Findlay v Stanley [2012] WSSC 2 (24 January 2012)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINU'U

BETWEEN:

ROSALINE FINDLAY widow of 38 Peel
Place, Wainuiomata, Wellington, New Zealand
Plaintiff

AND:

NIUTEA STANLEY, shopkeeper,

ROGER TOOTOOALII STANLEY,
principal policy and planning officer,
c/- Ministry of Women, Community and Social Development

ROSALINE MAOTA, entertainer

AND

ABEL STANLEY JNR, self employed, all of Savalalo
Defendants

Counsel: K Kruse for plaintiff
R Papalii for defendants

Hearing: 23 January 2012
Judgment: 23 January 2012
Reasons for Judgment: 24 January 2012

REASONS FOR JUDGMENT

Introduction

1. At the conclusion of the hearing of this matter on Monday 23 January 2012 I delivered judgment for the plaintiff Rosaline Findlay (Rosaline) and indicated that my reasons for judgment will be delivered in writing to counsel in due course. These are those reasons.
   
2. Rosaline who resides in New Zealand is the registered owner of a quarter acre of land at Savalalo in Apia which she inherited by will from her late father. The land became registered in her name on 9 March 2000.
   
3. The first named defendant Niutea Stanley (Niutea) is a sister in law of Rosaline. She was married to Rosaline's late brother Abel Stanley. The other three defendants including Roger Tootooalii Stanley (Roger) are Niutea's children. They are nephews and a niece of Rosaline.
   
4. When Niutea married Rosaline's brother Abel Stanley in 1965, they lived on the land together with Rosaline's parents and family. All of Niutea's children grew upon the land. When Rosaline's father passed away in 1986, he had already made a will giving the land to Rosaline. At that time, Rosaline had already left for New Zealand. The land was not registered in Rosaline's name until 9 March 2000.
   
5. After her husband Abel Stanley passed away in 1988, Niutea continued to live on the land. It is not clear from the evidence who of her children were still living on the land at that time. What is clear is that Niutea and her son Roger are still living on the land up to now.
   
6. On 8 December 2010, Rosaline brought these proceedings seeking an order for removal of Niutea and her children from the land and a permanent injunction to forbid them from re-entering the land. On 14 March 2011, Niutea and her children filed a statement of defence and counterclaim alleging fraud as a defence and counterclaiming for possessory title to the land based on the doctrine adverse possession and, in the alternative, counterclaiming for compensation for improvements which they say they had made to the land. On 28 March 2011, Rosaline's solicitor filed a statement of defence to the counterclaim.
   
7. At the in chambers conference with counsel before the start of the trial on 23 January 2012, counsel for the defendants abandoned the defence based on alleged fraud and the counterclaim for possessory title to the land based on adverse possession. Only the counterclaim for compensation for improvements Niutea and her children claim to have made to the land remains. So fraud and adverse possession are no longer issues in these proceedings.
   
8. The only issues that remain for determination are Rosaline's claim for removal of Niutea and her children from the land and a permanent injunction to forbid them from re-entering the land as well as the defendants counterclaim for compensation. For convenience, I will deal first with the defendants counterclaim for compensation. This necessitates re-stating the issues in this way:
   
   • (a) Should the plaintiff Rosaline pay compensation to Niutea and her children who are the other defendants for the improvements they claim to have made to the land?
     
   • (b) If the plaintiff Rosaline should pay compensation to the defendants, how much should she pay?
     
   • (c) If Rosaline does not have to pay compensation, should the defendants vacate the land and yield up possession of the land?
     

First issue: Should the plaintiff Rosaline pay compensation to Niutea and her children who are the other defendants in these proceedings for the improvements they claim to have made to the land?

9. The land fronts onto the public road form Savalalo to Taufusi. Between the land and the road is a drainage system built by the Government. This consists of deep ditches. This has proved to be effective and efficient during the rainy seasons in December and January.
   
10. On the land are a two storey house and an open house built by Rosaline's parents. Also on the land is the defendants shower and a one bedroom wooden structure built by the defendant Roger in 2004 – 2005 to live in. Another structure on the land is a small wooden shop that was built by Rosaline's parents but was repaired by Niutea and her children in 2006. They also added a small extension which can fit two people to the back of the shop. This small extension has a concrete foundation.
    
11. The land is dry land. It used to be swampy many years ago but Rosaline's parents and their family had done much work over the years to reclaim the land. The construction by the Government of the public road and the drainage system which adjoin the land have greatly contributed to the dry condition of the land and the prevention of flooding during heavy rain.
    
12. The defendants claim that every year except 2011 – 2012 they have had to bring in truckloads of coral fill, soil, and aggregate (iliili) to fill part of the land to prevent flooding. However, a huge part of this fill gets washed away by the rain and the other part sinks to the bottom. That is why the defendants say they have had to bring in truckloads of coral fill, soil, and aggregate every year during the rainy season.
    
13. I find this evidence by the defendants Niutea and Roger unconvincing. I would accept that during exceptionally heavy rain there may be some flooding to the land. But exceptionally heavy rain does not occur every year during the rainy season. In fact there has been no such heavy rain in December 2011 and January 2012. The drainage system and ditches which adjoin the land have also reduced the risk of flooding. In any event, if the evidence for the defendants is true, a huge part of the fill they bring to the land always gets washed away whilst the other part of the fill sinks and disappears. So such fill has not been an improvement to the land because it is either washed away or sinks and disappears. As a consequence, the defendants have had to bring in truckloads of fill every year during heavy rain.
    
14. The improvements for which Niutea and her children are claiming compensation are the structures they have built on the land and the truckloads of fill. I have come to the conclusion that the defendants claim for compensation should be refused. These are my reasons for this conclusion.
    
15. After Rosaline became the registered owner of the land on 9 March 2000, she asked Niutea and her children to vacate the land. In September 2001, the then solicitors for Rosaline wrote to Niutea and Roger to vacate the land within three months and cease any construction on the land. Niutea in her evidence said that from 2000 to the time these proceedings were filed, Rosaline has been writing to her and her children or telling her and her children to vacate the land. By letter dated 18 October 2010, Rosaline again wrote to Niutea and her children to vacate the land and remove all the structures they have built on the land without her consent. This seems to be the last direct communication from Rosaline to the defendants to vacate the land before she brought these proceedings on 8 December 2010.
    
16. In spite of the communications from Rosaline to vacate the land and to cease any construction on it, Roger built his one bedroom structure on the land in 2004 – 2005. In 2006, Niutea repaired the small shop built by Rosaline's parents and added a small extension to it. It would be inequitable to require Rosaline to compensate the defendants for those structures which the defendants have built on her land contrary to Rosaline's clear instructions to vacate the land and cease any construction. If the defendants have incurred expenses for building those structures and will incur further expenses in relocating those structures elsewhere, those are expenses they have brought upon themselves.
    
17. In the letter dated 18 June 2010 by Rosaline to the defendants, she told the defendants to vacate the land by 30 September 2010 and take with them the structures they have built on the land without her consent. In this trial, Rosaline testified that she does not want any of the structures built by the defendants on the land and she is willing to let the defendants remove those structures including the shop and its extension and take them away.
    
18. In the circumstances, the defendants should dismantle and remove from the land the shop and its extension, Roger's one bedroom structure, and their shower. Rosaline should not have to pay compensation for those structures or any costs for their relocation.
    
19. In relation to the fill, I have also come to the conclusion that the defendants claim for compensation for the fill should be refused. From 2000 up to 2010, Rosaline had been telling the defendants to vacate her land. But they continued to remain on the land. Any fill the defendants brought onto the land to prevent flooding was for their own convenient and continuing occupation of the land in spite of clear instructions over the years from Rosaline to vacate the land. In any event, the fill is always washed away by the rain or sinks to the bottom. That is why the defendants, according to their own evidence, have had to bring in new fill every year during heavy rain. So the fills cannot be an improvement to the land because it has been washed away. But even if it is, it was an improvement made by the defendants to the land contrary to Rosaline's repeated instructions for them to vacate the land. The fills were really for the defendants own convenient and continuing occupation of the land contrary to Rosaline's instructions to vacate the land. In view of these instructions from Rosaline as owner of the land, the defendants are clearly trespassers on the land.
    
20. There was also no dispute at trial that Niutea and her family occupied the land from 2000 up to now without paying any rent to Rosaline. They have also been operating the small shop on the land without paying any rent to Rosaline. In these proceedings, Rosaline is not claiming any rent from the defendants for their use and occupation of her land from 2000 up to now.
    
21. In all these circumstances, it will be inequitable to require Rosaline to pay any compensation to the defendants for the improvements they claim to have made to the land. The defendants will have to remove their structures including the shop and its extension.
    
22. The first issue is therefore resolved in favour of the plaintiff.
    

Second issue: If the plaintiff Rosaline should pay compensation to the defendants how much should she pay?

23. In view of the conclusion I have reached on the first issue that it will be inequitable to require Rosaline to pay any compensation to the defendants for the improvements they claim to have made to the land, the second issue does not arise.
    

Third issue: If the plaintiff Rosaline does not have to pay compensation, should the defendants vacate the land and yield up possession of the land?

24. As Rosaline is the registered owner of the land and the defendants are effectively trespassers on the land they should vacate the land and yield up possession of the land to Rosaline.
    
25. The defendants asked for four months to vacate the land if they are ordered to vacate the land. I am not able to accept this. Rosaline has been asking the defendants many times since 2000 to vacate the land giving them three months and sometimes more than three months to vacate the land. Up to now they have not done so. As a result, the plaintiff has had to bring these proceedings. Even though in her claim Rosaline seeks an order for the defendants to vacate her land in 21 days, she agreed during the trial to extend that time to four weeks. That would be a reasonable time period. The defendants also have only a small shop, a one bedroom structure, and a shower which can easily be removed.
    

Conclusions

(a) The defendants and all or any of their children, servants, or family members are ordered to vacate the land and to yield up possession thereof to the plaintiff within 30 days from today, that is, 23 January 2012.

(b) The defendants are also ordered to dismantle and remove the following structures from the land.

• (1) the shop on the land together with its extension built by the defendants,
• (2) the one bedroom structure built by the defendant Roger Tootooalii Stanley,
• (3) the defendants shower on the land.
  

The above structures are also to be removed within 30 days from today, that is, 23 January 2012.

(c) A permanent injunction is issued to forbid the defendants and all or any of their children, servants, or family members from re-entering onto the land after they have vacated it.

(d) General damages of $2000.00 are awarded to the plaintiff.

(e) The defendants counter claim for compensation is dismissed.

(f) Finally, counsel for the plaintiff and the defendants to file memorandum as to costs in ten days.

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CHIEF JUSTICE

Solicitor
Drake & Co Law Firm for plaintiff
Papalii Law Firm for defendants