IN THE COURT OF APPEAL OF SAMOA
HELD AT APIA

C.A. 2/97

BETWEEN

WALLWORK ENTERPRISES LIMITED,
a duly incorporated company having its registered office at Lalovaea
Appellant

AND

CARDINAL PIO TAOFINUU,
as the Roman Catholic Bishop for the Time Being of the Diocese of Samoa
Respondent

Coram: The Rt Hon. The Lord Cooke of Thorndon, President
The Rt Hon. Sir Maurice Casey
The Hon. Sir Ian Barker

Hearing: 3 March 1998

Counsel: T.M.S. Toailoa for Appellant T.K. Enari for Respondent

Judgment: 6 March 1998

JUDGMENT OF THE COURT DELIVERED BY SIR IAN BARKER

This appeal is from a reserved judgment of the Chief Justice who found for the respondent on his claim for possession of certain land at Sinamoga near Apia. The Chief Justice rejected the appellant's defence under s.9 of the Limitation Act 1975, based on its alleged adverse possession of the land. The hearing had taken place on 9 June 1995: the Court took a view on 28 November 1996. The judgment was delivered on 6 December 1996.

The land is on two adjoining lots described on survey plans as Numbers 81 and 83: it has an area of some 75 acres. It was registered in the name of the 'Roman Catholic Mission' pursuant to a Court Grant in 1896. The land is now registered in the name of the respondent as Roman Catholic Bishop for the time being of the Diocese of Samoa. After considering documentary and survey evidence the Chief Justice held that the land was freehold land: he rejected a claim that it was customary land.

If the land had been customary land, then s.4 of the Limitation Act 1975 ('the Act') provides that nothing in that Act should apply to customary land or titles. The Chief Justice rejected an alternative contention by the appellant that s.9(2) of the Act operated to defeat the respondent's claim for possession because action to recover it had not been brought within the time limits specified in the subsection, i.e. the appellant's claim based on 'adverse possession'.

In his judgment, the Chief Justice carefully canvassed the evidence given by both parties - particularly the evidence called for the appellant in support of the claim based on adverse possession. He rejected, as a foundation for such a claim, the evidence of an elderly lady, Perise Nuuialii Neru, that the land was customary land pertaining to the title Melei. The undisputed documents showed registration of the land in the name of the respondent or his predecessors since 1896.

The Chief Justice also set out extensively the evidence of the same witness in support of the adverse possession claim based on her recollections of (a) alleged cultivation of the land by her forbears and (b) their employment of labourers said to have worked for the Germans prior to the New Zealand annexation of Samoa during the First World War. Assuming the honesty of this witness, the Chief Justice pointed out obvious difficulties inherent in her narrative. He summarised the evidence of the respondent's witnesses on the adverse possession claim as 'rather vague, nebulous and imprecise'.

On the day before the case was due for hearing, counsel for the appellant filed a memorandum stating that the Judge's notes of evidence could not be located: for that reason, he submitted that the appeal should be allowed and a new trial ordered.

Enquiries made by the Court indicated that (a) the Chief Justice's notes of evidence cannot be located (b) the record was filed without these notes being included (c) no written request to the Registrar for a copy of the notes had been made by the appellant's solicitors, although verbal requests may have been made (d) no attempt was made by counsel for the appellant to confer with counsel who had appeared at the hearing before the Chief Justice to see whether an acceptable record of the evidence could be constructed from counsel's notes and recollections (e) counsel for the respondent was not notified until the day before the appeal hearing of the appellant's request for the appeal to be allowed and a new trial granted..

In assessing the request for a new trial, the following points should be noted:

(a) 	Leave to appeal out of time was granted to the appellant on 6 August 1997 on an application for enlargement of time filed on 24 December 1996.

(b) 	One of the terms of leave to appeal being granted was that the record be filed within 10 days.

(c) 	The record was filed without the notes of evidence but with no complaint from the appellant's solicitors about the lack of the notes.

(d) 	Rule 13 of the Court of Appeal Rules places the obligation of preparing an appeal record on an appellant. One of the items required to be included in the record is 'notes of evidence taken at the trial'.

(e) 	Under R.16, upon the lodging of the record and a praecipe to set down, the Registrar is to set the appeal down for hearing. Under R.20, the Registrar is to give the parties 10 days' notice of the hearing. As indicated earlier, at none of the various important stages on the road to an appeal hearing, did the appellant signal any dissatisfaction with the lack of the notes of evidence.

(f) 	Under s.56 of the Judicature Ordinance 1961 and R.25, this Court may order a new trial on wide general grounds.

(g) 	In Hunter and Ors v Police, in an unreported judgment delivered on 31 October 1990, this Court ordered a new trial in a criminal case where there was no proper record of the oral decision of a trial Judge convicting the appellants.

Counsel for the appellant appeared to have assumed that this Court would take a similar step to that taken in Hunter. He did not offer any argument in support of the appeal because the Judge's notes of evidence were not available.

Although expressed somewhat more fully in the notice of appeal, the appellant's essential grounds of appeal were:

(a) 	The Chief Justice was wrong to find that the land was freehold and not customary and therefore was land to which the Act had no application

(b) 	The Chief Justice wrongly rejected the appellant's claim based on adverse possession.

The first ground was primarily a legal question. The Court cannot see how the Chief Justice was wrong when he held that the land had been registered in the name of the respondent's predecessor in title since 1895 - a conclusion reached after perusing land records and hearing undisputed evidence from a surveyor and a senior officer of the Lands Department. It is not possible, over 100 years on, to question the validity of the original grant. The integrity of any land registration system requires that the register is paramount subject to statutory provisions about correcting errors (e.g. s.30 of the Land Registration Act 1992/3) or to possible deregistration on account of fraud. Neither of these exceptions was suggested here, other than a vague reference to an inaccurate resurvey in recent times where the new pegs were said not to coincide with the pegs set in German times. In general, Part IV of the Land Registration Act 1992/3 must apply to this land.

There is also the further point referred to by the Chief Justice, quoting from Nicholson C.J. in Western Samoa Trust Estates Corporation v Leniu Faisaovale [1970-1979] WSLR 139, 140:

I consider that to take advantage of the provisions of the Limitation Act 1975 the defendant must accept that he is to be treated as an individual occupier and not as a family member. He may press his own claim but nobody else's. After all, section 4 of the Limitation Act 1975 provides that the Act shall not apply to Samoan customary land. Manifestly it is inappropriate then that a claimant by adverse possession should attempt to press his claim of freehold land on the basis of Samoan customary communal holding of land by numbers of persons, of which he is one.

The Court considers that counsel should have been ready to argue this ground about customary land and not to have assumed that the Court would order a new trial because of the non-availability of the notes of evidence. However, the point could have had no prospect of success, given the necessity for preserving the integrity of the land register and the statutory provisions to which reference has been made.

With regard to the second ground of appeal, members of the Court spent some time in ascertaining from counsel for the appellant exactly what essential elements of the evidence the Chief Justice either failed to record at all or adequately or else recorded incorrectly. In the first category, counsel could refer only to the evidence of a surveyor called for the respondent who claimed that the pegs at a recent resurvey did not coincide with the German pegs. It is not known whether this witness, to whom the Chief Justice did not refer, indicated the extent or materiality of any discrepancy; counsel for the appellant had apparently not even investigated this point. On either leg of the appeal, the Court fails totally to see how this evidence could properly be relied upon now as assisting the appellant.

The Chief Justice carefully recorded in summary the evidence called for the appellant - particularly that of the elderly lady, Perise, who was clearly the most important witness for the appellant on the adverse possession claim. Counsel was unable to point to any significant omission or misstatement in the Chief Justice's summary of the testimony of the various witnesses.

In these unusual circumstances, we do not consider that there should be a new trial, despite the lack of the trial Judge's notes of evidence. For the reasons just stated, there can be no injustice caused because of this lack. Had the appellant been able to point to some significant omission or material misstatement in the Chief Justice's summary of the witness's evidence, then the Court might have felt obliged to order a new trial. But here, credibility in the pejorative sense was not an issue The Chief Justice went through the exercise of assuming the appellant's evidence to have been truthful; even then, he was unable to find the necessary inferences for adverse possession. He accepted evidence from the respondent's surveyor that he visited the property in 1983 and found no sign of adverse occupation - a different situation applied when the surveyor revisited in 1988. The Chief Justice was quite entitled to accept this evidence which does not appear to have been contradicted.

Counsel for the appellant's assumption that a new trial would be ordered contained no concern for the respondent's position. The respondent had a judgment in his favour, reached after the appellant had presented its case to the Court below on a certain basis. There could be some injustice to the respondent if he had to face a new trial at which the appellant endeavoured to 'patch up' any deficiency of approach or lack of evidence called at the first trial.

We say, in fairness to counsel for the appellant, that he did not appear as counsel at the trial. He said that the appellant and its former counsel had not parted company amicably. Be that as it may, the Court would have expected counsel, as officers of the Court, to have co-operated in endeavouring to reconstruct the record in the absence of the Judge's notes of evidence. No attempt was made by present counsel for the appellant to confer with either counsel for the respondent or with former counsel for the appellant.

On the evidence as chronicled in the Chief Justice's judgment, the Court cannot see that a claim based on adverse possession had any chance of success. The Chief Justice approached the legal tests in the manner discussed by this Court in Fiso v Reid ([1996] WSCA 3; C.A. 8/95; judgment 29 August 1996), a judgment to which he referred. There can be no question but that he was correct in this approach. Consequently, the appeal, even had the notes of evidence been available, could have had no prospect of success.

Normally the availability of the trial Judge's notes of evidence is necessary to enable the right of appeal to be exercised meaningfully. An approach such as that taken in Hunter's case (where the judgment was not properly recorded) would often be appropriate. However, in this exceptional case, the Court does not consider, for the reasons stated, that the grave step of ordering a new trial is justified.

The appeal is dismissed with costs of $500 to the respondent, plus any disbursements as fixed by the Registrar.

Solicitors:
T.M.S. Toailoa, Apia, for Appellant
Kruse, Enari and Barlow, Apia, for Respondent