IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

PETER AH HIM
of Leifiifi, Businessman
Plaintiff

AND:

PUA GALUVAO & TANIELU GALUVAO,
both of Lelata, Housewife & Samoan Judge respectively
Defendants

Counsel: Mr P. Fepuleai for the Plaintiff
Mr T.K. Enari for the Defendants

Date of hearing: 9 July 1999
Date of judgment: 29 June 2000

REASONS FOR JUDGMENT OF WILSON J.

The plaintiff, a businessman, is the registered owner of a piece of land at Lelata near Apia described as Parcel 892 (hereinafter called "the subject land") which is land-locked save and except for a right of way over the adjoining piece of land owned by the defendants, viz. Parcel 893.  Without the availability of the right of way or the consent of the owners of other adjoining pieces of land, the plaintiff or his successors in title would have no access to the subject land.

By his statement of claim the plaintiff alleged inter alia that the defendants erected a stone wall over the right of way which prevents the plaintiff having access to the subject land, and the plaintiff seeks orders inter alia that the defendants remove a caveat registered on the title (not ultimately objected to) and remove the stone wall and, by implication, anything else which obstructs in anyway the plaintiff’s right of way.  A claim for general damages was not vigorously pursued and, in any event, there was no proof of such damages.

By their amended statement of defence the defendants admitted each of the plaintiff’s allegations of fact save and except that they denied having "no caveatable interest" over the subject land and they denied that the plaintiff had been "denied his enjoyment and any proprietary rights" over the subject land.

By way of "further defence" (and not, it is to be noted, by way of counter-claim) the defendants pleaded in their statement of defence that "prior to the death (of one Moa Schaafhausen, the former registered owner of the subject land) the said Moa Schaafhausen promised that, in consideration of the considerable (amount of) fill that the defendants had put in to obtain access (to their land), the defendants could own that part (that) they had filled in," and the said Moa Schaafhausen "also stated that access to the (subject land could) be gained from land to the west (of the subject land) which land now also belongs to the plaintiff." The defendants further pleaded that "the plaintiff has access through his lands to the west of and adjoining (the subject land)."

The defendants, notwithstanding the absence of any pleading by way of counter-claim, purported as part and parcel of their defence to "pray (inter alia) for an order extinguishing the easements (and, by implication, the plaintiff’s right of way over the defendants’ land)."

That purported claim, by way of defence, is misconceived.  Any claim for relief under section 127 of the Property Law Act 1952 or otherwise would have needed to have been made by way of counter-claim [see Rule 96 of the Supreme Court (Civil Procedure) Rules 1980], assuming arguendo that such a claim could be pursued against the plaintiff as the purchaser of the subject land. Furthermore, notwithstanding Mr Enari’s earnest submissions, the defendants have not established that there has been any "change in the user" of the subject land to which "the easement (the right of way) relates" or "to which the benefit of the restriction is annexed" or any "change in the character or the neighbourhood or other circumstances of the case" such as to warrant the deeming of the right of way "obsolete" or the extinguishment thereof upon the ground that its "continued existence …. would impede the reasonable user of the land subject to (the right of way) or restriction" and it would not "secure any practical benefit to the person entitled to (the right of way) or the benefit of the restriction."  The defendants have not established that the proposed extinguishment of the right of way will not "substantially injure the person entitled to the benefit of the restriction (i.e. the plaintiff)" [see Hinde, McMillan & S. Land Law (1978) paragraphs 11.025 to 11.030].

Even if the defendants could overcome the pleading defect referred to supra and could proceed with a claim under the Property Law Act against the plaintiff, I am by no means satisfied that they could succeed in satisfying the requirements of section 127 and in showing an entitlement to extinguishment of the right of way [see Re Henderson’s Conveyance (1940) 4 Ch D1, compare In re Lewis (1959) NZLR 1040].  I would feel constrained to hold that the defendants have failed, on the facts, to bring their case within the words of section 127 and that the defendants could not, therefore, be granted the relief they purport to seek.  Assuming arguendo that it is a valid application, it would need to be dismissed.

The evidence adduced on behalf of the plaintiff was given by Aua Faasalafa, a surveyor, and the plaintiff himself.  The former gave largely explanatory evidence and his evidence was not challenged.  I accept the latter’s evidence as both credible and reliable.  He was not shaken when under cross-examination.

The evidence adduced on behalf of the defendants was given by the first defendant, Pua Galuvao.  Whilst I saw no reason to disbelieve Pua Galuvao, much of her evidence was not directly related to the legal issues arising on the pleadings or between the parties.

The documentary evidence consisted of a Plan No. 5629 (exhibit P1), an enlarged Plan (exhibit P2), a Deed of Conveyance relating to Parcel 892 (exhibit P3), a Plan showing parcel 950 (exhibit D1).

A view was held on 9 July 1999 for the purpose of me (as the trial judge) better understanding the evidence that had already been adduced and that was yet to be adduced.

I find, on the evidence and in accordance with the pleadings, that a stone wall and certain trees and shrubs obstruct the plaintiff’s right of way.  Unless that stone wall and other obstructions are removed, the plaintiff does not have free access to the subject land with which the grant of the right of way was intended should provide him.  It is simply not to the point that the plaintiff may, for the time being, have de facto access to the subject land from Parcels 889, 890 and 950, which are presently owned by the plaintiff.  Without a clear right of way to the subject land the plaintiff would find, in the event of him disposing of Parcels 889, 890 and 950 and conveying same to a new owner or new owners, that the subject land was totally land-locked and value-less.

The stone wall runs roughly in the same direction as the right of way and it is approximately 70 to 80 cms (about 1 foot) in width.  The wall itself, though not unsightly and apparently well-built, takes up nearly 25% of the useable width of the 4 metre wide right of way (it is "less than 3 feet thick").

I find that the plaintiff purchased the subject land in 1996 from Hannah Leuluai.  It was registered in the plaintiff’s name in 1997.   At the time of the said purchase the plaintiff was unaware that the right of way was blocked; he became aware of that in late 1997; it has been blocked ever since.

For all these reasons the plaintiff succeeds on his principal claim.  There will be orders:

1.	that the defendants remove caveat No. 673*.
2.	that the stone wall and any other obstructions be removed from the right of way within 40 days from the date hereof.
3.	that, in the event of the defendants not removing the stone wall and any other obstructions from the right of way within the specified time, the plaintiff is at liberty to remove same for a fair commercial price, which price shall be recoverable from the defendants and payable to the plaintiffs within 30 days of the plaintiff notifying the defendants that the said removal is complete and what the cost thereof was.
4.	that the defendants pay to the plaintiff within 60 days from the date hereof their costs of and incidental to this action such costs to be agreed but, in default of agreement within 14 days for the date hereof, the parties to exchange and lodge written submissions as to costs within 21 days from the date hereof, and this Court will fix the costs to be payable.

There shall be liberty to any party to apply upon 48 hours notice to the other party or parties.

JUSTICE WILSON