Himphill v Nauer [2016] WSSC 194 (24 October 2016)

IN THE SUPREME COURT OF SAMOA
Himphill v Nauer [2016] WSSC 194

Case name:	Himphill v Nauer
Citation:	[2016] WSSC 194
Decision date:	24 October 2016
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:	The following orders are therefore to issue: (i) vesting possession of the land and all structures thereon in the plaintiffs subject to the conditions set out hereunder; (ii) the defendant and members of his family are to vacate the land within 3 months of todays date; which I will fix as the 31st of January 2017 and in doing so shall do no harm or injury to the land or anything thereon situated or contained; (ii) the defendant and his family shall within that period relocate the graves of their parents situated on the land. In making that determination I have taken into account the customary protocol that needs to be observed in such matters. And in particular the fact that the registered owner of the land Howard Himphill did not raise objection to such burials neither did he require during his lifetime or even by his unprobated will that the graves be removed; (iv) the plaintiffs are therefore further ordered to assist in the cost of such relocation to the extent of $3,500.00 due and payable only on completion of the said relocation. (v) The plaintiffs are further ordered to compensate the defendant and his family for the costs of the partial re-roofing of the building which I fix for lack of any better evidence in my assessment at $1,500.00. (vi) No further compensation shall be due and payable to the defendant or members of his family in respect of this matter (vii) In respect of costs the parties shall bear their own respective costs considering the circumstances of this case. (viii) And finally it is ordered that the unprobated original will of Howard Himphill dated 02 May 1994 on the court file is to be released forthwith to the plaintiffs.
Representation:	K Kruse for plaintiffs T P Mulitalo for defendant
Catchwords:	revocable license - registered owner of the land – estate - administrator - unprobated Last Will and Testament - ownership
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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 Stanly Himphill.
Second Plaintiff

AND:

SIO NAUER, Planter of Tanugamanono.
Defendant

Counsel: K Kruse for plaintiffs
T P Mulitalo for defendant

Decision: 24 October 2016

DECISION OF NELSON J

[1] The background facts are essentially outlined in the courts earlier decision dated 24 December 2015. Subsequent to that ruling, Mr Enari withdrew as counsel for the defendant indicating that he only represented the intending defendant but not the actual defendant in this matter Mr Nauer. As per the defendants request he was granted time to instruct replacement counsel and Mr Mulitalo now appears and has acted on his behalf.

[2] Defendants counsel has properly conceded that insofar as a legal interest in the land is concerned, the defendant probably has none. The revocable license granted by the deceased registered owner of the land Mr Howard Himphill to the defendants family has been revoked by the administrators of Mr Himphills Estate. The only potential claim the defendant has to the land is by virtue of his status as the nephew of Kasia the married wife of Howard Himphill at the time of his death. And upon whom the registered owner devolved the Samoa property by clause 4 of his unprobated Last Will and Testament dated 02 May 1994. The defendants mother Palepa was the sister of the said Kasia who died intestate in American Samoa after Howard.

[3] There is no question that in law therefore the eviction order sought by the administrators of Howard Himphills Estate should issue as against the defendant, his agents, members of his family and others as claimed. The administrators of the estate are empowered to make such orders. Including removal of any graves located on the property.

[4] The issue however that arose was as to ownership of the house situated at the rear of the land. This is an old structure with a central limestone core that has clearly suffered the ravages of time. But I am satisfied from my inspection of the house and land that the original structure was renovated and added to over the years. In particular extensions to the seaward and inland side of the building.

[5] The defendant claims these extensions and renovations were carried out over the period of occupation by him and his family which according to his evidence occurred post - 1977. He claims the sum of $100,000.00 as fair recompense for the value added to what was originally only a two room house with adjoining kitchen and bathroom facilities. No mention was made of improvements carried out in respect of any other part of the land.

[6] The issue of who carried out the renovations and extensions was the subject of differing evidence from the plaintiffs trustee Mr James Himphill and the defendant. Mr Himphill maintained this was the homestead built and occupied by his grandparents. And when his grandfather died, his grandmother remarried and lived in the house with her second husband until her death in 1956. The house was subsequently occupied by his father Howard Himphill and his first wife Maria Ioana Mareko. When they moved to live in American Samoa the house was tenanted out to various individuals.

[7] During the 1980’s he said work was carried out on the house by his father. In particular in 1986 the seaward side was extended by addition of a concrete slab and extra rooms. To this end he produced Exhibit “P-1” for the plaintiffs dated 05 December 1986 being a building permit approval from the Ministry of Works to extend the building. He also produced Exhibit “P-2” for the plaintiffs being a series of photographs of the work in its early stages. It is clear from my visit to the property the inland side of the house was also extended but the evidence was unclear as to when, by whom and at whose cost.

[8] My best non-expert assessment is it likely was done about the same time as the seaward extension. There is a clear similarity of the exterior timber of the front and side of the seaward extension to the back and side of the inland extension. I also noted similar degradation of the frames of the windows in both these areas as well as the interior. I therefore draw the conclusion that these works were probably carried out by Howard Himphill in 1986 or thereabouts.

[9] What is patently different and readily stands out is the newness of the roofing iron on the front part of the roof of the building, front being the road side. That clearly was not done in 1986 or thereabouts. Given the rusted and worn condition of the remainder of the roof it is likely this partial re-roofing was necessitated by leakage. I accept therefore this partial re-roofing was done during the defendants familys occupation not-withstanding his failure to mention it specifically in his evidence.

[10] There is no evidence any other major repairs or renovations were carried out on the building by him and/or his family. There was a suggestion that his carpenter brother would be called to provide such evidence. But the evidence of that brother was not put to James Himphill in cross examination when he testified and now some two months later, the evidence of the brother must be excluded.

[11] The defendants evidence that his family carried out all the extensions and renovations to the building cannot in light of the plaintiffs documentary and other evidence be accepted. The defendant was unable to produce any receipts, building permit approvals or anything of that nature to substantiate his claims.

[12] I am therefore satisfied to the required standard the house was originally built by Mr James Himphills grandfather and is owned by the estate of his son Howard Himphill. And that any major extensions and renovations to the building were carried out by Howard Himphill at his sole cost and expense except for the partial re-roofing referred to earlier.

[13] The court must determine these matters based on the evidence adduced and these are the conclusions I have drawn in accordance with what has been placed before me. I also bear in mind that according to the defendants own evidence none of these renovations and/or extensions were done by him or at his cost. His testimony was they were carried out by his carpenter brother who was residing at the time in a different village. The brother was not and never has been a party to the present proceedings.

[14] The following orders are therefore to issue:

(i) vesting possession of the land and all structures thereon in the plaintiffs subject to the conditions set out hereunder;

(ii) the defendant and members of his family are to vacate the land within 3 months of todays date; which I will fix as the 31^st of January 2017 and in doing so shall do no harm or injury to the land or anything thereon situated or contained;

(ii) the defendant and his family shall within that period relocate the graves of their parents situated on the land. In making that determination I have taken into account the customary protocol that needs to be observed in such matters. And in particular the fact that the registered owner of the land Howard Himphill did not raise objection to such burials neither did he require during his lifetime or even by his unprobated will that the graves be removed;

(iv) the plaintiffs are therefore further ordered to assist in the cost of such relocation to the extent of $3,500.00 due and payable only on completion of the said relocation.

(v) The plaintiffs are further ordered to compensate the defendant and his family for the costs of the partial re-roofing of the building which I fix for lack of any better evidence in my assessment at $1,500.00.

(vi) No further compensation shall be due and payable to the defendant or members of his family in respect of this matter

(vii) In respect of costs the parties shall bear their own respective costs considering the circumstances of this case.

(viii) And finally it is ordered that the unprobated original will of Howard Himphill dated 02 May 1994 on the court file is to be released forthwith to the plaintiffs.

JUSTICE NELSON