Pereira v Brown [2018] WSSC 126 (7 December 2018)

SUPREME COURT OF SAMOA
Pereira v Brown [2018] WSSC 126

Case name:	Pereira v Brown
Citation:	[2018] WSSC 126
Decision date:	07 December 2018
Parties:	TOFILAU ANTHONY PEREIRA, Businessman of Saleufi. (Applicant) AND LEAPAI RICHARD BROWN, SALEAUMUA HOWARD TAFUA & SERVANTS, & AGENTS & FAMILY MEMBERS. (Respondents)
Hearing date(s):	07 December 2018
File number(s):	CP 128/18
Jurisdiction:	CIVIL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	- The evidence clearly establishes these pieces of freehold land are legally owned by the plaintiff and he is entitled to the courts intervention to protect such ownership. The defendants customary lands are far removed from the plaintiffs lands there being not only a public access road in between but also property belonging to the EFKS Church. Lot 311 is also in between but there is no evidence or suggestion this belongs or is controlled by the defendants. But even if it were, there is a public access road between this parcel and the lands. There is no basis from the evidence upon which the defendants can interfere in the exercise of the plaintiffs lawful rights as owner of his freehold. Defendants own counsel conceded this point at trial. - Plaintiffs counsel has abandoned the plaintiffs claim to damages and sought that the injunction if issued be a permanent one. I see no impediment or reason why this cannot be done. I give the necessary leave and there will accordingly issue a permanent injunction restraining the defendant his agents/servants and any other person or relatives from continuing with trespassing on the lands, blocking, obstructing, interfering or impeding works carried out by the plaintiff on the lands or interfering with a survey of the lands. As the plaintiff has abandoned his damages claim that part of his action is struck out. - The plaintiff is entitled to costs. Necessary memorandum to be filed within 7 days. Defence counsel to be copied if indemnity costs are sought.
Representation:	P Chang for Applicant T F Tufuga for respondents
Catchwords:	Registered proprietors as joint tenants of freehold property – boundary fence – reclamation work – unchallenged evidence – customary lands - injunctive relief to uphold legal rights – general damages – aggravated and exemplary damages – permanent injunction – indemnity costs.
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

TOFILAU ANTHONY PEREIRA, Businessman of Saleufi.
Applicant

AND:

LEAPAI RICHARD BROWN, SALEAUMUA HOWARD TAFUA & SERVANTS, & AGENTS & FAMILY MEMBERS.
Respondents

Counsel:
P Chang for Applicant
T F Tufuga for respondents

Hearing: 07 December 2018

Decision: 07 December 2018

D E C I S I O N

Background

1. The plaintiff is a businessman of Saleufi and together with his wife are the registered proprietors as joint tenants of freehold property in Fugalei, being Parcels 285, 286, 287, 288, 289, 290, 291, 292, 293, 294, 295, 296, 299, 303. 304 and 307 in plan 4444L (“the lands”).
2. The lands were purchased in 1992 and 1993 save for one Lot purchased in 2001. The plaintiff desires to erect a boundary fence in order to better secure the lands upon which he intends to erect warehouses and other structures supporting his main business premises located on the main road. Much of the rear of the lands were swamp when purchased and the plaintiff has over the years expended considerable funds in reclamation works. To the East he is bounded by the main road (Fugalei Street), to the North by a meandering stream, to the West by the Williams property and to his immediate South SMI Hardware and across a dirt access road, EFKS Church land: see the plan produced as Exhibit “P-2” for the plaintiff.
3. The defendant Leapai Richard Brown is a resident of the village of Vaimoso and Saleaumua Howard Tafua a resident of the sub-village of Fugalei. They are members of the Leapai Family who own or control customary land situated immediately south of the EFKS property. The plaintiff stated in unchallenged evidence at the trial there is a small stream between the EFKS land and the defendants customary lands. The plaintiff is not aware who owns or occupies the vacant Lot 311 to the West of the EFKS property and across the access road from the plaintiffs south-western boundary.
4. The defendants elected not to appear at trial. Their counsel advised they were engaged in a family fa’alavelave in neighbouring American Samoa. No adjournment application was made and in any event, would have been unsuccessful considering the urgency of the matter and the fact that the defendants were given notice of these proceedings over one month ago. There was consequently no evidence adduced by the defendants which left their counsel in an impossible situation.
5. The plaintiffs evidence was that on at least two occasions he sent surveyors to pinpoint the boundary pegs of the rear portions of the lands. On both occasions they were confronted by the second named defendant who asserted ownership over the lands and who issued threats against the surveyors and the plaintiff. These actions have caused him and his wife considerable distress and he has come to the court seeking injunctive relief to uphold his legal rights and allow his developments to proceed. He also seeks general damages as well as aggravated and exemplary damages due to the conduct of the defendants. He also seeks costs.

Decision

6. The evidence clearly establishes these pieces of freehold land are legally owned by the plaintiff and he is entitled to the courts intervention to protect such ownership. The defendants customary lands are far removed from the plaintiffs lands there being not only a public access road in between but also property belonging to the EFKS Church. Lot 311 is also in between but there is no evidence or suggestion this belongs or is controlled by the defendants. But even if it were, there is a public access road between this parcel and the lands. There is no basis from the evidence upon which the defendants can interfere in the exercise of the plaintiffs lawful rights as owner of his freehold. Defendants own counsel conceded this point at trial.
7. Plaintiffs counsel has abandoned the plaintiffs claim to damages and sought that the injunction if issued be a permanent one. I see no impediment or reason why this cannot be done. I give the necessary leave and there will accordingly issue a permanent injunction restraining the defendant his agents/servants and any other person or relatives from continuing with trespassing on the lands, blocking, obstructing, interfering or impeding works carried out by the plaintiff on the lands or interfering with a survey of the lands. As the plaintiff has abandoned his damages claim that part of his action is struck out.
8. The plaintiff is entitled to costs. Necessary memorandum to be filed within 7 days. Defence counsel to be copied if indemnity costs are sought.

JUSTICE NELSON