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Public Trustee v Pepa [2009] WSSC 87 (31 August 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE PUBLIC TRUSTEE
a statutory body established pursuant to the Public Trust Office Act 1975 as the
duly appointed Administrator of the estate of TEO VAELUA SENIOR, deceased.
Plaintiff

AND:

FESOLOAI MALAMA PEPA
sued on behalf of all her family members presently occupying part of the estate
land being Parcel 233/44 at Faatoia, near Apia.
Defendant

Counsel: F Vaai – Hoglund for plaintiff
S Toailoa for defendant

Judgment: 31 August 2009

JUDGMENT OF THE COURT

1. These proceedings are concerned with the defendant’s notice of motion to strike out the plaintiffs statement of claim.

The Statement of Claim

2. Te’o Vaelua ("the deceased") died intestate on the 17th May 1956. His estate comprised of two lots of land (parcels 233 and 284) at Fa’atoia, near Apia. By order dated 20th June 1986 the plaintiff was appointed administrator of the estate of the deceased. It was not until July 2002 that parcels 233 and 284 were registered under the plaintiff as administrator of the estate by virtue of a transmission registered on the 31st July 2002.

3. Before his death the deceased permitted and allowed one Malama Pepa Te’o ("Malama"), a nephew of the deceased and father of the defendant to live on parcel 233. When Malama died in February 1992 his widow and children including the defendant continued to occupy parcel 233.

4. But before Malama’s death, Malama was notified by the solicitor for the heirs of the deceased by letter dated 29th May 1963 that he was not a beneficiary of the estate of the deceased. He was also reminded that the deceased did once during his lifetime evicted Malama from parcel 233 for causing problems within the family. But one of the sons of the deceased allowed Malama to continue living on parcel 233 on condition that he was not to stir trouble within the family.

5. Malama died in 1992. By letter dated 26th February 2001 the plaintiff advised the defendant’s mother (widow of Malama) that they were not beneficiaries of the deceased’s estate and they should vacate parcel 233. In response the brother of the defendant orally told the plaintiff on the 6th March 2001 that Malama was a beneficiary of the estate. When the defendant did not provide documentary proof requested by the plaintiff to substantiate their claim as beneficiaries, the plaintiff by letter of the 7th May 2001 demanded the defendant to provide documentary proof within 14 days failing which the plaintiff will seek eviction order.

6. It was not until March 2007 that the defendant through her solicitor advised the plaintiff that Malama was adopted customarily by the deceased and it is through that adoption that the defendant and her siblings through their father were entitled as beneficiaries to the estate. By letter dated 2nd April 2007 the plaintiff advised the defendant that she was not a beneficiary and gave the defendant 21 days to vacate parcel 233.

7. By Statement of Claim dated the 17th October 2007 the plaintiff sought orders to recover estate land and to evict the defendant and members of her family from parcel 233.

Motion to Strike out the Statement of Claim

8. In response to the plaintiffs Statement of Claim the defendant, by Notice of Motion dated the 7th December 2007, moved to strike out the Statement of Claim on the grounds that the claim by the plaintiff is statute barred. The defendant relies on sections 9 (2) and 10 (2) of The Limitation Act 1975 which provide:

9 (2): 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.

PROVIDED THAT: if the right of action first accrued to the Government, the action may be brought at any time before the expiration of the period during which the action could have been brought by the Government, or of 12 years from the date on which the right of action accrued to some person other than the Government, whichever period first expires.

10 (2): Where any person brings an action to recover any land of a deceased person, whether under a will or on intestacy, and the deceased person was on the date of his death in possession of the land, or, in the case of a rent-charge created by will or taking effect upon his death, in possession of the land charged, and was the last person entitled to the land to be in possession thereof, the right of action shall be deemed to have accrued on the date of his death.

9. It is contended by the defendant that the plaintiff is prohibited by statute to bring its action against the defendant as the plaintiff did not pursue its claim within 12 years from the time the cause of action accrued. Obviously the vital issue for determination in these proceedings is when the cause of action accrued. Counsel for the plaintiff argued that the cause of action did not accrue until April 2007 when the plaintiff determined that the defendant was a not a beneficiary of the estate and demanded the defendant to vacate parcel 233 within 21 days. For the defendant it was argued that the cause of action either accrued in 1956 when the deceased died, or in 1963 when the solicitor wrote to Malama, or in 1992 when Malama died.

10. It is common ground as counsels agreed that it is for the defendant to establish conclusively that a cause of action based on the facts alleged by the plaintiff in his pleadings is time barred. If there is any doubt then the cause of action should be allowed to go to trial where all the issues of facts and law can be fully explored. This view was expressed by Tipping J in the New Zealand Court of Appeal decision in Johns v Johns [2004] NZCA 42 at paragraph 2:

"As the case is one involving strike out, the facts upon which the Court must act are those alleged in the plaintiffs pleadings, which must for present purposes be taken as capable of proof. Causes of action or aspects thereof should only be struck out before trial on the basis that they are statute or otherwise barred, if the defendant can establish that proposition conclusively. If there is any real doubt about the matter, the case should be allowed to go to trial where all issues of facts and law can be fully explored. This is no more than the ordinary strike out principle applied in the context of a strike out application which is based on limitation grounds.

11. The Limitation Act 1975 does not define when a cause of action accrues. It is a question of law to be determined from the facts pleaded in the Statement of Claim as recognized by Tipping J in the judgment of the Supreme Court of New Zealand in Trustees Executors v Murray [2007] NZSC 27 at paragraph 46:

"Of course the Limitation Act itself does not define when a cause of action accrues. It is not a matter of statutory construction. It is a question of when as a matter of law the cause of action accrues for the purpose of the Limitation Act."

When Did the Cause of Action Accrue?

12. The contention by the defendant that the cause of action accrued in May 1956 when the deceased died is premised on the pleadings in paragraph 13 of the Statement of Claim which states:

13. The said Malama Pepa Teo is not a child of the deceased either by blood, legal adoption or otherwise and was a relative of the deceased being his nephew, who was meant only to reside on parcel 233/44 on a temporary basis during the deceased’s lifetime.

When read on its own the pleading suggests that since the deceased’s death in 1956, Malama was, with the knowledge of the plaintiff unlawfully occupying parcel 233 so that the 12 year limitation period has commenced to run as the cause of action has then accrued. But Malama did continue to occupy the land with the permission of one of the sons of the deceased and with the knowledge of the plaintiff as pleaded in paragraph 17 of the Statement of Claim:

17. The said Malama Pepa Teo following the death of the deceased was allowed to resume occupying parcel 233 ..... on the condition that he was to refrain from causing further problems within their family.

It must necessarily follow that the cause of action could not have accrued upon the deceased’s death. It would also appear that section 10 (2) Limitation Act is not applicable here as it is uncertain from the pleadings whether the deceased was in possession of parcel 233 at the date of his death.

Section 10 (2) is relevant to an action to recover land of a deceased person under a will or intestacy where the deceased person was in possession of the land at the time of his death and was the last person entitled to the land to be in person thereof.

13. By letter dated 29th May 1963, a solicitor wrote to Malama that he was not a beneficiary of the deceased’s estate (paragraph 16 of the Statement of Claim). This letter alone cannot conclusively sustain an argument that the letter triggered the commencement of the limitation period. In the first place, the deceased’s estate according to the Statement of Claim has three sets of beneficiaries from

(a) his first marriage

(b) his second marriage, and

(c) from his de facto union.

It is uncertain from the pleading whether the solicitor acted for all beneficiaries. In the second place, Malama was never considered a beneficiary, but he was allowed by the deceased and subsequently by one of the deceased’s son to continue to occupy parcel 233. And thirdly the letter from the Solicitor did not request or demand Malama to vacate the land.

14. Malama died in 1992. There is nothing in the pleadings to establish conclusively or to even suggest that a cause of action accrued on his death. It was through Malama, during his lifetime, that Malama’s widow and children came to occupy the land. His continued occupation of the land as a licencee was on the condition that he would not cause trouble within the family. It could not be suggested by the pleadings that he displayed conduct inconsistent with the terms and conditions of his occupation of parcel 233 as a licensee. Similarly it cannot be asserted from the pleadings that immediately after his death, his widow and the defendant and members of her family acted in a way which could be viewed as an ouster to the plaintiffs title as administrators.

15. Indeed it was not until 2001 that the warning bells commenced to chime the defendant’s claim as beneficiaries when the defendant’s brother verbally informed the plaintiff that Malama was a beneficiary of the deceased’s estate. All the elements to support the plaintiffs claim could on the pleadings conclusively be viewed as existing in 2001, not in 2007 as contended by the plaintiff.

16. Although I have considered that the pleadings in the Statement of Claim cannot conclusively establish that the cause of action of the plaintiff is not time barred, the defendant may possibly have evidence to show that the action is time barred. It must be emphasized that this ruling does not preclude the defendant from pleading the defence of limitation in her statement of defence if she considers she has a good defence provable at the substantive hearing.

Conclusion

17. It follows from the above reasons that the plaintiffs claim is arguably within time and the Motion to strike out is dismissed.

18. Costs are reserved.

19. These proceedings are adjourned to the 14 September 2009 for re-mention.

JUSTICE VAAI