SUPREME COURT OF SAMOA
Public Trustee v Fidow, Noel and Sanft [2013] WSSC 5

Case name: Public Trustee v Fidow, Noel and Sanft
Citation: [2013] WSSC 5
Decision date: 15 February 2013
Parties: 
The Public Trustee, a statutory body established pursuant to the Public Trust Office Act 1975
Julia Fidow, Noel and Tea Sanft of Leufisa
Hearing date(s): 27 March 2012
File number(s): 
Jurisdiction: Civil
Place of delivery: Mulinuu
Judge(s): Justice Vaai
On appeal from:
Order:
(1)	Judgment for the plaintiff
(2)	The defendants, their families and all persons occupying the land are ordered to vacate the land within two (2) months.
(3)	Defendants are ordered to pay costs of $3,000.
Representation: 
Semi Leung Wai for plaintiff
Katopau Ainuu for defendants
Catchwords: 
Words and phrases:
Legislation cited:
Section 14 of the Limitation Act
Cases cited:
Rains v Buxton 
J A Pye (Oxford) Ltd v Graham 2002 UKHL 30
Powell v McFarlane 
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

THE PUBLIC TRUSTEE a statutory body established pursuant to the Public Trust Office Act 1975
Plaintiff

AND:

JULIA FIDOW, NOEL, and TEA SANFT of Leufisa
Defendants

Counsel:
Semi Leung Wai for plaintiff
Katopau Ainuu for defendants

Decision: 15 February 2013

DECISION OF THE COURT
Introduction
1.	The Public Trustee as administrator of the estate of George Collins (the deceased), seeks order to evict the defendants, their families and agents from the estate land at Leufisa near Apia described as:
“All that piece or parcels of land containing an area of one road eleven points five perches (oa.1r.11.5p) more or less situated at Leufisa in the District of Tuamasaga described as Parcel 718 being part of Parcel 15 Flur VIII Upolu and part of the land registered in Volume 1 Folio 161 of the Land Register of Samoa as the same is more particularly delineated on Plan 4655 deposited in the Office of the Director of Lands Apia.
2.	The land is part of the land registered under the deceased and his five siblings, at the time of his death, as tenants in common in equal shares.  As a result of a subdivision into six lots in 1983 the deceased and his five siblings were each allocated parcels of land as follows:
Parcel 718	The Deceased	
Parcel 719	Robert Collins	
Parcel 720	Gus Collins	
Parcel 721	Mary Collins	
Parcel 722	Grace Collins	
Parcel 723	Louise Collins	

3.	The defendant Julia Fidow (Fidow) is the granddaughter of Mary Collins who was allocated parcel 721.  Her father constructed a house on parcel 721.  Defendants Tea and Noel Sanft are the daughter and son in law of Julia Fidow respectively.
4.	The defendants are seeking in their Amended Statement of Defence and Counterclaim an order to vest the land in them on the basis they have acquired possessory title to the land by way of adverse possession.  They claim to have been in possession since 1987.
The 1983 sub-division
5.	It is not disputed that the 1983 sub-division averted to in paragraph 2 above was to distribute the land amongst the six tenants in common.  It was distributed in accord with the occupancy at the time.
6.	Testimony by the defendant Fidow that the parcels to her knowledge were not specifically identified for each beneficiary is not only false, it is totally irrelevant for the purpose of this action.  By transmission dated 18th October 2007 and registered 10th December 2007 the plaintiff as administrator of the estate of the deceased was registered as proprietor of the land.
7.	Perhaps in 1983 Fidow did not know who was allocated parcel 718, but she certainly knew then that parcel 721 was allocated to her grandmother and her father had constructed a dwelling house on the said parcel.
Occupation of Parcel 718 prior to 1987 – The Plaintiff’s version 
8.	Robert Collins (Robert) the brother of the deceased who was allocated parcel 719, lived with his wife and children on parcel 719.  Robert died in 1987.  Two of his daughters, Sina and Elizabeth, testified for the plaintiff.
9.	Robert built and operated a shop on part of parcel 718 on or about 1968.  He also built a small Samoan hut behind the shop.  One of the deceased’s grandson son Filipo Alefosio (Filipo) who lived with Robert on parcel 719 also built a house behind Robert’s Samoan hut on parcel 718 where he, his mother Christina and his brother lived.  His mother Christina is the daughter of the deceased.
10.	Filipo left for New Zealand in 1979 to live.  He was followed by his mother in 1981 and his brother in 1983.
11.	Robert’s wife died in 1983 leaving Robert by himself as all their children have married and lived elsewhere.  Sina, the 72 year old daughter of Robert told the court she visited her father regularly since her mother’s death.  She was a school teacher at the time.  She moved in and lived with her father when he suffered a stroke in 1984.  Although she went to check on her children after school each day, she would always return to spend the night with her sick father.  She often checked on her father’s buildings on parcel 718.
12.	Sina’s brother Lucky returned in 1985 from overseas and lived with the father on parcel 719, Sina returned to her family but maintained regular visits to her father.  Lucky immediately sold parcel after he was given ownership; he then placed his father in the old peoples home and returned overseas.
13.	Robert died in 1987 at the Home for the Aged.  Sina told the court that the final preparations for her father’s burial were all done on parcel 718 which was vacant except for her father’s and Filipo’s houses.
14.	Robert was then buried on parcel 722 (the parcel allocated to Grace) where the burial ground for the family was located.
15.	Elizabeth Betham (Elizabeth) the younger sister of Sina, and a Manageress of a resort, also told the court she visited her father regularly after her mother’s death in 1983.  Up to 1987 when her father died, no one was living on parcel 718 where the activities for her father’s burial were all done.  Defendant Fidow was then living on parcel 721.
16.	Both Elizabeth and Sina confirmed that Christina the daughter of the deceased lived on parcel 718 until she migrated to NZ.
The Defendant’s version – occupation of 718 prior to 1987
17.	Defendant Fidow testified that it was January 1984 they planted trees and constructed a Samoan style house with iron tin roof on instructions of their father on parcel 718.  In November of the same year, Robert’s son returned from Australia and constructed a house on 718 with her father’s permission.  The house was built next to the defendant’s house.  When Lucky returned to Australia, the defendant’s family took care of Robert on parcel 718 until he was transferred to the old people’s home for the aged.
18.	Lucky returned for his father’s funeral and requested defendant’s Fidow’s father to bury his father on parcel 718, but he was told to bury his father on parcel 721.  Before Lucky returned overseas after the funeral he gifted his house to Fidow’s father as a token of appreciation for caring for his father and for agreeing to bury his father on parcel 721.
19.	From 1987 the defendants family were in sole occupation of parcel 718.
Resolving the pre 1987 occupancy issue
20.	It is common ground that Robert built a shop and a Samoan house on parcel 718 near the road.  The court accepts that Christina and her sons built a house next to Robert’s Samoan fale on parcel 718.  Fidow’s testimony that Christina and her family lived on parcel 719 lacks sense and logic as Robert and his family were already on parcel 719.
21.	Both Sina and Elizabeth grew up on parcel 719.  Their recall and account of events between 1983 and 1987 would be more accurate than Fidow for very obvious reasons.  Firstly their mother died in 1983 leaving their father by himself on parcel 719; then in 1984 their father suffered a stroke; in 1985 their brother returned, lived with the father on parcel 719, convinced the father to transfer parcel 719, sold parcel 719 and returned overseas after placing the father in the old people’s home.  In 1987 their father died.
22.	As Sina, a school teacher, was living with her father on parcel 719 and constantly checking on the father’s houses on parcel 718 she ought to have seen anyone moving on to parcel 718 in 1984 and 1985.  So should Elizabeth who regularly visited her sick father.   Both of them told the court that the only buildings on parcel 718 were their father’s and the home of Christina.  Neither of them has a vested interest in these proceedings.  Their evidence is accepted.
23.	Having accepted the testimonies of both Sina and Elizabeth, the court rejects the evidence of Fidow that Lucky built a house of parcel 718 for his father, and upon his return overseas Fidow and her family looked after the father on parcel 718.  There was no need for Lucky to seek permission from Fidow’s father to build on parcel 718 as it was common knowledge that parcel 718 was assigned to George.  More importantly Lucky did not build on 718, there was no need to build a house for his father whom he placed into the old people’s home after he secured the title and sold parcel 719 in 1985.
24.	In summary, the defendant Fidow and her family did not occupy parcel 718 in 1987.  Lucky did not have a house on parcel 718 to gift to the defendants; neither was there any reason for Lucky to gift anything to the defendants as the defendants did not take care of Robert after Lucky returned overseas.  It is also accepted that Robert was buried at the family’s burial ground on parcel 722, not parcel 721 as alleged by the defendant.
Post 1987 occupation
25.	Since Robert’s death in 1987, both Sina and Elizabeth severed their interests and ties with the Leufisa land as their entitlements to parcel 719 was lost in 1985 when their brother Lucky sold 719.  But Elizabeth did notice one day as she drove past that the shop built by her father had a business operating in it.  Naturally she was interested; she inquired and talked to the proprietor of the Company called Selprize which leased the shop.  From what she saw and from her inquiry and observations the shop was leased for 10 years from 1993 to 2003.
26.	Fidow agreed the shop was leased but the lease ended in March in 1999 and since then the defendants have been in exclusive possession of the land.  She agreed to the lease the shop at the telephone request of Lucky from Australia to allow his friend the proprietor of Selprize to rent the shop.  But the friend’s struggling business had difficulty meeting rental commitment and vacated the shop in 1999.
27.	Elizabeth also told the court that Fidow approached her at the office of Stevensons Lawyer where Elizabeth was working as a legal executive at the time and sought permission from Elizabeth to use the shop.  Fidow was directed by Elizabeth to ask either Lucky or Sina.
The Law
28.	Pursuant to section 9 (2) Limitation Act 1975, the limitation period for an individual to bring an action for recovery of land is 12 years from the date on which the right of action accrued to him or to some person through who he claims.  In terms of section 10 (1), that date is the date on which the person seeking recovery of the land was dispossessed of the land or discontinued his possession of the land.
29.	Distinction between dispossession and discontinuance of possession in English law was stated by Fry J in Rains v Buxton 1880 14 ChD 537 at 539 – 540:
“In my view, the difference between dispossession and the discontinuance of possession might be expressed in this way – the one is where a person comes in and drives out the others from possession, the other case is where the person in possession goes out and is followed into possession by other persons.
30.	Section 14 (1) of the Limitation Act provides:
“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.”
31.	There are two elements necessary for legal possession:
(i.)	a sufficient degree of physical custody and control (factual possession)
(ii.)	an intention to exercise such custody and control on one’s own behalf and for one’s own benefit (intention to possess).
See J A Pye (Oxford) Ltd v Graham 2002 UKHL 30, Lord Browne –Wilkinsone at para 40 
32.	What constitutes factual possession was discussed by Slade J in Powell v McFarlane (1977) 38 P & CR 452 at 470 – 471:
 “Factual possession signified an appropriate degree of physical control.  It must be a single and (exclusive) possession, though there can be a single possession exercised by or on behalf of several persons jointly.  Thus an owner of land and a person intruding on that land without his consent cannot be in possession of the land at the same time.  The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner, in which land of that nature is commonly used for enjoyed … but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no one else has done so.”
33.	The requisite intention to constitute adverse possession is an intention to possess and not an intention to own or an intention to acquire ownership.
The requirement for what constitutes intention to possess by a person in factual possession was formulated by Slade J in Powell v McFarlane (supra) at p472:
 “In such a situation, the Courts will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world.”
If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the Court will treat him as not having the requisite animus possidendi and consequently as not having dispossessed the owner.”
Discussion
34.	Since a determination has been made that the defendants were not in factual possession of the land in 1987 this part of the ruling will focus on the period after 1987.
35.	When Robert died in 1987 he still had on parcel 718 the shop and his Samoan hut.  Also on the land was the house built by Christina and her children.  After Robert’s death, the defendants apparently moved onto the land which means that whatever year is accepted as the time they moved onto the land the defendants did not have exclusive factual possession due to the presence of Robert’s shop and Christina’s house.  There is no evidence that those buildings were dismantled or removed, and if so, at what time were they removed.
36.	There is strong implication from the testimony of Fidow that the shop was either renovated or extended by Lucky when Lucky was in Samoa and before his return to overseas and it was the same building which Lucky gifted to her family after Robert’s death.  If in fact that is true as to what happened, that would not assist the defendant’s either for two reasons.  Robert owned the shop and there is no evidence he gifted the shop during his lifetime to Lucky and secondly Robert died in testate so that the shop would constitute part of Robert’s estate.
37.	 In any event it is accepted by both parties that the shop was leased to Selprize.  What is in dispute is the year the lease ended.  If the defendant’s version, that the lease ended in March 1999, then they contended exclusive possession by them commenced in 1999.  But mere factual exclusive possession is not sufficient to constitute adverse possession.  There must be the requisite animus possidendi.  The defendants must not only have the required intention to possess, but they must also make such intention clear to the world.
38.	There is surmountable difficulty faced by the defendants.  Elizabeth’s unchallenged testimony is that she was approached by Fidow to obtain permission to use the shop.  This request by Fidow could only have been made after Selprize had vacated the shop.  Seeking permission from Elizabeth tantamounted to an unequivocal display of the absence of or lack of any intent by the defendants to possess and to exclude the rightful owner.  The court is therefore entitled to treat the defendants as not having the requisite animus possidendi and consequently as not having dispossessed the owner.
39.	The court also accepts the testimony of Elizabeth that Selprize vacated the shop in 2003, not 1999 as alleged by the defendants.  
Result
(1)	Judgment for the plaintiff
(2)	The defendants, their families and all persons occupying the land are ordered to vacate the land within two (2) months.
(3)	Defendants are ordered to pay costs of $3,000.

_________________
JUSTICE VAAI