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Supreme Court of Samoa |
IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU
CP.31/07
BETWEEN:
THE PUBLIC TRUSTEE
a statutory body established pursuant to the Public Trust Office Act 1975
as the duly appointed Administrator of the estate of
WILLIAM BLACKLOCK, deceased.
Plaintiff
AND:
TAVUI TAMOTU
sued on his behalf and on behalf of his family members presently
occupying the estate land at Tufuiopa Apia.
Defendant
Counsels: Ms FVaai-Hoglund for the plaintiff
Ms MTuatagaloa for the defendant
Decision: 6 May 2010
JUDGMENT OF NELSON J.
[1] The plaintiff brings this action to evict the defendant and his family from a certain half-acre parcel of freehold land situated at Tufuiopa in Apia. The property is partly swampy in nature, is irregular in shape and presently has no legal access. It is landlocked and is surrounded by the customary lands of Apia village.
[2] The defendant originally maintained that the property was customary land but he has indicated through counsel that he now accepts it is legally freehold land and that is its proper and true status. He however said that he and his family have always believed it to be customary land and that was their belief at the time they began to occupy this property, that it was customary land under the control of their neighbour to the north the Meisake family.
[3] I note at the outset that this belief does not preclude the defendants claim to acquisition of title to the land by adverse possession. For as noted in E.A. Coxon & Co. Ltd v Public Trustee [2010] WSSC 5 at paragraph 27, a genuine but mistaken belief as to the status of land does not operate to prevent acquisition of title to it by adverse possession. The court in that case cited the following passage from Malter v Procopets [2000] VSCA 11:
"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 [1968] 1 WLR 804 and by decisions of the Court of Appeal, including Williams v Usherwood (1981) 45P & CR 235; Pulleyn v Hall Aggregates (Tomas 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' ";
and at paragraph 29 of Coxon the court said that this very principle has been adopted and applied in many other cases in Australia. The essence of the present case is whether the licence given to the defendant to occupy the land operates to defeat his claim to title by adverse possession.
[4] The facts of this matter I find to be essentially as follows: The original registered owner of the land was one William Blacklock of Sydney, New South Wales, Australia who passed away on 6 February 1942 leaving this and other lands in this country. Not much is known about what happened to the land in the years subsequent to Blacklocks death but it appears parts of the land were occupied by different people at different times. Much of the property is swampy and susceptible to flooding during king tides and periods of heavy rainfall and perhaps this accounts for the lack of any long term occupation. It also appears from what I have heard that none of Blacklocks heirs resided in Samoa or at any period occupied any part of the land.
[5] Nothing significant happened until about 1967 when one of the beneficiaries to Blacklocks estate requested the Public Trust to administer the estate. Enquiries by the Public Trust Office at that time revealed that the only occupiers of the land were one Silipa Fruean and Faga Taele of Apia village. Their occupation appears from the evidence to have been periodic and spasmodic and did not involve the building of any permanent or significant structures.
[6] As a result of the request to the Public Trust Office, the Public Trustee filed with the Supreme Court of Samoa in 1968 an election to administer the estate of Blacklock and on 20 August 1968 an approved election to administer was registered against the title of the land. The legal effect of this was that as of that day the plaintiff became seized of legal ownership of the land and the other lands in Samoa belonging to Blacklock.
[7] The next happening of any significance occurred in the following year 1969 when there was drawn up a sketch plan of a proposed access road to the land. A copy of that sketch plan dated 14 July 1969 has been exhibited as Exhibit "P-6" for the plaintiff.
[8] Nothing happened on this particular file in the Public Trust Office for a number of years. According to the witness for the Public Trust that was because all the estate beneficiaries resided overseas and there were difficulties in trying to track them down and receiving instructions. It appears from the file however that on or about 15 February 1972 a letter was written by the office to one Mr Silipa Fruean advising him that the Public Trustee has been directed by the estate beneficiaries to offer to sell the land to him. Nothing seems to have come of that offer and it is not clear whether it was responded to or whether the land was offered to anyone else. What is apparent from the file is that the beneficiaries were requested by the Public Trustee to deposit funds in order to enable the Blacklock estate to be finalized.
[9] Matters stayed dormant until about 2001 when the estate beneficiaries finally deposited these funds and the plaintiff then began to take steps to finalize the Blacklock estate. Surveyors were sent to the land in that year and a redefinition plan number # 6763 of the land was drawn up. The plan is dated August 2001 and was approved by the Lands and Survey Department and registered in the Land Registry office on 18 August 2003. Copy of that plan was produced as Exhibit "P-2" for the plaintiff and the plan shows a structure on the land allegedly belonging to the defendant.
[10] Sometime in 2004 an inspection of the land was carried out by the plaintiff office and for the first time they realized that the defendant was occupying the northern part of the land and had built thereon a european residence, faleoo and a toilet block. Although not noted on the plan there was also found two small graves on the eastern side of the aforesaid residence. These were all confirmed by the court site visit to the land during the course of these proceedings and it was obvious that the structures and graves have been there for some period of time.
[11] The main witness for the plaintiff agreed that they have probably been there for over 20 years. Reference should be made to the photographs attached to Exhibit "P-7" for the plaintiff (the valuers report) which show the details of what is on the land. It appears from the evidence of the plaintiffs officer that the inspection in 2004 was the first by the office since probably 1972 when the land was offered for sale to Fruean.
[12] The next step of significance is that the plaintiff wrote to the defendant in June 2005 Exhibit "P-3" for the plaintiff a letter dated 28 June advising the defendant of the status of the land and seeking to evict the defendant. The plaintiffs witness stated that the defendant visited their offices and disputed their advices maintaining that the land was not freehold but was customary land and they had been given permission in the 1970s to occupy it by the Alii and Faipule of Apia.
[13] The plaintiff continued with its efforts to evict the defendant and the plaintiffs witness testified that at a subsequent meeting with other officers of the plaintiff, the defendant told them the permission to reside had in fact been given by one Isalei Iuli who was an heir of the neighbouring Meisake family. As a result of this the plaintiff sent a further letter dated 28 July 2005 produced as Exhibit "P-4" for the plaintiff advising that Isalei in fact had no connection to the Blacklock estate or to the land and the correspondence again required the defendant vacate the land. The defendants continued failure to do so and his argument that the land is customary land on which he and his family had been given permission to live has led to the present proceedings. The further evidence of the plaintiffs witness was that in 2004 it had advertised the land for sale and there were a number of prospective buyers. They maintain that if the plaintiffs claim is successful it proposes to sell the land.
[14] The courts site visit confirmed that the land remains land locked with no legal access and it is difficult to understand why any buyers would be queuing up to purchase the land. According to plan 6763 the property is surrounded by customary land through which some form of access would have to be negotiated given that the land is a land locked property. One would have though that the party with the greatest interest in acquiring the land would be the defendant and his family.
[15] The defendants evidence was different. He said that he and his family moved on to the land in 1978 because he was given permission to do so by his aunty Avoka who was married to Faualo one of the paramount chiefs of Apia village. He said at that time there were no permanent structures on the land, only the two graves and some temporary buildings were there. He thinks that the two graves belong to the grandparents of a cousin who was at that time occupying another part of the land. This cousin has since emigrated to New Zealand.
[16] He also said most of the land at that time was muddy and swampy and prone to flooding but that over the years they have slowly built up and reclaimed the land using rubbish and mud from the nearby streams. They also cultivated the land growing coconuts, taro and various other crops thereon. The present european residence was built around the year 2000 but he and his family have continuously occupied the land since 1978 and they have never had contact with anyone of the Blacklock estate or the plaintiffs office. He was surprised by the letters of 2005 because it was always his understanding from his aunty that the land was a "matupalapala" or a gift from the Meisake family to the aunty for services rendered and they have occupied the land continuously on that understanding.
[17] The defendants evidence was confirmed by his son-in-law Junior Tofilau who testified about various truck loads of rock and fill brought to construct a road access and to fill part of the land. This road access is now blocked off and the current access to the land is via a walk-bridge crossing Fuipua Stream.
[18] A member of the Meisake family one Komisi McFall also gave evidence and his testimony was that the Meisake family land was not customary but was freehold and that no portion of it was ever gifted to Avoka or anyone else as a "matupalapala". He said previously the access to the land went through their property but because of differences with the defendants children their family closed off the access. He did accept however that the defendant and his family have been occupying the land for about 20 years. He also clarified that the part of the land previously occupied by Silipa Fruean is quite different to the part that is currently occupied by the defendant and his family and that the part occupied previously by Silipa Fruean was the island part in the middle of the Fuipua stream.
[19] The final witness in this matter was a valuer one Mr Lui Seru. His evidence related to the defendants counter claim for the value of improvements made to the land over the years. His evidence related mainly to the defendants claim for compensation and as part of his evidence he introduced his report Exhibit "P-7" for the plaintiff. Attached to it are a series of photographs which correctly depict the current state of the land and the graves and the main buildings thereon belonging to the defendant and his family.
Relevant law:
[20] The concept of adverse possession is well established by a line of cases beginning with Nelson Mackenzie Ltd v Lamosi (1995) 5 July 1995 a decision of the Chief Justice. The relevant principles were helpfully summarized by Wilson J. in Jennings v Onesemo [2000] WSSC 26:
"1. The right of a dispossessed owner to recover his or her land is limited by statute (here the Limitation Act 1975).
The policy underlying adverse possession is to deny a remedy to true owners who fail to exercise their rights within a reasonable period of time. See Nelson Mackenzie Ltd. v Sale Lamosi supra at page 12.
[21] For present purposes the observations of the Court of Appeal in Fiso v Reid [1996] WSCA 3 are of particular relevance:
"There are in various jurisdictions a large number of authorities dealing with the question of the circumstances in which a person may successfully claim a title as a result of being in possession of land adversely to the registered or legal owner. The primary Judge has himself referred to the decision of the New Zealand Supreme Court in McDonnell v Giblin [1904] NZGazLawRp 25; (1904) 23 NZLR 660, in which it was held that to be adverse the defendant's possession must 'be sufficiently open to enable an owner, reasonably careful of his own interests, if living in the locality, reasonably to discover that someone has taken possession of the land'. His Honour also referred to Buckinghamshire County Council v Moran [1989] 2 All ER 225 where Slade LJ said at 232-3:
Possession is never 'adverse' within the meaning of the Act if it is enjoyed under a lawful title if, therefore, a person occupies or uses land by licence of the owner with the paper title and his licence has not been duly determined, he cannot be treated as having been in 'adverse possession' as against the owner with the paper title.
Reference may also be made to the decision of the Court of Appeal in England in Hughes v Griffin [1969] All ER 460 where at 464 Harman LJ referred to what was said by Romer LJ in Moses v Lovegrove [1952] 2 QB 533. His Lordship said at 544:
It seems to me that one can, in addition to looking at the position and rights of the owner, legitimately look also at the position of the occupier for the purpose of seeing whether his occupation is adverse. In my opinion, if one looks to the position of the occupier and finds that his right to occupation is derived from the owner in the form of permission or agreement or grant, it is not adverse, but if it is not so derived, it is adverse, even if the owner is, by legislation, prevented from bringing ejectment proceedings.
There is also the decision of Sir Nigel Bowen, formerly Chief Judge in Equity of the Supreme Court of New South Wales in Mulcahy v Curramore Pty Ltd [ 1974] 2 NSWLR 464 where His Honour said at 475 that adverse possession must be 'open, not secret; peaceful not by force; and adverse, not by consent of the true owner'."
Discussion:
[22] The evidence seems to me clear and straight forward. Following the death of the original owner Mr Blacklock in 1942, nothing much happened in respect of the land until 1968 when the Public Trustee became registered as proprietor. The land had a legal description, see Exhibit "P-1" for the plaintiff, so obviously it had been identified and surveyed probably at the time when the original Court Grant was issued. The legal description refers to a plan of the land (at page 4 of Grund Akten which is a German register) and refers to it comprising an area of approximately half an acre "described as Parcel 645, Flur II Upolu, Volume 1 Folio 43 of the Land Register of Western Samoa". The sketch plan of the land produced as Exhibit "P-6" shows an identifiable piece of land with square boundary stones which was the normal way at the time of pegging a piece of freehold property. Many of these stones obviously remained up to 2001 as evidenced by the fact that some of them are shown on Exhibit "P-2", the redefinition plan. "P-6" also shows the location of the property relative to the neighbouring properties and the road at Tufuiopa ("Tufuiopa Road") running off Falealili Street. These roads still exist to this day and the plan encompasses the ancient springs of 'Fuipu'a' and 'Punapuna'. Unlike when and where the taro blight began as referred to in counsels submissions, these are geographical locators of which judicial notice can properly be taken as they have been in existence for many decades. I therefore do not accept the statement of the plaintiffs witness that one of the problems back in the 1980s and 1990s was that the land was undefined and the plaintiff was not sure where it actually lay. Clearly the office could have discovered it using a little diligence and application.
[23] It is also apparent from the evidence that as from 1978 onwards the defendants occupation was in the language of the authorities "actual, open, manifest, exclusive and continuous" and such possession was "open not secret, peaceful not by force". It was also complete in the sense that not only buildings were erected but crops were grown and swampy land was reclaimed using rubbish and materials from the nearby streams. The defendants occupation therefore seems to satisfy the requirement of continuous and open physical occupation of the land for more than 12 years.
[24] I reject the evidence that Silipa Fruean and Faga Taele occupied the land. The evidence of Komisi McFall who has lived in the adjoining lands of the Meisake family all his life was that Fruean erected a samoan fale and operated a pig sty on the island in the Fuipua stream opposite to the part occupied by the defendant and his family. That island remains visible and is shown on Plan 6763 as customary land and is located to the south and south east of the land occupied by the defendant and his family. There is thus no evidence that Fruean or Taele ever occupied any portion of the defendants land post or even pre-1978 when the defendants occupation began. An occupation that Komisi McFall agreed was in the 20 year plus vicinity.
Decision:
[25] Where the defendants claim falls down is in relation to the licence to occupy granted to him by his aunty Avoka Faualo. The above referred authorities show that occupation pursuant to a licence operates to defeat a claim of adverse possession because the possession is not thereby adverse. It was on this very basis that the appellants claim for title failed in Fiso v Reid because the court found the appellants were in occupation by "licence and consent of the owners".
[26] Fiso v Reid is arguably distinguishable on the facts because there, as in many like cases, the licence to occupy was granted by the legal owners of the property, the law in this country not recognizing implied licences, see Letele v Filia [2009] WSSC 82 paragraphs 70 – 72 of the judgment. In the present case no licence was granted by either Blacklock, his heirs or the plaintiff as administrator of Blacklocks estate. Here the original permission to occupy was given by the defendants aunt Avoka Faualo and accepted by the defendant in his belief that she had the authority to give such permission because the land was customary land and was a "matupalapala" granted to her by the neighbouring Meisake family.
[27] The defendants claim in this case is not defeated because of a licence to occupy granted by the true owners, it fails because the grant means he lacks the necessary animus possidendi required for adverse possession. As noted by the authorities adverse possession comprises two elements: the first is factual possession being actual physical custody and control of the land. In this case there is no doubting that the defendant for over 20 years at all material times had actual physical possession and control of the land. But there is a second ingredient and that is the defendant must also have an intention to possess the property to the exclusion of the whole world. This is what is known as the animus possidendi and for this to be present the evidence must show "an intention in ones own name and on ones own behalf to exclude the world at large including the owner with the paper title if he be not himself the possessor": see the judgments of Lord Browne- Wilkinson in JA Pye (Oxford) Ltd v Graham [2002] UKHL 30 at paragraph 43 and Sapolu Chief Justice in Letele v Filia [2009] WSSC 82 at paragraph 65.
[28] The problem here is that the defendant went into occupation pursuant to the licence to occupy from the aunty granted over what was understood to be customary land. Because of the nature of that licence he cannot be said to have intended to exclude the world at large from the land. He believed the land in question was customary land and therefore he would have well known it was under the control of a customary land owner. In this case he believed that customary land owner to be the aunty and what she told him was the land was a "matupalapala" as distinct from for e.g. an "igagato" which would make it a permanent grant of the land for services. His intention may well have been different if he had believed it to be an "igagato" but that was not his evidence. His possession at best was therefore always subject to the control of his aunt who could have ordered them off the property at any time or given it to someone else to occupy. Hence the occupation by the defendants cousin and her family of part of the land when the defendant was first allowed to enter onto the property. After the aunties demise, control of the land would then have passed to her customary successors in title whomever they may have been. I note too his advice to the plaintiffs office at one stage that permission to occupy the land was given to him by the Alii and Faipule of Apia village where the land is situate.
[29] Whatever the case may be it cannot be said that he intended to therefore permanently exclude either the aunty or the customary land owners from the property. He was there by licence and had that licence been revoked he would have been obliged by the terms of his occupation to vacate the property. This is a common scenario in respect of many pieces of customary land in this country. As to the registered land owner he did not direct his mind to ousting possession by that particular party as he had no knowledge that the true owner was Blacklock and subsequently the plaintiff as administrator of Blacklocks estate. His claim to acquisition of title by adverse possession therefore must fail, not because he had the licence of the true owner but because he believed he had the licence of the true owner and thus lacked the necessary intention to possess or animus possidendi as against the world at large.
[30] A similar conclusion was reached by Chief Justice Sapolu in Public Trustee v Nose [2009] WSSC 70. There the land in question was located in Upolu and the original registered owner was deceased but the beneficiaries of the land who were relatives of the registered owner were all resident in American Samoa. They authorized their cousin who lived in Samoa close to the land to look after the land. It was the cousin who gave permission to the defendant in that case to occupy the land. In declining the defendants claim the learned Chief Justice stated at paragraph 73:
"I am of the clear view that the fact that the defendant did seek and obtain permission from the cousin for him and his family to live on the disputed land provides no clear and affirmative evidence to support a finding that the defendant at the time he first entered and occupied the land with his family had the requisite intention to posses. If anything, it tends to negate such a finding and in the absence of the requisite intention to posses, the defendant and his family could not have been in adverse possession at the time they first entered and occupied the disputed land."
[31] Having reached that conclusion I do not need to deal with the section 26(c ) of the Limitation Act 1975 argument which the plaintiff did not plead or pursue in its submissions or to address the other arguments advanced by plaintiffs counsel in his helpfully detailed submissions. The defendants claim as to acquisition of title by adverse possession fails and what remains to be dealt with is the counter claim by the defendant for compensation for improvements made to the land over the 20 years of his occupation.
[32] For these he claims the sum of $100,000. On the evidence I have seen and heard I accept he is entitled to compensation in a sum to be finally determined but I cannot make that determination as I have only received the submissions of the plaintiff in relation to compensation but not the defendant. I suspect that is because defendants counsel wished the issue of adverse possession to be resolved first.
[33] What I therefore propose to do is as follows: These proceedings will be further adjourned to the 24th May 2010 to settle the issue of compensation whether that is done by negotiation or otherwise. I would also note that mediation is an option available to the parties but if it is not possible to settle the issue of compensation then defendants counsel is to file her submissions on the matter and the court will consider the arguments further and make a ruling on the matter. Costs will be reserved for the interim.
JUSTICE NELSON
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