Public Trustee v Silao [2010] WSSC 26 (27 May 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINU’U
Misc

BETWEEN:

PUBLIC TRUSTEE
a statutory body established pursuant to the Public Trust Office Act 1975
being the appointed Administrator of the estates of ANA MARIA BROWN Deceased
and AGNES SAUA TUALA Deceased.
Plaintiff

AND

FILIPO SILAO
sued on his behalf and on behalf of his family members presently
occupying the estate land at Vailima, near Apia.
First Defendant

AND

ELISAPETA SILAO
sued on her behalf and behalf of her family members presently
occupying the estate land at Vailima, near Apia.
Second Defendant

Counsel: F Vaai-Hoglund for plaintiff
G Stowers for first defendant and second defendant

Hearing: 19 February 2010
Written submissions for plaintiff: 1 March 2010
Written submissions for defendants: 4 March 2010
Conclusions: 30 April 2010
Judgment: 27 May 2010

JUDGMENT OF SAPOLU CJ

Nature of proceedings

1. These proceedings were commenced by the plaintiff, the Public Trustee, as administrator of both the estate of one Ana Maria Brown (Ana) deceased and the estate of one Agnes Saua Tuala (Agnes) deceased by filing a statement of claim on 14 August 2007. In that statement of claim, the Public Trustee seeks an order to evict the defendants and the members of their respective families who are occupying land at Vailima which belongs to both the estates of the said Ana and Agnes. It is alleged by the Public Trustee that the defendants are squatters who are trespassing on the said land.
   
2. The land which is the subject of the present dispute between the Public Trustee as plaintiff and the defendants is situated at Vailima and is described in the pleadings by all parties as;
   

"ALL that piece or parcel of land containing an area of eight acres zero roods and four perches (8a.Or.04p) more or less situated at Vailima near Apia being Parcel 214/32 Flur VIII, Upolu in the District of Tuamasaga being all the land registered in VOLUME 7 FOLIO 23 of the Land Register of Western Samoa as the same is more particularly delineated on Plan 14U/V111L".

3. The first defendant and the second defendant are brother and sister. Each of them has filed a statement of defence on his/her behalf and on behalf of the members of his/her immediate family. The defendants in their respective statements of defence are seeking from the Court an order to vest the disputed land in them and the respective members of their families whom they represent on the basis that they have acquired possessory title to the whole of the disputed land by way of adverse possession. The defendants did not plead in their statements of defence the basis on which they are seeking title to the disputed land by way of adverse possession. That should have been done but it was not made an issue in these proceedings. Be that as it may, the basis of the defendants’ claim to title to the disputed land by way of adverse possession became clear during the hearing of the evidence and it has been further clarified in the written submissions of counsel for the defendants.
   

Some comments on the hearsay nature of parts of the evidence

4. Much of the evidence that was given by the defendants is prima facie hearsay and therefore inadmissible unless any of the exceptions to the hearsay rule applies. This is in relation to what the defendants claim their mother Petelonila (Nila), who died on 17 January 1994, had told them about events that occurred before they were born. Likewise, in relation to what the defendants claim their mother Nila had told them about events that occurred after they were born but in which neither of them was present. Counsel for the defendants did not refer to any of the exceptions to the hearsay rule which would allow such evidence to be admitted.
   
5. The first defendant Filipo Silao was born on the disputed land on 17 January 1950 and the second defendant Elisapeta Silao was also born on the disputed land on 10 February 1945. What the defendants related in their evidence about what had happened in relation to the disputed land before they were born all came from their mother who died in 1994 and therefore was not available to give evidence in these proceedings.
   
6. The hearsay rule also applies to those parts of the evidence given by the witness Anina Godinet (Anina), who was called by the plaintiff, where she testified about events that occurred before she was born and which she claims were related to her by her mother when she was alive. Anina is a daughter of the said Ana, one of the two daughters of Clement Solia Felix the former owner of the disputed land. Anina was born on 18 November 1942 at Vailoa and her mother Ana died on 15 November 1964. Ana was therefore not available to give evidence in these proceedings. Ana’s sister Agnes died on 25 September 1989 and she was also not available to give evidence in these proceedings.
   
7. In considering the evidence that I have decided to accept in these proceedings, I have to bear in mind the hearsay nature of parts of the evidence that was adduced by all parties and where there is common ground between the hearsay evidence given by the witness Anina for the plaintiff and the hearsay evidence given by the defendants. Where there is common ground between the hearsay evidence by the parties, I have relied on such evidence.
   

Background

8. As the evidence by all the parties show, the disputed land is approximately eight acres in area. It is situated at Vailima and had formerly belonged to the said Clement Solia Felix (Clement), the father of Ana and Agnes, who had bought the land in 1938. Notwithstanding some discrepancies between the evidence given by the witness Anina and the evidence given by the first defendant and second defendant, it is common ground between the parties that Silao and Nila, the father and mother of the defendants, were brought over by Clement from Falealupo where he held the matai title Solia to live with him on the disputed land. That was many years before Anina or any of the defendants was born. There is dispute between the parties as to whether Nila, the mother of the defendants, was adopted by Clement. All that evidence is hearsay and there is no evidence to show that Nila was adopted by Clement except the hearsay evidence of the defendants which is not supported by any other evidence but opposed by Anina’s own hearsay evidence.
   
9. According to the witness Anina, she stayed on the disputed land in 1952 or 1953 while attending school at Savalalo. She was about 10 or 11 years at the time. That was the only time she stayed on the disputed land. Anina recalls that at that time, her maternal grandfather Clement had a permanent wooden structure with one room at the front and a faase’e (lean-to) at the back where he had his sofa to lie on. Not far behind the lean-to was a faleo’o (Samoan hut) where the defendants and their parents lived. Anina also recalls the many crops that were grown on the disputed land by Clement.
   
10. The defendants on the other hand testified that when they were born and grew up on the disputed land, Clement’s daughters Ana and Agnes never lived on the disputed land. They only made brief visits when Clement was alive and such visits were very seldom. The defendants also testified that their parents helped with the development of the plantation on the disputed land by growing and cultivating crops and by selling the produce at the market. Their parents also raised chickens, pigs and cows on the land.
    
11. On 25 July 1955, Clement died and he was buried on the disputed land. The first defendant was five years old and the second defendant was ten years old at that time. They and their parents continued to occupy and cultivate the disputed land. The defendants testified that Clement’s funeral was the last time they saw Ana and Agnes on the disputed land. This was not disputed by any evidence for the plaintiff.
    
12. The defendants also testified that their mother Nila had always told them that the disputed land had been bought by Clement for her and her brother Palenapa and that Clement had also made a will which left the disputed land to her and her brother but that will has been lost. Again this is hearsay evidence which is not supported by any other evidence to show that such a will was actually made by Clement and that the land had been bought by Clement for the defendants’ mother and her brother. I do not accept this part of the defendants’ evidence. I prefer the evidence given by the plaintiff which is supported by the records of the Public Trust Office that Clement died intestate, that is to say, without leaving a will. There is also no evidence to support the defendants’ hearsay evidence that the disputed land was brought by Clement for their mother Nila and her brother Palenapa.
    
13. By deed of conveyance dated 3 August 1956, the plaintiff as trustee of Clement’s estate conveyed the disputed land to Ana and Agnes being the only children of Clement as tenants in common in equal shares. Ana and Agnes thus became the registered owners of the disputed land. In the meantime, the defendants and their family continued to occupy, cultivate and sell produce from the disputed land.
    
14. On 21 December 1967, the second defendant got married and she and her husband lived and raised their children on the disputed land. They also continued to cultivate the disputed land. On 8 December 1973, the first defendant got married and he and his wife lived and raised their children on the disputed land and continued to cultivate the land.
    
15. As it then appears from the affidavit evidence by the assistant Public Trustee, the plaintiff, on behalf of the heirs of Ana who had died in 1964, wrote by letter dated 24 February 1975 to Nila the mother of the defendants to advise that the heirs of Ana have agreed to convey to Nila a half acre of the disputed land and the remainder of the land to be subdivided for the children of Ana. Nila never replied to that letter.
    
16. Then by letter dated 30 May 1975, the plaintiff wrote to Nila not to interfere again with the surveyor from the Department of Lands and Survey when he comes to survey the disputed land. However, Nila continued to prevent the surveyor from entering the land to conduct his survey work.
    
17. In December 1975, the father of the defendants died and he was buried on the disputed land.
    
18. Then sometime in 1976, according to the evidence of the first defendant, two of the children of Ana came to the disputed land and requested Nila to attend a meeting to be held at Tanugamanono at later date to discuss the division of the disputed land. The first defendant went with his mother Nila to the said meeting. According to the first defendant, the question of dividing up the disputed land was discussed at the meeting but his mother never agreed to a division of the land. Agnes the daughter of Clement and sister of Ana also attended the same meeting.
    
19. By letter dated 2 February 1976, the plaintiff sought from Nila a reply to his letter dated 24 February 1975 in which Nila was advised that the heirs of Ana have agreed to convey a half acre to her and for the remainder of the disputed land to be subdivided amongst the children of Ana. Again there was no reply from Nila to that letter. It is, however, not clear from the evidence whether the plaintiff’s letter of 2 February 1976 was delivered to Nila before or after the meeting that was held at Tanugamanono in the same year.
    
20. Then in 1977, according to the defendants, a son of Agnes named Kovati came with his wife to the disputed land and asked Nola for some land to have a plantation. The first defendant responded no on behalf of his mother Nila because there was not enough land but if Kovati’s family needed any taros or bananas they will give it to them. From that time until 1995, there was no further contact between the defendants and their family and the plaintiff, Agnes and her children, and the children of Ana. From the same time until 1995, there was no further contact between the defendants and their family and the plaintiff or the Public Trust Office.
    
21. The defendants further testified that in 1977 when Kovati requested some land for a plantation their family had already subdivided the plantation on the land into two parts, one half of the plantation was for the first defendant and his family to work on and develop and one half of the plantation was for the second defendant and her family to work on and develop. That was done in 1973 according to the second defendant. And that was why the first defendant told Kovati there was no land for him to have a plantation. So the defendants and their respective families as well as their mother Nila continued to occupy and cultivate the land without further contact with the plaintiff or the children of Ana and Agnes who, as already mentioned, died on 25 September 1989.
    
22. The first defendant and his wife are still living on the disputed land in the house where the said Clement had lived. Their daughter Akenese and her husband live with their children in their own house on part of the land, their son Pita and his wife live with their children in their own house on part of the land, and their daughter Tavae and her husband live with their children in their own house in another part of the land. It is not clear when the first defendant’s children and respective spouses built their separate houses on the disputed land. But as the first defendant got married on 8 December 1973, I would assume that that must have happened in the second half of the 1990’s or early in the present decade. What is clear, however, is that these houses were built without seeking the consent of the plaintiff or the heirs of Ana and Agnes.
    
23. On 1 November 2006 when the eldest son of the first defendant died, he was also buried on the disputed land.
    
24. According to the second defendant, her daughter Telesia and her husband live with their children on the land and have an incomplete house, her daughter Koretti and her husband live with her children in their own house on part of the land, and her son Lolesio also lives in his own house on another part of the land. It is not clear when these houses were built. But it is clear that they were built without seeking consent from the plaintiff or the heirs of Ana and Agnes. The second defendant, as already mentioned, got married on 21 December 1967.
    
25. The second defendant also testified that in 1992 one of her grandsons died and he was buried on the disputed land. His mother Nila died on 17 January 1994 and was also buried on the disputed land.
    
26. Then in October 1995, the daughters of Ana visited the disputed land and met with the first defendant. They asked the first defendant to attend a meeting to discuss how the disputed land was to be divided. There was disagreement between the daughters of Ana and the first defendant as to where the meeting was to be held. As a result, there was no meeting held.
    
27. Then on or about 17 June 1996, the defendants were served with an ordinary summons and statement of claim which showed the plaintiffs as Tualamaali’i Kovati on behalf of the estate of Agnes and Anina Godinet on behalf of the estate of Ana. The defendants engaged counsel who filed a statement of defence dated 1 July 1996 on their behalf.
    
28. For some reason which is not clear from the evidence, those proceedings between the plaintiffs and the defendants do not appear to have led anywhere. I can only suspect that it was because the plaintiffs in those proceedings had no standing to bring those proceedings but the administrator of the estate of Ana. At that time no administrator had been appointed of the estate of Agnes who only died in 1989.
    
29. On 11 May 2005, the plaintiff, the Public Trustee, who had been appointed administrator of the estate of Ana on 25 January 1974 and administrator of the estate of Agnes in 2005, instructed a surveyor to survey and subdivide the disputed land. The first defendant stopped the surveyor from entering the land and informed the plaintiff that the land belonged to his mother Nila.
    
30. There then followed unsuccessful attempts by the plaintiff to resolve this matter by offering half an acre of the disputed land to the defendants and the rest of the land to be conveyed to the heirs of Ana and Agnes. The plaintiff then filed proceedings on 14 August 2007 for an order to evict the defendants and their families from the disputed land and an order for possession of the land. On 22 October 2007, each of the defendants filed a separate statement of defence denying the plaintiffs’ claim and seeking an order to vest the disputed land in the defendants and their respective families on the basis of adverse possession.
    
31. After several adjournments, this matter came on for hearing on 19 February 2010.
    

The relevant law

32. The legal principles on adverse possession have been discussed by this Court in several cases which are referred to in Letele v Filia [2009] WSSC 82 at para 69. I need not in this judgment discuss those legal principles again. But there are two matters which did not arise in Letele v Filia [2009] WSSC 82 or any of the previous cases referred to therein but which have arisen in this case. The first of those two matters first arose in the more recent case of EA Coxon Ltd v Public Trustee [2010] WSSC 5 and which has arisen again in this case and the second matter has not arisen before until this case.
    
33. In EA Coxon Ltd v Public Trustee [2010] WSSC 5, this Court, following English and Australian authorities, accepted that a mistaken belief by a trespasser on land that he is the owner of the land would not prevent him from acquiring title by adverse possession. The issue is important because it is not uncommon to have cases where there is no specific evidence to show that a trespasser had an intention to exclude from the disputed land the world at large including the true owner. The trespasser may have occupied the land in the belief that it is his land but his belief later turns out to be mistaken.
    
34. In Malter v Procopets [2000] VSCA 11, Brooking JA said at para 5:
    

"The judge found – and this finding has not been attacked – that at all relevant times the appellants believed that the fence was on the title boundary. It follows from this that they believed themselves to be the owners of the disputed strip during the whole of the period in respect of which they claimed to have been in adverse possession of it. The Judge accepted that this mistaken belief would not prevent the acquisition of a title by adverse possession. This view is, with respect, plainly correct. It is supported by the decision of Pennycuick J in Bligh v Martin [1986] 1 WLR 804 and by decisions of the Court of Appeal, including Williams v Usherwood (1981) 45 P & CR 235; Pulleyn v Hall Aggregates (Thomas Valley) Ltd (1992) 65 P & CR 276; and Hughes v Cork [1994] EGCS 25. In Lutz v Kawa (1981) 112 DLR (3d) 271, the Court of Appeal of Alberta observed, at (DLR) 282 – 3, that usually ‘to show such a belief would be added support for the fact of his own possession’".

35. In Kieford Ridge Pty Ltd v Ward [2005] WSC 215, Hansen J in the Supreme Court of Victoria, after quoting from the judgment of Slade J in Powell v McFarlane (1977) 38 P & CR 452 at para 472, stated at paras 132 – 133:
    

"132. [It] is important to attend to what Slade J said in the passage quoted, in particular that the Courts will require clear and affirmative evidence that the trespasser not only had the requisite intention to possess but made such intenton clear to the world. It is important to understand what is meant by intention in this respect. This is referred to conveniently in Bayport v Watson [2002] VSC 206 at para 40 as follows:

"‘When the law speaks of an intention to exclude the world at large, including the true owner, it does not mean that there must be a conscious intention to exercise exclusive control; see Ocean Estates v Pinder [1969] 2 AC 19. And on that basis an intention to control the land, the adverse possessor actually believing himself or herself to be the true owner, is sufficient: see Bligh v Martin [1968] 1 WLR 804...’"

36. A mistaken belief by a trespasser on land that he is the true owner of the land is not inconsistent with the statement in J A Pye (Oxford) Ltd v Graham [2002] UKHL 30 by Lord Browne-Wilkinson at para 40 that for the purpose of adverse possession, an ‘intention to possess’ is an ‘intention to exercise such custody and control on one’s own behalf for one’s own benefit’. Such an intention can encompass an intention on the part of a trespasser to exercise exclusive control over someone else’s land in the mistaken belief that the land belongs to him.
    
37. The second matter which has arisen in this case for the first time and to which I need to refer, can be conveniently set out in this way. Under s.9(2) of the Limitation Act 1975, the limitation period for an individual to bring an action for the recovery of land is 12 years from the date on which the right of action accrued to him or to some person through who he claims. In terms of s.10(1) of the Act, that date is the date on which the person seeking recovery of the land was dispossessed of the land or discontinued his possession of the land. This is sometimes referred to in the context of adverse possession as the date of dispossession of the owner or discontinuance of possession by the owner of land.
    
38. Section 10(1) provides:
    

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

39. The distinction between dispossession and discontinuance of possession was the subject of comment in Board of Trustees of the Congregational Christian Church of Samoa v Pouvi [2003] WSSC 4 where this Court said:
    

"The often-cited distinction between dispossession and discontinuance of possession in English law is that stated by Fry J in Rains v Buxton [1880] UKLawRpCh 114; (1880) 14 Ch D. 537 at pp539-540 where his Lordship said:

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

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

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

40. The issue that has arisen in this case arises from the submissions of counsel for the plaintiff where she invites the Court to consider that Agnes died in 1989 but the Public Trustee who is the plaintiff in these proceedings was not appointed administrator of the estate of Agnes until 27 April 2005. Therefore, as against the plaintiff, the limitation period of 12 years should have only started to run as from 2005 when he was appointed as administrator of the estate of Agnes. It seems from this submission that even if the limitation period had run its full course while Agnes was alive, that becomes irrelevant after Agnes died and the administrator of her estate brings proceedings for recovery of land which belonged to Agnes. The limitation period in a respect of the administrator only starts to run from the date of his appointment as the administrator of Agnes’s estate. In other words, the limitation period even if it had expired while Agnes was alive, would run afresh when it is the administrator of her estate who is suing for recovery of Agnes’s land. With respect to counsel for the plaintiff, I cannot accept her submission.
    
41. In my view, if the limitation period to an action for recovery of land had expired while the owner of the land was alive, that will also apply after his death to the administrator of his estate. The appointment of the administrator will not revive the limitation period which had expired while deceased was alive and make it run afresh. There are circumstances provided under Part II of the Limitation Act 1975 where a limitation period can be extended but the appointment of the administrator of the estate of a deceased person is not one of them.
    

Discussion

42. From the evidence that I have decided to accept, Clement was married and he had two daughters, Ana and Agnes. Subsequently, Clement bought the disputed land in 1938. Neither Ana nor Agnes was born or grew up on the disputed land.
    
43. Silao and Nila, the father and mother of the defendants, were brought over by Clement from Falealupo where he held the title Solia and lived with him on the disputed land. Clement lived in a permanent wooden structure with a lean-to while the defendants parents lived in a Samoan hut at the back and helped with the cultivation of the land and raising chickens, pigs and cows.
    
44. In 1945 the second defendant was born on the disputed land and the first defendant in 1950. They grew up on the disputed land and helped their parents and Clement with the usual domestic chores.
    
45. Then on 25 July 1955 Clement died intestate and he was buried on the disputed land. At the death of Clement, the license he had given to the parents of the defendants to live on the disputed land also came to an end: Terunnanse v Terunnanse [1968] AC 1086 per Lord Devlin at p.1095 cited in Letele v Filia [2009] WSSC 82.
    
46. On 3 August 1956, the plaintiff, as trustee of the estate of Clement conveyed by deed the disputed land to Ana and Agnes, being the only children of Clement, as tenants in common in equal shares. Clement’s wife, the mother of Ana and Agnes, had predeceased him. Ana and Agnes thus became the registered and legal owners of the disputed land. In the meantime, the defendants and their parents continued to occupy, cultivate and sell produce from the disputed land without seeking any consent from Ana and Agnes. At the same time, Ana and Agnes were well aware of the presence of the defendants and their parents on the land.
    
47. In my view, the nature of the occupation by the defendants and their parents of the disputed land constituted dispossession of Ana and Agnes at least from the time they became the registered and legal owners of the land. The limitation period of 12 years must therefore have started from 3 August 1956.
    
48. Ana then died on 15 November 1964. On 21 December 1967, the second defendant got married and she and her husband lived and raised their children on the disputed land. On 28 January 1974, the plaintiff was appointed as administrator of Ana’s estate. If the submission by counsel for plaintiff in relation to the estate of Agnes is correct that the limitation period against the plaintiff only started to run from the date the plaintiff was appointed administrator of Agnes’s estate, then it must follow that the limitation period against the plaintiff in respect of Ana’s estate must also have only started to run from the time the plaintiff was appointed administrator of Ana’s estate. In other words, the eight year period when the limitation period of 12 years started to run against Ana from 3 August 1956 when she became a registered co-owner of the disputed land to 15 November 1964 when she died, would be irrelevant for the purpose of calculating when the limitation period started to run and when it ended against the plaintiff as administrator of Ana’s estate. Likewise, the acts committed by the defendants and their mother Nila between 15 November 1964 when Ana died and 28 January 1974 when the plaintiff was appointed administrator of Ana’s estate would be irrelevant for the purpose of calculating the limitation period against the plaintiff as administrator of Ana’s estate. This seems a rather odd situation. However, this was not addressed in the submissions of counsel for the plaintiff in relation to Ana’s estate and I prefer not to express any final view on it. The limitation period in respect of the plaintiff since he was appointed administrator of Ana’s estate on 28 January 1974 had expired in 1986 in any event, long before these proceedings were commenced on 14 August 2007.
    
49. In respect of Ana’s estate, there is no dispute that the defendants and their mother Nila had been in factual possession of the disputed land from the time Clement died on 25 July 1955 to 3 August 1956 when the disputed land was conveyed by the plaintiff to Ana and Agnes on 3 August 1956, then to 15 November 1964 when Ana died, then to 28 January 1974 when the plaintiff was appointed administrator of Ana’s estate, then to 17 January 1994 when Nila the defendants mother died, and then to 14 August 2007 when the plaintiff brought these proceedings.
    
50. Thus, even if the submission by counsel for the plaintiff is correct that in respect of Ana’s estate the limitation period started to run from 28 January 1974 when the plaintiff was appointed administrator of Ana’s estate, the defendants had been in factual possession of the disputed land for the full limitation period of 12 years which had expired on or about 27 January 1986. This is accepted by counsel for the plaintiff in her submissions.
    
51. In respect of the required intention to possess or animus possidendi, it is clear from the evidence that the defendants and their mother had committed numerous acts since 28 January 1974 to show such an intention. Such acts include the defendants continuous occupation, cultivation and the sale of produce from the disputed land, the omission by the defendants’ mother to reply to the plaintiff’s letter dated 24 February 1975 for half an acre of the disputed land to be given to the defendants’ mother and her family and the remainder of the land to be subdivided amongst the children of Ana; the refusal and continuing refusal of the defendants mother in 1975 to allow the surveyor sent by the plaintiff to enter and survey the disputed land; the refusal of the defendant’s mother at the meeting held at Tanugamanono in 1976 with Agnes and the heirs of Ana to divide the disputed land; the omission by the defendants’ mother to reply to the further letter dated 2 February 1976 from the plaintiff for half an acre of the disputed land to be conveyed to her and her family and the remainder of the land to be subdivided amongst the children of Ana; the refusal by the first defendant in 1977 to give any part of the disputed land to Kovati, a son of Agnes, to have a plantation when Kovati requested part of the land for him to have a plantation; and the refusal by the first defendant in 2005 to allow the surveyor sent by the plaintiff to enter and survey the disputed land. So from 28 January 1974 when the plaintiff was appointed administrator of Ana’s estate, the defendants and their mother had committed several acts in relation to the disputed land to show a clear intention to posses the land to the exclusion of the plaintiff as administrator of Ana’s estate, Agnes who was still alive, and the children of Ana and Agnes.
    
52. In addition to those acts, Akenese, the daughter of the first defendant, and her husband built their own house for them to live on the land; Pita, a son of the first defendant, and his wife built their own house for them to live on the land; and Tavae, another daughter of the first defendant, and her husband also built a house for them to live on the land. In respect of the children of the second defendant, Telesia, a daughter of the second defendant, and her husband also built a house for them to live on the land even though that house is incomplete; Koretti, another daughter of the second defendant, and her husband also built a house for them to live on the land; and Lolesio, a son of the second defendant, also built a house for himself on the land.
    
53. Even though the exact dates for all those constructions are not specifically clear from the evidence, I have the impression that some of those houses, if not all of them, were built before the commencement of the present proceedings on 14 August 2007. What is, however, clear is that none of those houses was built with the consent of the plaintiff, or Agnes when she was alive, or any of the heirs of Ana and Agnes.
    
54. Furthermore, when one of the second defendant’s grandsons died in 1992, he was buried on the disputed land. When the defendants’ mother died on 17 January 1994, the defendants buried her on the disputed land. Then on 1 November 2006 when the eldest son of the first defendant died, he was also buried on the disputed land.
    
55. So the evidence to show that the defendants and their deceased mother have had the necessary intention to possess the disputed land for well beyond the limitation period of 12 years is overwhelming. That is so, even if the limitation period in respect of Ana’s estate is taken to have only started to run from the appointment of the plaintiff as administrator of that estate on 28 January 1974.
    
56. In respect of the estate of Agnes, the acts of adverse possession committed by the defendants and their mother in relation to Ana’s estate also applied to Agnes while she was alive. I have already concluded that the limitation period in respect of Agnes had already started to run and expired while Agnes was still alive. The subsequent appointment of the plaintiff as administrator for Agnes’s estate did not revive the limitation period and made it run afresh.
    
57. It must be clear from the foregoing discussion that the action by the plaintiff for recovery of the disputed land from the defendants is well out of time and is therefore time barred.
    
58. However, counsel for the plaintiff submitted that as the defendants had maintained all along that the disputed land belongs to them, it is a contradiction in terms for them to claim title to the disputed land on the basis of adverse possession. The reason for this would seem to be that the intention to possess required for adverse possession is the intention to possess the disputed land to the exclusion of everyone else including the true owner. So if the defendants are the true owners of the disputed land as they have maintained all along, then by implication that means the defendants intention at the material times was to possess the disputed land to the exclusion of everyone else including themselves as true owners of the land. It follows, as I understand the submissions by counsel for the plaintiff, that the defendants could not have had the necessary intention to possess required for adverse possession.
    
59. Counsel for the plaintiff refers in her submissions to some of the comments that I made in Public Trustee v Nose [2009] WSSC 70. However, those comments were made in the context of the defendant’s evidence in that case to highlight the contradiction between the defendant’s persistence with his evidence that he is the true owner of the disputed land while at the same time emphatically relying on adverse possession as the basis for claiming title to the land. My comments in that case were also to cast doubt on the reliability of the defendant’s evidence.
    
60. It was not until the more recent case of EA Coxon Ltd v Public Trustee [2010] WSSC 5 that this Court expressly dealt with the question of whether a mistaken belief on the part of a trespasser that he is the true owner of the disputed land would prevent him from acquiring title by adverse possession to the land. I held, following English and Australian authorities, that it does not. I therefore accept as correct the submissions by counsel for the defendants that the defendants’ mistaken belief that they were the true owners of the disputed land is not fatal to their claim to title of the disputed land by way of adverse possession. Perhaps, I should also note here that the English case of Bligh v Martin [1968] 1 WLR 804 and the Australian case of Bayport Industries Pty Ltd v Watson [2002] VSC 206 cited by counsel for the defendants in support of this part of her submissions are also cited in EA Coxon Ltd v Public Trustee [2010] WSSC 5.
    

Conclusions

1. From the foregoing discussion, the conclusions that I have reached in this matter are as follows:-

(a) the claim by the plaintiff for an order to remove the defendants from the disputed land is dismissed;

(b) the "counter-claim" by the defendants for possessory title by way of adverse possession to the disputed land is granted;

(c) the plaintiff is ordered to convey the disputed land to the defendants within 30 days, and

(d) counsel to file memorandum as to costs in 10 days.

CHIEF JUSTICE

Solicitors
Vaai Lawyers for plaintiff
Stevenson Lawyers for first defendant and second defendant