights of legal tenants, I think that the rights of equitable owners in common are the same, save only for such difference as are necessarily consequent on the interest being equitable and not legal."

(Cited with approval by this court in Ching v Elisara [2000] WSSC 40).

[17] The effect of this is that Jane Voight or the administrator of her estate would be legally entitled to possession, use and enjoyment not only of their part but of the whole of the land notwithstanding the status of Jane Voight as a tenant in common of an undivided share. The licence granted by Jane Voight during her lifetime to Feiloai is therefore a valid grant irrespective of the part of the land designated for Feiloais occupation and irrespective of the fact that Jane Voights will recognizes that she only had a "share in the Pesega land." Jane Voight was exercising her rights to use of the land as a surviving tenant in common as the evidence suggested that Fredrich predeceased her. As outlined above in any event she would be the ex necessitate rei beneficial owner of the whole of the land given that her only other sibling Fredrich Hunt had no issue or heirs.

[18] That what was granted was a licence is clear because Feiloai was not made a title holder to the property or a beneficiary by either Emma Hunt who she cared for or her daughter Jane Voight. Upon Jane Voights death and pursuant to her will this crystallized into a life interest determinable on her death.

[19] Following her death, the occupation by Dolly Taala and her children continued because of a further licence granted by the estate beneficiaries as represented by the plaintiff who exercised these powers on behalf of all the beneficiaries, most of whom were residing overseas. This accords with the plaintiffs evidence that as from the earliest days they occupied the western part of the property, a portion they continue to occupy. This licence was subject to a number of terms and conditions which I am satisfied Mrs Taala was made well aware of as spelt out in Exhibit "P-5" the letter of 7 February 1992. One of these conditions was that the license was terminable on the death of Mrs Taala which occurred in 2000.

[20] The subsequent history of this matter consisted essentially of efforts by the plaintiff to remove the children of Dolly Taala from the land as they no longer had the consent of the beneficiaries to reside on the property. The failure of the defendants to heed these efforts or recognize the plaintiff or to negotiate the matter with the legal representative of the true heirs of the property has led to the present court proceedings.

[21] The erroneous transmission of 1 December 1997 does not alter the plaintiffs ability to deal with the land. As indicated previously the evidence indicated Fredrich Hunt had no heirs or other siblings and the plaintiff was appointed administrator of Janes Estate by Letters of Administration from the Supreme Court in 1997. There is no suggestion there was any error in relation to that process but the error comes about in the actual transmission which purported to convey the title over the entirety of the land whereas Jane Voight was only entitled as matters then stood to co-ownership of the land as a tenant in common in equal shares. Steps should have been taken to resolve the estate of her co-owner brother Fredrich Hunt by appointing the plaintiff administrator of that estate as well before a transmission in respect of the whole of the land could properly be made. I accept the plaintiffs evidence however that at all material times he was not the appointed administrator of the Fredrich Hunt estate but was acting to protect the interests of the Fredrich Hunt estate.

[22] It is trite law that one cannot convey a better title than one enjoys and the transmission is therefore void to the extent that it purports to transfer title over the whole property but it is valid insofar as it transmits title of Jane Voights share in the land to the plaintiff. A share that as indicated above entitled the plaintiff to exercise rights of possession, use and enjoyment in respect of the entirety of the land and not just to Jane Voights share thereof.

[23] The mis-registration in the new title is also subject to the same restriction namely that it cannot purport to confer a better title than what was previously registered. In this regard it is to be noted that the new volume and folio is a "continuation of Volume 1 Folio 212" and that Volume 36 Folio 156 is as recorded in the Land Register "Not to be quoted as a title reference". These are all indicators that if there be doubt as to the true position reference should be made to the original registration which shows Jane Voight and Fredrich Hunt as co-owners in equal shares and not as joint tenants as the new registration implied. There are the hazards of a deeds system. But I note in passing that even if I am incorrect and this were a joint tenancy, that would not assist the defendants either as the evidence suggests Fredrich Hunt pre-deceased his only other sibling Jane Voight and as such his share would have devolved by operation of law completely to her as the surviving joint tenant. A share which would accordingly merge with the title of the whole and in respect of which the plaintiff was entitled to take out Letters of Administration.

Defendants arguments:

[24] The defendants argue essentially that immediately upon the death of Feiloai which appears as I have stated to be around late 1990 as best as I can ascertain, her children became trespassers on the land. A status that continues to this day and because the plaintiffs Letters of Administration was only granted in 1997 and not in 1992 and because the "P-5" licence to Mrs Taala was given in 1992, the plaintiff had no authority in 1992 to act on behalf of the Jane Voight estate or to grant the licence "P-5" purports to grant. That licence therefore being invalid, a basis for a claim by the defendants of acquisition of title by virtue of adverse possession arises.

[25] I accept that at the death of Feiloai, her children did become trespassers. That indeed is why the plaintiff issued the "P-4" eviction notice but I do not agree that at the time, the plaintiff lacked the authority to do this. Perhaps in law he lacked formal legal status as he was not then appointed administrator of his grandmothers estate but he was acting as a representative of the estate beneficiaries: see the last paragraph of "P-4". His correspondence was copied to the other beneficiaries of the estate. In the absence of any heirs to the estate of Fredrich Hunt, a court of equity must recognize that a representative of the then surviving beneficial owners has the capacity to deal with estate matters pending the appointment of a legal representative of the estate. I cannot accept that the plaintiff lacked legal authority to act on behalf of the estate for the protection of the estate properties.

[26] Accordingly the licence granted by the plaintiff with the approval of the then living beneficiaries by correspondence copied to them is a grant of licence this court must recognize. To hold otherwise would mean that the beneficiaries of any estate would be powerless to deal with or protect an estate asset or an estate property until and unless an administrator was duly appointed. This is the essence of the doctrine of relation back: See generally Halsburys Laws of England Fourth Edition paragraphs 735 – 737.

[27] That being the case there is no basis upon which a claim for adverse possession can be founded because adverse possession cannot arise where possession was originally acquired by licence of the registered or true owner, in this case the estate beneficiaries. A recent example of the application of this principle is Public Trustee v Tamotu [ 2010] WSSC 68.

[28] The defendants face a further hurdle in their claim of acquisition of title by adverse possession and that is this: it is difficult to accept the assertion by members of the defendants family that they were unaware their presence on the land was by virtue of a licence originally granted by first Jane Voight and subsequently by the plaintiff. The relationship between a Samoan and his land is as fundamental as blood to bone. The one nurtures and cradles the other. All Samoans are aware from whence they came and from whom and knowledge of land is an intricate part of this process. None of us are ignorant of the status of the piece of land that we reside and live upon and which our family has occupied for any period of time.

[29] The evidence that has been called in this regard is as follows:

Hans Taala who said he was born on the land, he is aware of the family genealogy and that he knew of "P-4" but did not know of the "P-5" licence to his mother;

Fofoga Taala who said she was born on the land, did not know of "P-4" or "P-5" but after her mother Dollys death she received some of the plaintiffs letters to her and her husband. They eventually left the land in September 2002. Not she says because of the plaintiffs letters but for other reasons and in leaving she took their building with them;

Helen Taala who said she lived on the land but now divides her time between the land and her husbands family at Siusega. She knew only of "P-4" not of "P-5";

Babsy Taala who has lived most of his life on the land and who said he knew of "P-4" because he was the one who received the letter and gave it to his mother who advised him to "keep the peace". He also testified he did not know of the "P-5" licence to his mother or of his mother seeing a lawyer and that he received but ignored the other letters from the plaintiff and his lawyer. And when questioned by the plaintiff in 2005 about his re-building the second building he told the plaintiff the days of requiring his permission were over.

[30] This evidence shows the defendants family were aware as far back as 1991 and "P-4" of the plaintiffs claims and that their right to occupy the land was being questioned. It is possible that their mother may not have told them the full story or told them everything but I doubt it. Whatever the case may be they certainly knew their occupation was under threat and they chose to ignore the plaintiffs claims and in Babsys case to build in spite of them.

[31] The law of adverse possession is clear. Section 10(1) of the Limitation Act refers to the claimant being in possession of the land claimed and his being dispossessed or discontinuing his possession thereof. Section 14(1) talks of the land being in possession of someone in whose favour the period of limitation can run. The case law reinforces the requirement of ouster of possession and of discontinuance of possession by the true owner. As the Chief Justice said in the Supreme Court in Nelson Mackenzie Ltd v Lamosi (unreported) 5 July 1995:

"A person claiming possessory title to land through adverse possession or relying on adverse possession as a defence must show that he had possession of the land through dispossession of or discontinuance of possession by the real owner."

And whether this has occurred is a matter of fact to be determined from the circumstances of each case, the onus of proof being on the claimants (Tofaeono v Taulima [2007] WSSC 2).

[32] Here, it cannot be said that the true owners of the property have been dispossessed or have discontinued possession. The defendants claim of adverse possession can only run from Feiloai's death around late 1990 but their own testimony establishes that as at that time, the plaintiff as a representative of the claimed owners of the land was asserting rights of possession over the land and was in fact seeking to physically dispossess them. There is no evidence that the true owners at this or any other subsequent time relinquished possession to the defendants or were effectively dispossessed in law by the defendants. The evidence is that the owners had granted a possessory licence in respect of the defendants ancestor Feiloai that they subsequently extended to her daughter Mrs Taala and when Mrs Taala died in 2000, efforts were made by the owners to evict the members of the defendants family then resident on the land. These were successful in relation to Fofoga who eventually left taking her building rather than leaving it for her family which is some evidence that she recognized there was merit in the plaintiffs claims. But these efforts were not successful as against the first named defendant and his sister Helen and their respective families. They continued to reside on the land hence these proceedings.

[33] This is not a case where the true owners had sat back and done nothing over the years in the face of open and manifest physical possession by someone else. It is a case of the true owners continuing to assert rights of ownership over the years which the defendants have refused to address or deal with. I have no doubt that the relief sought by the plaintiffs should be granted and the relief sought should be granted in respect of the whole of the land notwithstanding that the plaintiff has not formally been appointed administrator of the Fredrich Hunt estate.

Decision:

[34] Accordingly the claim succeeds. The defendants are ordered to vacate the estate land within 60 days hereof. The defendants counter claim based on adverse possession is dismissed. The plaintiff is also entitled to costs. I leave that matter to counsels to agree upon a quantum but failing agreement the matter can be referred back to me.

Ancilliary issues:

[35] For completeness I deal with defence counsels objection to the admissibility of certain documentation adduced at the trial. Firstly Exhibit "P-5" on the basis that it was not disclosed in the plaintiffs affidavit of discovery. This was conceded by plaintiffs counsel who explained it as an oversight on his part but he argued for admissibility based on section 27 of the Evidence Ordinance 1961 which provides:

"27. Documentary evidence in civil cases - (1) In any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied, that is to say-

(a) If the maker of the statement either-

(i) Had personal knowledge of the matters dealt with by the statement; or

(ii) Where the document in question is or forms part of a record purporting to be a continuous record, made the statement (in so far as the matters dealt with thereby are not within his personal knowledge) in the performance of a duty to record information supplied to him by a person who had, or might reasonably be supposed to have, personal knowledge of those matters; and

(b) If the maker of the statement is called as a witness in the proceedings:

Provided that the condition that the maker of the statement shall be called as a witness need not be satisfied if he is dead, or unfit by reason of his bodily or mental condition to attend as a witness, or if he is beyond the seas and it is not reasonably practicable to secure his attendance, or if all reasonable efforts to find him have been made without success.

(2) In any civil proceedings the Court may at any stage of the proceedings, if, having regard to all the circumstances of the case, it is satisfied that undue delay or expense would otherwise be caused, order that such a statement as is mentioned in subsection (1) of this section shall be admissible as evidence, or may, without any such order having been made, admit such a statement in evidence-

(a) Notwithstanding that the maker of the statement is available but is not called as a witness;

(b) Notwithstanding that the original document is not produced, if in lieu thereof there is produced a copy of the original document or of the material part thereof certified to be a true copy in such manner as may be specified in the order or as the Court may approve, as the case may be."

[36] The correspondence is a letter from the plaintiff to Mrs Dolly Taala so there is no question the plaintiff had personal knowledge of the letter. It is also highly relevant to the issues in these proceedings. The modern tendency is to admit evidence notwithstanding its potentially hearsay nature if it is reliable and relevant. For example in New Zealand see the new Evidence Act 2006; in R v Manase [2001] 2NZLR 197, the New Zealand Court of Appeal recognized a general residual exception to the hearsay rule and said such evidence is admissible provided it is relevant, reliable and the primary witness is unavailable to be called. The modern approach has been approved by this court in Police v Chan Kay [2009] WSSC 72. "P-5" does not raise any new line of argument in relation to the plaintiffs case and it was testified to by its author. Notwithstanding its non-inclusion in the affidavit of discovery, it is relevant and reliable evidence and it should be received as such.

[37] A similar position applies to the second document objected to by defence counsel as hearsay namely document 3 in the plaintiffs affidavit of discovery. I have not referred to that document however because it was not introduced as part of the evidence in this case. But if it ''had it would certainly have been relevant especially to establish the plaintiffs right to exercise his powers of use and possession over Fredrich Hunts share of the property. The only issue would be as to its authenticity and therefore reliability given that Jane Voight previously Jane Johnston and the plaintiffs father to whom these things were allegedly given are all now deceased.

[38] Similar observations and conclusions apply to the original German records that were attached to defence counsels submissions which confirm the original registration entry that the land was devised to Jane Johnson and Fredrich Hunt in equal shares: see paragraph 3.2 of counsels submissions. These too were not part of the evidence adduced before me but are obviously documents relevant to this matter and the only issue in respect of them would be as to authenticity.

[39] The formal judgment to issue is as follows:

1. the defendants are to vacate the estate land within 60 days hereof;
2. costs to the plaintiff in a sum to be agreed upon, failing which in a sum to be determined by the Court; and
3. the defendants counter claims are dismissed.
   

JUSTICE NELSON