IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

FAAPOPO IVAPENE TOFAEONO
of Sydney, Australia and Togāfuafua,
Samoa, Retired Nurse
Plaintiff

AND

FALANIKO FALANI TOFAEONO TAULIMA
of Vaivase and Lalovaea, Vailima, Married Man
First Defendant

AND

EDWARD WULF TOFAEONO TAULIMA
of Vaivase and Lalovaea, Married Man
Second Defendant

Counsels: Mr S. Leung Wai for Plaintiff
Mr T. S. Toailoa for Defendants

Hearing: 18/07/05, 19/07/05, 2/08/05, 24/08/05
Judgment: 23/01/2007

DECISION OF VAAI J

The plaintiff is the widow of the late Tofaeono Taulima who passed away in 1988. They were married in October 1972; Tofaeono was then 64 years old and the plaintiff 32 years and they have been living together since about 1970. Tofaeono Taulima became registered owner of a parcel of land at Vaivase by deed dated the 26th February 1972 and registered on the 16th May 1972. This parcel of land (the land) is the subject of these proceedings. It was utilised by the plaintiff and Tofaeono to secure their joint loans with the Development Bank of Samoa. Repayments of the loans were undertaken by the plaintiff as Tofaeono was then too old to work. In 1983 Tofaeono instructed his solicitor Tupai Apa to transfer the land to the plaintiff. A deed of conveyance was prepared and duly executed by Tofaeono in January 1983; it was also stamped but could not at the time be registered due to the existence of the Development Bank mortgage. When the loan was finally paid off by the plaintiff in 1996 and the Development Bank mortgage discharged, the deed of conveyance had disappeared, could not be found and remained unregistered. Upon Tofaeono’s death in May 1988 letters of administration of his estate were granted to the plaintiff who upon advice from Mr Apa conveyed the land from herself as the administrator and transferor to herself as the transferee by deed of conveyance dated the 9th April 1998; the deed of course recited the deed of conveyance executed by Tofaeono in January 1983 which was lost and never to be found. The plaintiff before moving to New Zealand in 1983 was living on the land with Tofaeono, their one child from their union, and the plaintiff’s children from a previous marriage. Tofaeono did not wish to migrate to New Zealand in 1983; he was 75 years old then, but he did visit the plaintiff in New Zealand regularly when his airfares were paid for by the plaintiff.

The defendants are the grandsons of Tofaeono. Their father Faagau Mani Wulf is the son of Tofaeono from a previous union. Faagau and his family of about 7 children including the two defendants moved onto the land after the plaintiff moved to New Zealand; this arrangement was consented to by the plaintiff; she was told by Tofaeono that Fa’agau and his family have moved in to live with him. After Tofaeono’s death in 1988 the plaintiff travelled to Samoa on at least 3 occasions and told Fa’agau to vacate the land but by 1996 it was obvious to the plaintiff that Fa’agau was reluctant to move prompting her to instruct her lawyer Mr Apa who did nothing more than wrote letters to Fa’agau. It was not until Mr Harry Schuster of Fepuleai Schuster, Solicitors was instructed that eviction proceedings were commenced in December 2000 against Fa’agau. The statement of claim seeking an eviction order served on Fa’agau reads:

1)	That the plaintiff is a retired nurse and resides in Sydney and Togafuafua Apia.

2)	That the plaintiff is duly registered as proprietor in free simple of all that parcel of land … situated at Vaivase … by virtue of Deed of Conveyance No 10376C duly registered on the 9th day April 1997.

3)	That the defendant is the stepson of the plaintiff and is living on the premises.

4)	That the plaintiff bought the land from the defendant’s father for the sum of $7,500.

5)	That after buying the land the plaintiff left to reside in New Zealand in 1983.

6)	That sometime in 1987 the plaintiff was contacted by her husband Tofaeono if she would consent to the defendant residing on the premises as the defendant had requested Tofaeono if he could live on the premises. 

7)	That the plaintiff consented to the plaintiff residing on the premises … the defendant could live on the premises until such time she wants to move onto the premises.

8)	That the defendant has been verbally advised several times he must vacate the premises and surrender possession … .

9)	That the defendant has failed to comply.

Fa’agau Tofaeono did not respond to the summons and statement of claim and Sapolu CJ after perusing the affidavit of formal proof by the plaintiff granted the following order on the 9th April 2001.

UPON READING the Affidavit for formal proof of the Plaintiff dated the 27th March 2001 and upon hearing counsel for the plaintiff the Court DOTH HEREBY ORDER that:

(a)	the defendant vacate the land of the plaintiff within 21 days from the date of this order;

(b)	the defendant pays $300 to the plaintiff as costs for this proceeding.

The said court order was duly served on Fa’agau at Vaivase on the 29th June 2001, but Fa’agau died soon after and the two defendants have continued to live on the land; their refusal to leave has resulted in these proceedings commenced against them in January 2003 for their eviction from the land.

In defence the defendants say firstly that the deed of conveyance executed by Tofaeono in January 1983 which transferred the land to the plaintiff is a fraud; secondly they claim that by virtue of section 9(2) of the Limitation Act 1975 the plaintiff is precluded from bringing this action and they also counterclaim to have acquired title to the land by way of adverse possession.

Fraud

In support of this allegation the defendants rely on the evidence of their grandmother (mother of their father Fa’agau). She told the court that prior to 1970 before Tofaeono commenced cohabitation with the plaintiff, Tofaeono purchased the land during the time she and Tofaeono were living together and she and her family cleared the land before Tofaeono built a house on it sometimes between 1967 and 1970; she even sighted the deed of conveyance before the house was built. At that time they were residing at Faatoia and Tofaeono had a building construction company from which he earned sufficient and substantial amounts of money to pay for the land. This evidence contradicts the testimony of the plaintiff who told the court that in 1970 when she commenced cohabitation with Tofaeono she paid for the land by instalments from her salary as a nurse as Tofaeono was then too old to work. The evidence of the grandmother cannot be accepted, her hostility towards the plaintiff was obvious; she could not have sighted the deed of conveyance of the land between 1967 and 1970 simply because the deed did not exist until February 1972 when it was executed; and moreover if Tofaeono had substantial amounts of monies to pay for the land it should not have taken him about 5 years (1967 to 1972) to pay the purchase price of $750.

In respect of the deed of conveyance executed by Tofaeono in 1983 the defendants allege that the purchase price of $7,500 was never paid by the plaintiff to Tofaeono. Counsel for the defendants submit that the plaintiff has failed to prove that she did in fact paid $7,500 to Tofaeono for the land and her failure to do so is fatal to her claim and should afford sufficient evidence of fraud on her part. It is my understanding of the submission that the plaintiff deceived and misled both Tofaeono and his solicitor to prepare and execute the conveyance of the land to the plaintiff when in fact the plaintiff has not paid $7,500 to Tofaeono.

It is for the defendants who are alleging fraud to bear the onus of proving fraud. Lord Hobhouse of Woodborough in Three Rivers District Council v. Bank of England (2001) 2 All ER 513 at 569 dealt with the question of fraud and said: 

"The law quite rightly requires that questions of dishonesty be approached more vigorously than other questions of fault. The burden of proof remains the civil burden - the balance of probabilities - but the assessment of the evidence has to take account of the seriousness of the allegation and, if that be the case, any likelihood that the person accused of dishonesty would have acted in that way".

There is simply no evidence that the plaintiff deceived Tofaeono into executing the deed of conveyance; similarly there is no suggestion that Tofaeono’s solicitor acted improperly in preparing the deed of conveyance and when he attended to Tofaeono upon the execution of the deed. The solicitor gave evidence, he was Tofaeono’s solicitor, he received instructions from Tofaeono, who was in good physical state, to transfer the land to the plaintiff. It is correct that the consideration of $7,500 was never explained; it is also correct that the solicitor was never asked of the $7,500 consideration, and it is also true that not one witness told the court that $7,500 was not paid. But what is absolutely certain is that there was a mortgage on the land to secure the personal loans of the plaintiff and Tofaeono and payments of the loans were made by the plaintiff well before 1983 when Tofaeono executed the deed of conveyance. Bearing in mind that Tofaeono was a Cabinet Minister and living away from the plaintiff since 1983 when the plaintiff moved overseas, if indeed Tofaeono was pressured or deceived into executing the deed he had all the time in the world to see his lawyer to rectify the fraud before his death in 1988. As stated earlier the defendants could not produce evidence of actual fraud but rely on assumptions, which the evidence cannot support. I therefore conclude that the defendants have not discharged the onus of proof and the allegation of fraud is dismissed.

Adverse Possession and Limitation Act 1975

To establish a claim of adverse possession, the defendants have the burden of proving on the balance of probabilities that they have been in possession for 12 years or more since the right of action accrued to the plaintiff to the extent that the plaintiff has been effectively dispossessed, or has effectively discontinued possession for a similar period.

Section 9(2) of the Limitation Act 1975 which provides the time period of 12 years in which a person may bring an action for recovery of land provides:

"No action shall be brought by any other person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him or to some person through whom he claims."

The effect of the limitation period is to allow an adverse possessor to acquire good title to the land in question against the whole world so that the right of a dispossessed owner to recover his or her land is limited by statute - the Limitation Act 1975. The policy underlying adverse possession is to deny a remedy to true owners who fail to exercise their rights within a reasonable period of time: Nelson McKenzie Ltd v. Sale Lamosi (unreported 7/7/95 SC of Samoa) at 12.

Section 14 of the Act defines adverse possession by providing in subsection (1) as follows:

"No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run (hereinafter in this section referred to as adverse possession), and, where under the foregoing provisions of this Act any such right of action is deemed to accrue on a certain date and no person is in adverse possession on that date, the right of action shall not be deemed to accrue unless and until adverse possession is taken of the land".

In order to constitute title by adverse possession, possession relied on must be for the full period and must be actual, open and manifest, exclusive and continuous: See McDonnell v Giblin (1904) 23 NZLR 660; 662 - 663 per Cooper J; Nelson McKenzie v Sale Lamosi (supra); Wallace Jennings v Ioane Onesemo and Alatama Onesemo ([2000] WSSC 26; unreported, Wilson J, SC of Samoa, 9/8/2000).

The person claim adverse possession must also have the intent to exclude everyone else including the rightful owner from possession of the land. He or she must intend not merely to trespass but to use the land as his or her own to exclude all others including the true owner. Slade LJ in Buckinghamshire County Council v Moran (1989) 2 All ER 225 at 238 put it this way:

"I agree with the Judge that "What is required for this purpose is not an intention to own or even an intention to acquire ownership but an intention to ‘possess’, that is to say an intention for the time being to possess the land to the exclusion of all other persons, including the owner with the paper title"

Finally section 10 (1) of the Act provides:

"Where the person bringing an action to recover land or some person through whom he claims has been in possession thereof, and has while entitled thereto been dispossessed or discontinued his possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance."

Whether a person has been discontinued possession or dispossessed of land is basically a question of fact depending on the circumstances of each case: See Wallis’s Cayton Bay Holiday Camp Ltd v Shell-Mex & BP (1974) 3 All ER 575 at 585 and Nelson McKenzie Ltd v Sale Lamosi (supra).

The defendants claim that the plaintiff discontinued possession of the land in 1983 when she migrated to NZ and the limitation period commenced to run from that period as they shifted onto the land then without the approval and consent of the plaintiff and secondly their possession was actual, open, manifest, exclusive and continuous. This submission cannot be sustained for several reasons. The defendants moved onto the land after 1983 when their parents went there presumably to take care of Tofaeono. But they did so with the approval and consent of the plaintiff. The defendants were obviously ignorant of their condition of stay and occupation of the land as the plaintiff dealt only with the defendant’s father and Tofaeono at the time. After Tofaeono’s death in 1988 the plaintiff on several occasions requested the defendant’s father to vacate and when it was obvious to the plaintiff that some action was required to remove the defendant’s father the plaintiff consulted her lawyer in 1996 and court proceedings were finally instituted in August 2000. In her statement of claim the plaintiff alleged inter alia that the plaintiff consented to the defendant’s father residing on the land and … the defendant’s father could live on the land until such time the plaintiff wants to move onto the land. The defendant’s father who dealt with the plaintiff and therefore knew about his conditions of occupation of the land did not defend the action resulting in the order of eviction dated the 19th April 2001. I therefore reject that the period of limitation started to run from 1983; I also reject that the occupation by the defendants’ of the land in 1983 was adverse; they and their father originally possessed the land after 1983 with the permission and consent of the plaintiff. The submission is rejected and the counterclaim adverse possession must also fail.

Without being discourteous to counsel for the plaintiff I consider it unnecessary to rule on the very sound and well prepared submissions by counsel on the question of issue estoppel as it will not make any difference to my judgment which I will give in favour of the plaintiff as a result of my rulings against the defences by the defendants. Suffice to say that the authorities on the subject of issue estoppel were fully canvassed by Sapolu CJ in Patosina Reed & Others v Vitolia Matailiga & Makerita Loia ([2005] WSSC 1; unreported, 19/1/05, SC of Samoa). In my respectful view the submission should have been introduced as a pre-trial motion.

I give judgment for the plaintiff. The defendants and their families and all persons occupying the land are ordered to vacate the plaintiff’s land within 30 days. The defendants are ordered to pay the plaintiff her costs in this action including her travel expenses to attend the hearing. I will hear counsel as to the quantum of the costs so ordered.

Vaai J