Himphill v Nauer [2015] WSSC 244 (24 December 2015)

IN THE SUPREME COURT OF SAMOA
Himphill v Nauer [2015] WSSC 244

Case name:	Himphill v Nauer
Citation:	[2015] WSSC 244
Decision date:	24 December2015
Parties:	JAMES BEALER HIMPHILL Government Archivist of American Samoa and JAMES STEHLIN, Retired of Aleisa as Administrators of the Estate of Lucia Florence Himphill. (First Plaintiffs) AND JAMES BEALER HIMPHILL Government Archivist of American Samoa as Administrator of the Estate of Howard Stanley Himphill.(Second Plaintiff) AND SIO NAUER, Planter of Tanugamanono. (Defendant)
Hearing date(s):	-
File number(s):	CP: 141/14
Jurisdiction:	Civil
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:
Representation:	K Kruse for plaintiffs T K Enari for defendant
Catchwords:	-
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

JAMES BEALER HIMPHILL Government Archivist of American Samoa and JAMES STEHLIN, Retired of Aleisa as Administrators of the Estate of Lucia Florence Himphill.
First Plaintiffs

AND:

JAMES BEALER HIMPHILL Government Archivist of American Samoa as Administrator of the Estate of Howard Stanley Himphill
Second Plaintiff

AND

SIO NAUER, Planter of Tanugamanono.
Defendant

Counsel: K Kruse for plaintiffs
T K Enari for defendant

Decision: 24 December 2015

RULING OF NELSON J

1. The plaintiffs are administrators of certain estates claiming ownership over lands situated in Tanugamanono in Apia described as Lot 22 Plan 1065 and Lot 23 Plan 1040 (“the Lands”). One of the estates is that of Howard Stanley Himphill formerly of Samoa and American Samoa who died intestate in American Samoa on 05 March 2007 (“the Testator”).
2. The defendant and his family at all material times have been occupying the Lands and have been so occupying it for a number of years. The defendants sister Malia Kasia was living with the Testator at the time of his death as his spouse following the death of the Testators married wife. There is some dispute whether the Testator and Kasia were legally married.
3. The plaintiffs claim the defendants right of occupation derives from his parents who were given permission to occupy the Lands by the Testator as there was no one to look after the property. As such they say it is a revocable license only and was revoked by the death of the Testator or certainly by the wishes of the Administrators which has resulted in these proceedings. The defendants parents are buried on the land and there appears no evidence the Testator or the plaintiffs took steps to prevent or challenge this.
4. The plaintiffs have brought proceedings to evict the defendant and his family from the Lands. Proceedings are defended on various bases. One of the grounds is that an unprobated will of the Testator dated 02 May 1994 after making various testamentary dispositions in relation to properties in American Samoa, left all of the Testators “right title and interest” in the Lands to his “wife” Kasia.
5. The defendant is currently serving a lengthy term of imprisonment at Tafaigata prison for an unrelated matter. Defence counsel has filed for one Punaloa Sinapati Mareko who is Kasia’s son from a previous relationship to be substituted as defendant in place of the current defendant. Punaloa resides in American Samoa and there is no evidence he is or ever was in occupation of the Lands.
6. It is trite to state that before the plaintiffs can evict any person from the Lands they must establish the occupation is unlawful and/or contrary to the wishes of the registered owner. It seems what is at issue here is the second plaintiffs decision as Administrator of the Testators estate to evict the defendant and members of his family. What needs however in my view to be determined is firstly the validity of the unprobated will of the Testator dated 02 May 1994 and if said will is found to be valid, the right of the defendant if any to a beneficial share in the land as the brother of Kasia who appears to have also died intestate in 2009.
7. Other collateral issues would also require determination for example the validity of the Testator-Kasia union or “marriage” and whether there is available to the defendant a claim of adverse possession under the then law in view of the circumstances of occupation of the land by him and members of his family. There will undoubtedly be other collateral issues.
8. Contrary to counsels view I am of the opinion these matters cannot be properly determined based on the affidavits filed. Nor should they be ruled upon as part of an interlocutory application. Some of the affidavits are clearly in conflict on matters of fact and substance. In my assessment the matter should proceed to a full hearing and much would depend on the outcome of the enquiry into the unprobated will of 02 May 1994. If the defendant has any interest that the court in its equitable jurisdiction should protect pending a final determination of beneficial rights it can only derive from that will. Absent that, the plaintiffs are correct, his license to occupy was revocable and has with the demise of the Testator and in accordance with the wishes of the current Administrators ceased to exist.
9. The application for an eviction order to issue at this stage based on the affidavits only is declined. The case requires trial upon its merits in the normal way. The application to substitute Mr Punaloa as a defendant is refused. It seems to me the defendant notwithstanding his imprisonment has the stronger claim and is more entitled to be a party than one who has never resided on any part of the Lands or been part of its history.
10. The matter will be returned to the mention list of 25 January 2016 to set an appropriate trial date convenient to the parties and the witnesses acknowledging that some if not all of them will need to travel to Samoa for these purposes.
    

JUSTICE NELSON