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Supreme Court of Samoa |
IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU
BETWEEN:
IDA BARBARA VAAI of Siusega, Widow
Plaintiff
AND:
SITUFU FILIPAINA of Magia, Planter
Defendant
Counsel: R Drake for plaintiff
T Toailoa for defendant
Judgment: 12 December 2011
JUDGMENT OF SAPOLU CJ
Introduction
Is the plaintiff the true owner of the land as freehold land or is the land customary land pertaining to the matai title Ailolo?
Has the defendant acquired title to the land on the basis of adverse possession?
"[There] are two elements necessary for legal possession:
"1. a sufficient degree of physical custody and control ('factual possession')
"2. A intention to exercise such custody and control on one's own behalf for one's own benefit ('intention to possess')
What damages should be awarded to the plaintiff for the acts of trespass alleged to have been committed by the defendant in relation to the land?
"Increasingly in trespass to property or nuisance there has been an award for mental distress or anxiety"
21. But general damages for trespass to property tend to be on the low side. In Attorney General v Taunoa [2005] NZ CA 312 para [169], O'Regan J, in delivering the judgment of the majority of the New Zealand Court of Appeal, stated:
"(a) General damage: The authors of Todd (ed) The Law of Torts (4th ed, 2005)
" describe awards of general damages as an adjunct to special damages in cases
" of damage to property as tending 'to be on the low side' ( at 26.3.02(2)).
" A similar point was made by Williams J in X v Attorney General [1997]
" 2 NZLR 623 at 639 where, having undertaken a survey of general damages
" awards in New Zealand cases he concluded that New Zealand Courts
" 'have adopted a cautious and conservative approach to the assessment of
" general damages'"
(a) Claim for the homestead
23 According to the plaintiff, repairs were done to her homestead before 1973. When her husband died that year the land was transferred to her. In 2003, Mr Betham a licensed valuer did a valuation of her homestead. It was estimated at about $46,000. Her son Alan and his wife were then occupying her homestead. At the beginning of 2008, Alan and his wife migrated to New Zealand. One Patau and his family who were neighbours then looked after the land for her. On 29 December 2008 as she was at the Faleolo International Airport waiting for her flight to New Zealand, she learnt that someone was building on her land. Upon her return from New Zealand she made enquiries which revealed that the defendant was responsible for removing her homestead and constructing a large Samoan guest house on her land. I must say that this is hearsay evidence and it is inadmissible. The people that the plaintiff said she had made enquiries with were not called to give evidence. Likewise, Patau and his family who had been looking after the plaintiff's land were not called as witnesses.
24. The defendant in his evidence said that he lives in Australia but visits Samoa every two years. When he came to Samoa in 2008 there was no house of the plaintiff on the land but only concrete posts, a concrete foundation, and walls (tulimanu) were there. He then started building his guest house on the land. That was in November or December close to Christmas. By the time he had to return to Australia, construction of his house was still continuing.
25. The concrete posts, concrete foundation, and walls mentioned by the defendant are no longer on the land. The defendant must have removed them to build his house. The question is whether it was the defendant who removed the whole of the plaintiff's homestead. The evidence given by the plaintiff was that she made enquiries and she was told that it was the defendant. This is hearsay evidence because none of the people that plaintiff said she enquired with was called as a witness. The defendant in his evidence said that there was no house on the land when he started building his own house. There were only concrete posts, a concrete foundation, and walls. Given this state of the evidence, I am not satisfied to the required standard of proof in civil cases that it was the defendant who removed the plaintiff's homestand except for the said concrete posts, concrete foundation, and walls.
26. The next difficulty is that there was no evidence as to the value of the concrete posts, concrete foundation, and walls. One thing that is clear from the evidence is that by 2008 the plaintiff's homestead was quite old. It was repaired sometime before 1973 but there was no evidence as to exactly when it was built or when the repairs were done. I would presume that the plaintiff's homestead was built well before 1973. There was also no evidence as to the number of concrete posts or walls that remained on the land which the defendant said were there before he built his house. This information could have come out during the cross-examination of the defendant but the defendant was not cross-examined on this point. In these difficult circumstances, and doing the best I can, I have decided to award $12,000 damages to the plaintiff for the concrete posts, concrete foundation, and walls which were removed by the defendant.
(b)Claim for footpaths
27. There are also evidential difficulties with the defendant's claim for damages for the footpaths. There was no evidence as to the age or value of the footpaths in 2008. There was also no evidence as to the number of footpaths that were on the land by 2008. According to the defendant's evidence during cross-examination, when he built his house the footpaths were not in a good condition. They were all cracked (taetaei).
28. The onus of proof is on the plaintiff. If the plaintiff cannot prove her claim for damages then the blame should not be on the defendant. But one thing is clear, there were footpaths on the land though they were cracked and not in a condition. They were removed by the defendant. I award $500 under this claim for damages.
(c) Claim for fence
29. There is no evidence that it was defendant who removed the fence which surrounded the plaintiff's land. The defendant said under cross-examination that he did not see any fence on the land when he built his house. So it was not him who removed the fence that surrounded the land.
30. As earlier mentioned, when the plaintiff's son Alan and his wife left for New Zealand at the beginning of 2008, the land was left to neighbours to look after. The fence was still on the land at that time. But the defendant said there was no fence on the land when he built his house close to Christmas of the same year. In other words, someone else must have removed the fence between the time the plaintiff's son Alan and his wife left for New Zealand and the time the defendant built his house on the land. The plaintiff has not proved this part of her claim to the required standard. It is therefore dismissed.
(d) Claim for coconut trees
31. Again there are evidential difficulties with this part of the plaintiff's claim for damages. It is not clear form the evidence how many coconut trees were growing on the plaintiff's land that were removed by the defendant. There was also no evidence from the plaintiff as to the age or condition of the coconut trees in 2008. This is relevant evidence for the purpose of assessing damages.
32. The defendant in his evidence said that many coconuts trees on the plaintiff's land were removed for the extension of the Faleolo International Airport. The coconut trees that were removed were mainly in a damaged condition. He also said that some of the coconut trees appeared to be more than ten years old while others appeared to be about 30 years old.
33. What is clear from the evidence is that the defendant did remove some of the coconut trees that were growing on the plaintiff's land when he built his house. But the age, condition, and the number of such coconut trees are far from clear. The onus is on the plaintiff to prove her claim for damages to the required standard. I will award only $500 to the plaintiff under this part of her claim.
(e) Claim for consequential loss
34. Again there are evidential difficulties with this part of the plaintiff's claim for damages. Counsel for the plaintiff in her closing submissions said that the plaintiff made six return taxi trips form Apia to the land as a direct consequence of the trespass by the defendant. Each return trip cost $60. There was no oral evidence from the plaintiff as to how many taxi trips she made to the land or the taxi fares. The number of such trips and taxi fares only came up in the closing submissions of counsel.
35. If reference is made to the plaintiff's affidavit evidence, she mentions only two trips to the land when she returned from New Zealand at the beginning of 2009 after she had heard about the defendant building his house on the land. She does not even mention in her affidavits that those trips were by taxi.
36. Be that as it may, I accept that on the affidavit evidence by the plaintiff she did make two trips from Apia to the land because of the trespass by the defendant. Whether those trips were by taxi or private transport the plaintiff did incur expenses in this regard. I award the plaintiff $120 under this part of her claim.
(f) Claim for general damages for mental and emotional distress
37. The plaintiff in her affidavit evidence said she suffered distress and anxiety through worrying about what has happened to her land. She therefore claims general damages for non-pecuniary loss due to mental and emotional distress.
38. The evidence on this part of the plaintiff's damages claim for damages is rather slim but I accept that the plaintiff must have suffered distress and anxiety as a direct consequence of the defendant trespass on her land. I also bear in mind that awards of general damages for distress or anxiety in actions for trespass to property in other jurisdictions have been towards the low side: Attorney General v Taunoa [2005] NZCA 312, para [169]. I award the plaintiff $500 under this part of her claim.
39. There is no other claim for damages.
Conclusions:
40. (a) The defendant is ordered to dismantle and remove his Samoan guest house from the plaintiff's land and to vacate and give up possession of the land to the plaintiff in two months. If, however, the parties can reach agreement that the defendant leaves his house on the land for the plaintiff, appropriate arrangements be made for the price of the house to be paid by the plaintiff.
(a) Special damages of $12,000 for the concrete posts, concrete foundation, and walls plus $500 for coconut trees and $500 for the footpaths are awarded to the plaintiff against the defendant. This is a total of $13,000 for special damages.
(b) There is no award for the fence as this part of the claim has not been proved.
(c) Consequential loss of $120 is awarded to the plaintiff for transport to her land.
(d) General damages of $500 are also awarded to the plaintiff for mental and emotional distress.
41. Counsel to file submissions as to costs in 10 days.
CHIEF JUSTICE
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URL: http://www.paclii.org/ws/cases/WSSC/2011/137.html