Rimoni v Syddall [2012] WSSC 84 (12 December 2012)

SUPREME COURT OF SAMOA

Rimoni v Syddall [2012] WSSC 84

Case name: Rimoni v Syddall

Citation: WSSC

Decision date: 12 December 2012

Parties:
HAROLD ANDREW SYDDALL as the ADMINISTRATOR OF THE ESTATE OF JANE ELIZABETH SKELTON, deceased. Defendant and MARIA PILI AH YEK of Matautu-tai as the ADMINISTRATRIX OF THE ESTATE OF JANE ELIZABETH SKELTON, deceased.Prospective Defendant

Hearing date(s): 7 December 2012

File number(s): CP 110/11

Jurisdiction: Civil

Place of delivery: Mulinuu

Judge(s): Sapolu CJ

On appeal from:

Order:

Representation:
S Ponifasio for plaintiff
S Tuala for prospective defendant

Catchwords:

Words and phrases:
de bonis non
bona vacantia

Legislation cited:

Cases cited:
Ketteman v Hansel Properties Ltd [1987] AC 189
Liff v Peasely [1980] 1 A11 ER 623
Byron v Cooper
Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45
Mabro v Eagle, Star and British Dominions Insurance Co Ltd (1932) 1 KB 485 cf.
Davis v Elsby Brothers Ltd [1961] 1WLR 170; [1960] 3 A11 ER 672.

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

FILE NO. CP 110/11

IN THE MATTER OF the Limitation Act 1975

A N D

IN THE MATTER OF a freehold land being Lot 188/53 in Plan 3179 at Lotopa/Alafua.

BETWEEN

FUIMAONO ESERA RIMONI, farmer of Salani and Lotopa/Alafua.

Plaintiff

A N D

HAROLD ANDREW SYDDALL as the ADMINISTRATOR OF THE ESTATE OF JANE ELIZABETH SKELTON, deceased

Defendant

A N D

MARIA PILI AH YEK of Matautu-tai as the ADMINISTRATRIX OF THE ESTATE OF JANE ELIZABETH SKELTON, deceased.

Prospective Defendant

Counsel: S Ponifasio for plaintiff

S Tuala for prospective defendant

Hearing: 7 December 2012

Judgment: 12 December 2012

JUDGMENT OF SAPOLU CJ

Proceeding

1. This proceeding is concerned with a motion by the plaintiff Fuimaono Esera Rimoni of Lotopa/Alafua to join the prospective defendant as an additional defendant to his claim filed on 13 August 2011 for possessory title to a certain piece of land at Lotopa by way of adverse possession and for him to be registered as owner of that land.

Background

2. The plaintiff’s claim was filed against one Harold Andrew Syddall (Mr Syddall), the defendant, who was granted probate on 15 February 1926 as executor of the will and administrator of the estate of one Jane Elizabeth Skelton who died on 7 December 1925. According to the plaintiff, the land to which he is claiming possessory title by way of adverse possession is part of the estate of the said Jane Elizabeth Skelton (Ms Skelton). The land is described as “Lot 188/53 in Plan 3178”.
2. The plaintiff’s claim was set down for mention on 19 September 2011 and had to be served on Mr Syddall as defendant. On 6 September 2011, an ex parte motion was filed on behalf of the plaintiff to dispense with service of the claim on Mr. Syddall. On 7 September 2011, I made the order that the ex parte motion to dispense with service be served on the Attorney General for consideration whether the bona vacantia rule applied. This was because there is no mention in the statement of claim that Ms Skelton had a will and there is no mention of any surviving successor to the Skelton estate under the provisions of s.44 of the Administration Act 1975 relating to the rules of succession in an intestacy. The matter was then set down for mention on 13 September 2011 for the Attorney General or his representative to appear. A representative of the Attorney General duly appeared on that date. The matter was re-mentioned again on 19 September 2011. On that date, the matter was again adjourned to 3 October 2011 and counsel were ordered, inter alia, to produce photocopies of the relevant parts of the land register which set out the history of the land which is the subject of the plaintiff’s claim.
3. By an eighteen paragraph supplementary affidavit sworn on 28 September 2011 and filed on the same date, the plaintiff mentioned in paras 14 and 15 that letters of administration with will annexed de bonis non in the estate of Ms Skelton had been granted to the prospective defendant Maria Pili Ah Yek of Matautu-tai on or about 11 March 1994. Thus, the prospective defendant had become administratrix de bonis non of the estate of Ms Skelton on or about 11 March 1994. This means that Mr Syddall as administrator of Ms Skelton’s estate must have died leaving part of the estate unadministered and it was necessary to appoint the prospective defendant as administratrix to complete the administration of the estate.
4. When this matter was again re-mentioned on 3 October 2011, counsel representing the Attorney General withdrew from taking further part in this proceeding as Ms Skelton’s estate then appeared to have an administratrix de bonis non. The matter was then adjourned sine die to be re-listed on the application of counsel when ready to proceed with arguments. This matter was then re-listed for re-mention on 26 March 2013 on application by counsel for the plaintiff. On 26 March 2012, I told counsel for the plaintiff to find out for certain whether Mr Syddall the administrator of the estate, had passed away and whether a new administrator had been appointed in his place. The matter was then further adjourned for re-mention on 16 April 2012. According to the submissions by counsel for the prospective defendant, it was on 27 March 2012 that the prospective defendant was served for the first time with copies of the documents filed in Court by the plaintiff. A covering letter by counsel for the plaintiff advised the prospective defendant that she was to appear in Court on 16 April 2012.
5. On 16 April 2012, counsel appeared on behalf of the prospective defendant. However, the matter had to be further adjourned to 30 April 2012 for counsel for the plaintiff to appear. On 30 April 2012 I met in chambers with both counsel for the plaintiff and the prospective defendant and the matter was further adjourned to 21 May 2012 for counsel for the plaintiff to file and serve a formal motion for joinder of the prospective defendant as a party to this proceeding. Such motion was filed on 7 May 2012.
6. After 21 May 2012, the matter was again re-mentioned on 11 June and 25 June 2012 when a hearing date was set for the week commencing 3 December 2012. On 25 June 2012, counsel for the prospective defendant filed a notice of opposition with supporting affidavits to the plaintiff’s motion for joinder of the prospective defendant as an additional defendant to this proceeding. It is that motion and the notice of opposition I have had to deal with.

The issue

7. Counsel for the prospective defendant was very critical in his submissions about the way counsel for the plaintiff had handled this matter. It is not necessary for me in this judgment to express any views on those criticisms or the response from counsel for the plaintiff. I will go direct to the decisive issue which was raised by counsel for the prospective defendant. This is whether the prospective defendant should be allowed to be joined as an additional defendant to the plaintiff’s claim given the provisions of the Limitation Amendment Act 2012 which came into force on 26 January 2012.

Discussion

8. As already mentioned, the plaintiff filed a claim on 13 August 2011 against Mr Syddall as defendant and administrator of the estate of Jane Elizabeth seeking a declaration for possessory title by way of adverse possession to the land at Lotopa described as “Lot 188/53 in Plan 3178” which belonged to Ms Skelton’s estate. It is evident from the affidavit evidence that Mr Syddall was the wrong defendant as he must have passed away. This is because the prospective defendant had been appointed administratrix de bonis non of Ms Skelton’s estate in 1994.
9. From the affidavit evidence and submissions of counsel, it is more probable than not that the plaintiff or his counsel was aware by the time he filed his claim that the prospective defendant had been appointed in 1994 as administratrix de bonis non. But even if that is not so, it is evident from the plaintiff’s supplementary affidavit of 28 September 2011 that by that date the plaintiff had become aware that the prospective defendant had already been appointed administratrix de bonis non of Ms Skelton’s estate in 1994. However, it was not until 27 March 2012, after this matter was re-mentioned in Court on 26 March 2012, that the plaintiff’s claim and other documentation were served on the prospective defendant. Then it was not until 7 May 2012 that the plaintiff filed a motion for joinder of the prospective defendant as an additional defendant to his claim. By this time, the Limitation Amendment Act 2012 had already come into force on 26 January 2012 being the date of assent by the Head of State.
10. The main provision of the Limitation Amendment Act 2012 that is material for present purposes is s.5 which provides:

“For section 9 of the Principal Act, substitute:

“9(1) Subject to section 3(1) of the Limitation Act 2012 and to this Part, from the date the Limitation Amendment Act 2012 commenced:

(a) no right, title or interest in or to land adverse to or in derogation of the title of the registered owner shall be acquired by any length of possession by virtue of adverse possession relating to real property; and

(b) no right, title or interest in or to land adverse to or in derogation of the registered owner shall be registered by virtue of a claim to title by adverse possession; and

(c) no title of any such registered owner shall be extinguished by the operation of any statute of limitation.

“(2) Subject to section 3(1) of the Limitation Amendment Act 2012 and to this Part, from the date the Limitation Amendment 2012 commenced:

(a) no right, title or interest in or to land shall be acquired by adverse possession; and

(b) no right, title or interest in or to land shall be registered by virtue of a claim to title by adverse passion; and

(c) no party shall raise adverse possession to defend or resist any claim by a registered owner to:

(i) recover land; or

(ii) evict a party; or

(iii) redefine boundaries of land”.

11. The overall effect of s.5 of the Act is to bar any further acquisition of title to land by way of adverse possession as from the commencement of the Act. This is because the new s.9, as inserted by s.5 of the Act, bars the acquisition of title to land by way of adverse possession, bars the registration of any such title, bars the extinguishment of any title to land by reason of adverse possession, and prevents the raising of adverse possession as a defence to any action for recovery of land, eviction of a party from land, or for redefinition of land boundaries.
12. However, the new s.9, inserted by s.5 of the Act, is to be subject to s.3(1) of the Act which provides:

“This Act does not apply to the following types of actions that were filed with the Supreme Court, served upon the other party or parties and defended or resisted by the defendant party on the grounds of adverse possession before or on the day this Act commenced:

“(a) actions to recover land;

(b) actions to evict a party from the land;

(c) actions to redefine boundaries of land”.

13. In my opinion, s.3(1) of the Act is a savings provision; it preserves actions for recovery of land, eviction from land, and redefinition of land boundaries that had been filed and defended or resisted by a defendant on the ground of adverse possession before or on the day the Act came into operation. Section 5 bars any further acquisition of right, title, or interest in or to land as from the commencement of the Act but s.3 preserves certain specified actions which had been filed, served, and defended or resisted by a defendant before or on the day the Act came into operation.
14. It was submitted with some degree of doubt by counsel for the plaintiff that the action by the plaintiff is not an action for recovery of land, eviction of a party from land, or for redefinition of land boundaries; it is an action for acquisition of title to land by way of adverse possession. Furthermore, the plaintiff’s action is not an action that was served upon and defended or resisted by the defendant before or on the day the Act came into operation which was 26 January 2012. The defendant’s action was only served on the prospective defendant on 27 March 2012. It follows that on a literal interpretation of s.3(1), it would not apply to the plaintiff’s action. In my opinion, if this submission by counsel for the plaintiff is correct, it would mean that the plaintiff’s action is not saved or preserved by s.3(1). It would, therefore, have come to an end when the Limitation Amendment Act 2012 came into operation because the Act, from the time of its commencement, bars any acquisition of title to land by way of adverse possession. Anyway, the plaintiff’s motion for joinder of the prospective defendant can be also be dismissed on a different but related basis.
15. Rule 23 of the Supreme Court (Civil Procedure) Rules 1980 which applies to the joining of parties to proceedings provides:

“The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as appear to the Court to be just, order that the name of any party improperly joined, whether a plaintiff or defendant be struck out, and that the name of any person who ought to have been joined or whose presence before the Court may be necessary to enable the Court effectually and completely to adjudicate upon and settle all the questions in the action, be added, whether as plaintiff or defendant provided however that no person shall be added as a plaintiff without his own consent”.

16. It is clear from r.32 that the Court at any stage of proceedings may on such terms as appear to be just order that the name of any party improperly joined as a plaintiff or defendant be struck out and that the name of any other person be added as a new plaintiff or defendant where that will enable the Court to “effectually and completely” adjudicate upon and settle all questions involved in an action. However, while the Court may strike out the name of a defendant improperly joined and add in the name of any person as a new defendant, r.32 is silent as to the time from which such an amendment is to take effect. In this regard, I will refer to a decision of the House of Lords and a decision of the High Court of Australia where a new defendant is sought to be joined after the expiry of a limitation period for the cause of action.
17. In Ketteman v Hansel Properties Ltd [1987] AC 189, 199-200, Lord Keith of Kinkel stated:

“It has long been a rule of practice that amendment should not be allowed for the joinder of an additional defendant in a situation where a relevant period of limitation has already expired in relation to the cause of action against him”.

18. Lord Keith at p.200 then referred to the two theories which had been advanced in support of that rule of practice. The first is the theory of “relation back” and the second is the theory of “no useful purpose”. In terms of the “relation back” theory, the new defendant becomes a party to the action from the date that proceedings were issued against the original defendant, that is to say, the joinder of the new defendant related back to that date. Because it would be unjust to join the new defendant as a party when the limitation period for the action had expired, joinder will not be allowed as it will deprive the new defendant of a valid limitation defence. In terms of the “no useful purpose” theory which was first expressed by Brandon LJ in Liff v Peasely [1980] 1 A11 ER 623, 641 – 643, no useful purpose would be served by the joinder of a new defendant after a limitation period had expired because he would be deemed to have become a party from the actual date of joinder and therefore would have a valid limitation defence. Joinder would therefore not be allowed.
19. After consideration of those two theories, Lord Keith in Ketteman v Hansel Properties Ltd [1987] AC 189, 200 concluded:

“In my opinion there are no good grounds in principle or in reason for the view that an action is brought against an additional defendant at any earlier time than the date upon which that defendant is joined as a party in accordance with the rules of Court. Further, I consider Byron v Cooper, 11 Col & Fin 556 to constitute clear authority in this House against the relation back theory”.

20. It seems to me that the true position is that it is a rule of practice that a new defendant would not be joined as a party to an action where the relevant limitation period has expired because such defendant would have a valid limitation defence of which he would be deprived if he is allowed to be joined as a party. The “relation back” and “no useful purpose” theories are only theories used by the Courts in support of the said rule of practice. The House of Lords in Ketteman v Hansel Properties Ltd [1987] AC 189 clearly favoured the “no useful purpose” theory as opposed to the “relation back” theory.
21. In Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45 which was cited by counsel for the plaintiff, Dawson J stated at para 6:

“At one time it was thought that the substitution or addition of a defendant by amendment related back to the commencement of the proceedings so that, if the proceedings were commenced before the expiry of the limitation period, the amendment would defeat the limitation period even though the amendment was made after the expiry of that period. Upon that view, the reason for not allowing the amendment was that it would deprive the defendant substituted or added of the benefit of the limitation period: see Mabro v Eagle, Star and British Dominions Insurance Co Ltd (1932) 1 KB 485 cf. Davis v Elsby Brothers Ltd [1961] 1WLR 170; [1960] 3 A11 ER 672. The accepted view now is particularly having regard to the present form of the relevant rule (r.9.11(3)) – that the substitution or addition of a defendant by amendment does not relate back to the commencement of proceedings but takes effect from the time of the amendment. That means that the amendment cannot prejudice any existing rights under a statute of limitations (or any other limitation period). Accordingly, leave to amend to substitute or add a defendant who has a good defence under a period of limitation will generally be refused as serving no useful purpose: Liff v Peasley [1980] 1 WLR 781; [1980] 1 A11 ER 623; Ketteman v Hansel Properties Ltd [1987] AC 189”.

22. The issue in this proceeding is not about a limitation defence, that is to say, a period of limitation that has expired before the prospective defendant was sought to be joined as a party. That is because no limitation defence arises from the facts and the prospective defendant is not relying on any such defence. The real issue is whether to allow the joinder of the prospective defendant as a party to the proceedings would deprive her of a valid statutory defence. This statutory defence is the Limitation Amendment Act 2012 which bars any further acquisition of title to land by way of adverse possession. The rule of practice mentioned in Ketteman v Hansel Properties Ltd [1987] AC 189, 199-200 that an amendment should not be allowed for the joinder of an additional defendant where a relevant limitation period has expired is therefore not strictly in point. However, it is only a short step to take from saying that an amendment should not be allowed for the joinder of an additional defendant who would have a valid limitation defence to saying that an amendment should not be allowed for the joinder of an additional defendant who would have a valid statutory defence. I am prepared to take that short step and to do so in this proceeding.
23. It is also clear from Ketteman v Hansel Properties Ltd [1987] AC 189, 199-200 and Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45, para 6 that an amendment for joinder of an additional defendant takes effect from the time of the amendment and not from the time that proceedings were issued against the original defendant. This is due to the acceptance by the House of Lords in Ketteman v Hansel Properties Ltd and the High Court of Australia in Bridge Shipping Pty Ltd v Grand Shipping SA of the “no useful purpose” theory as opposed to the “relation back” theory as the true basis for the rule of practice already mentioned.
24. It follows from what has been said that if the amendment sought by the plaintiff for joinder of the prospective defendant as an additional defendant is allowed, such amendment would have taken effect from 7 May 2012 when the motion for joinder was filed and served on the prospective defendant. This was after 26 January 2012 when the Limitation Amendment Act 2012 which bars any further acquisition of title to land by way of adverse possession came into force. To allow the amendment sought by the plaintiff would deprive the prospective defendant of a valid statutory defence provided by the Act. The amendment sought is therefore denied.

Conclusion

25. For the foregoing reasons, the plaintiff’s motion for joinder of the prospective defendant as a party to his action for possessory title to the land in question by way of adverse possession is denied. Counsel to file memorandum as to costs in 10 days.
    

CHIEF JUSTICE