SUPREME COURT OF SAMOA
Tuiletufuga v Public Trustee [2013] WSSC 31

Case name: Tuiletufuga v Public Trustee
Citation: [2013] WSSC 31
Decision date: 05 April 2013
Parties: FIAPAPALAGI PAESE TUILETUFUGA, widow of Alamagoto (Applicant) and PUBLIC TRUSTEE as Administrator of the Estate of JESSE SCHWENKE, deceased.(Respondent) 
Hearing date(s): 
File number(s): CP 180/11
Jurisdiction: Civil
Place of delivery: Mulinuu
Judge(s): Justice Nelson
On appeal from:
Order:
Representation: 
Mrs K Drake-Kruse for applicant
Mr A Roma for respondent
Catchwords: 
Words and phrases:
Legislation cited:
Limitation Amendment Act 2012
Cases cited:
E A Coxon and Company Limited v Public Trustee [2010] WSSC 5
Public Trustee v Silao [2010] WSSC 26
Rimoni v Syddall [2012] WSSC 84
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

CP 180/11

BETWEEN

FIAPAPALAGI PAESE TUILETUFUGA, widow of Alamagoto.
Applicant

AND

PUBLIC TRUSTEE as Administrator of the Estate of JESSE SCHWENKE, deceased.
Respondent

Counsel:   Mrs K Drake-Kruse for applicant
Mr A Roma for respondent

Ruling:   05 April 2013

ORAL RULING OF THE COURT

1.	This is a claim for acquisition of title by adverse possession over a 19.1 perches portion of a half acre piece of freehold land situated at Alamagoto in Apia.  The property is described as Lot 145 on Plan 7483 as registered in Volume 2 Folio 199 of the Land Registry at Apia.  The plaintiff has been residing on the land nearly all of her life and was born there.  
2.	Her parents Tuiletufuga Lafo and Anima Toa Lama also resided thereon and the family at various times operated a shop and bakery and other enterprises from the land.  Tuiletufuga Lafo and his wife were brought onto the land by Tuiletufugas mother Emma Schwenke.  Emma Schwenke and her husband Tuiletufuga Papalii occupied the neighbouring half acre parcel Lot 144.  Lot 144 is registered to Emmas father John Schwenke.  
3.	All parties mistakenly believed that Lot 145 was also land belonging and registered to John Schwenke.  In fact Lot 145 is registered to another relative one Jesse Schwenke.  The generation of Tuiletufuga Lafo and his wife and Tuiletufuga Papalii and his wife Emma Schwenke as well as of John and Jesse Schwenke have all passed away.  The defendant now administers the estate of Jesse Schwenke and has questioned the basis upon which the plaintiff and her family occupy their part of Lot 145 (hereinafter “the land”).  It is not in dispute that the plaintiff and her family have been in actual, open, manifest and exclusive possession of the land since around the end of the second World War.  
4.	The question is whether the plaintiff as current occupier of the land can acquire title to it by virtue of their adverse possession of the land for over 50 years.  Prior to 26 January 2012 the answer to that would have been two fold: firstly, yes because they could have successfully raised the shield of adverse possession as a defence to any attempt by the defendant or anyone else to evict them from the land.  It being irrelevant that they mistakenly thought the land they were occupying was land belonging to their grandmother Emma Schwenke.  This is the cumulative effect of decisions such as E A Coxon and Company Limited v Public Trustee [2010] WSSC 5 and Public Trustee v Silao [2010] WSSC 26.  And secondly, they probably could have also acquired title to the land by use of adverse possession as a sword.  This was in fact done in both E A Coxon and Silao.
5.	However on 26 January 2012 everything changed.  The Government of this nation brought into law the Limitation Amendment Act 2012.  That piece of legislation bars the acquisition of title to land by way of adverse possession, the registration of title acquired by adverse possession and the extinguishing of any title to land by adverse possession.  It also prevents the raising of adverse possession as a shield or defence to any action by a registered owner to recover land, to evict any one from land or to redefine boundaries of land.  That legislation came into force on 26 January 2012.  From that date onwards the plaintiffs action to acquire title to the land by adverse possession became statute barred forevermore.  
6.	The sole remaining question then which has been the subject of argument and submissions from the lawyers is whether the plaintiffs action because it was filed in court before the amendment legislation came into force is saved by section 3(1) of the Amendment Act.  That section states that the Limitation Amendment Act does not apply to actions to recover land, evict persons from land and redefine boundaries of land where the action was filed in the Supreme Court and was “served upon the other party or parties and defended or resisted by the defendant party on the grounds of adverse possession before or on the day this Act commenced.”
7.	The provision is not particularly well phrased but it can be broken down into its component parts as follows: 
(i)	The action must be one to recover land, to evict a person from land or redefine the boundaries of land;
(ii)	The action must be filed in the Supreme Court;
(iii)	The action must be brought before or at the latest on the day the amendment Act commenced and most significantly for present purposes,
(iv)	On or before that day the action must have been served “upon the other party or parties” i.e. upon the party or parties to whom it is directed and “defended or resisted by the defendant on the grounds of adverse possession” i.e. the said defendant party must be defending the claim based on adverse possession.  
8.	If the particular action fulfills these criteria the action is saved and the amendment legislation has no application.  Section 3(1) is as was noted by Sapolu, CJ in Rimoni v Syddall [2012] WSSC 84 -
“a savings provision; it preserves actions for recovery of land, eviction from land and redefinition of land boundaries that had been filed and defended or resisted by a defendant on the ground of adverse possession before or on the day the Act came into operation.  Section 5 bars any further acquisition of right title or interest in or to land as from the commencement of the Act but section 3 preserves certain specified actions which had been filed served and defended or resisted by a defendant before or on the day the Act came into operation.”
9.	Applying the section 3(1) criteria to the present proceedings, firstly as to the first criteria the plaintiffs action is clearly not one to recover land, they are already in possession and occupy the land in question.  Neither is it an eviction action.  No one else resides on or occupies the land based on the evidence adduced before the court and it is clearly not an action to redefine the boundaries of the land or of Lot 145.  The plaintiffs action meets none of the first lot of criteria.  
10.	As to the second and third it was clearly filed in the Supreme Court prior to the commencement date of the amending legislation.  The record shows the plaintiffs statement of claim was filed in the Supreme Court registry on 09 November 2011.  There is no difficulty in the plaintiffs action meeting criteria two and three.  
11.	In respect of the last criteria however the plaintiffs action only meets the first of the two matters stated therein.  It was “served upon the other party or parties” as required by section 3(1).  But the section goes on to impose the further requirement by its use of the word “and” namely that it must be “defended or resisted” by the defendant on the basis of adverse possession.  Here it is the plaintiff who seeks to invoke the doctrine of adverse possession not the defendant.  The plaintiff cannot be said to be defending or resisting the claim on the basis of adverse possession.  The subsection obviously contemplates that the type of action to be saved is an action whereby adverse possession is being used as a shield and not as a sword.  The plaintiffs action does not meet the fourth and final criteria.  
12.	I accept that when I first saw the legislation at the last calling of these proceedings Ms Drake is correct I did indicate by way of a preliminary assessment that it seemed to me the amendment legislation had no application to the plaintiffs claim.  I came to that conclusion based on a review of section 3(1) and how the plaintiffs claim did not meet the requirements therein.  But what I overlooked was the effect of the non-compliance with section 3(1).  The effect is that the amendment does not save the plaintiffs action and that the remaining provisions of the amending legislation mean the plaintiffs action is indeed statue barred as are all claims seeking to rely on adverse possession other than those falling within the safety net of section 3(1).
13.	I am sympathetic to the plaintiff and her family.  They have lived on and occupied the land for many decades without interference.  In the belief that it belonged to their grandmother Emma Schwenke.  Had they brought their claim in earlier times as noted above they would undoubtedly have succeeded.  But they are now victims of the new legislation.  Their action cannot be saved and it has no prospect of success.  The course of action that must be taken is for the claim to be struck out and I so order.
14.	As the successful litigant the defendant is entitled to costs. Considering all the circumstances however I would strongly recommend to the defendant that each party bear its own costs.  But if the defendant holds a contrary view I am prepared to listen to submissions on the point.  

………………………….
JUSTICE NELSON