IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

IDA BARBARA VAAI of Siusega, Widow
Plaintiff

AND:

SITUFU FILIPAINA of Magia, Planter
Defendant

Counsel: R Drake for plaintiff
T Toailoa for defendant 

Judgment: 12 December 2011

JUDGMENT OF SAPOLU CJ

Introduction 

1.	The plaintiff is the registered owner of a parcel of freehold land at Magia on which she had her family homestead. She claims that the defendant had removed her homestead and built a Samoan guest house on her land. She is now seeking damages against the defendant and an order for possession of her land.

2.	The defendant, on the other hand, claims that the land is customary land which pertains to the matai title Ailolo of his family but had been fraudulently converted by someone into freehold land. Alternatively, the defendant claims that if the Court finds that the land is freehold, then he has acquired possessory title to the land on the basis of adverse possession as he has occupied the land for more than twelve years.

3.	The issues for determination are: (a) is the plaintiff the true owner of the land as freehold land or is the land customary land pertaining to the matai title Ailolo, (b) if the plaintiff is the true owner and the land is freehold land, has the defendant acquired title to the land on the basis of adverse possession, and (c) if the defendant has not acquired title to the land by adverse possession, what damages should be awarded to the plaintiff for the acts committed by the defendant in relation to the land.

Is the plaintiff the true owner of the land as freehold land or is the land customary land pertaining to the matai title Ailolo?

4.	It is clear from the documentary evidence produced by the plaintiff that the land in question is freehold land and it belongs to the plaintiff. The land was the subject of Court Grant No.968 issued by the then Supreme Court of Samoa on 12 May 1897 to one Frank Cornwall Junior of Magia pursuant to Article IV of the Final Act of the Conference of Berlin on Samoan Affairs 1899. This was during the time when Samoa was under the German administration.

5.	Subsequently, the land was conveyed to one Jane Brunt of Magia and was registered in the land register on 5 November 1921 as European land. This was after New Zealand had taken over the administration of Samoa from Germany in 1914. Land in Samoa was then classified under the Samoa Constitution Order 1920 enacted by the New Zealand Government into Crown land, European land, and Native land. Under this classification, "European land" was defined as land held from the Crown for an estate in fee simple. This classification was re-enacted in s.258 of the Samoa Act 1921 which was a statute of the New Zealand Parliament

6.	The entries in the land register show that the land was then conveyed from the estate of Jane Brunt to Isabella Stowers in 1941. This must be Isabella Stowers aka Pela Stowers the mother of Louis Stowers the plaintiff's first husband. In 1955, the land was conveyed from the estate of Isabella Stowers to her son Louis Stowers. After Louis Stowers died in 1973, the land was conveyed to his wife, the plaintiff, and was registered in her name as "freehold land". The land remains so registered up to now. The change in the status of the land from "European land" to "freehold land" was brought about by Article 123 (2) of the Constitution which provides, amongst other things, that on and after Independence Day, European land shall be held as freehold land.

7.	The defendant claims that the land belonged to the matai title Ailolo of his family and permission was given to the plaintiff's parents in law William and Pela Stowers to build a nightclub on the land. When William and Pela Stowers passed away, their sons "Vili" and "Lui" occupied the land until Vili and his wife moved out and lived elsewhere. "Lui", or Louis Stowers, was the husband of the plaintiff. The defendant further claims that someone must have fraudulently converted into freehold land the customary land of his family on which the plaintiff's parents in law were permitted to build a nightclub. 

8.	I find the evidence given by the defendant unconvincing and lacking in quality and therefore reject it. To an extent it is based on suspicion and it is also largely hearsay. An allegation of fraud must be distinctly alleged, sufficiently particularised, and distinctly proved: Three Rivers District Council v Bank of England [2001] A11 ER 513, per Lord Millet at p.578. The allegation of fraud by the defendant is a bare assertion without sufficient particulars and it has not been distinctly proved.

9.	The documentary evidence produced by the plaintiff is quality evidence. It is reliable and convincing and shows the history of this land from the Court Grant No. 968 dated 12 May 1897 to the registration of the land on 5 November 1921 in the land register as European land and then to the various transactions that followed until 1979 when the land was conveyed to the plaintiff as freehold land. I therefore conclude that the land is freehold land and it belongs to the plaintiff who is the registered owner.

Has the defendant acquired title to the land on the basis of adverse possession?

10.	In JA Pye (Oxford) Ltd v Graham [2002] 30, Lord Browne-Williams stated the two elements which constitute adverse possession by saying at para 40:

"[There] are two elements necessary for legal possession:

"1. a sufficient degree of physical custody and control ('factual possession')

"2. A intention to exercise such custody and control on one's own behalf for one's own benefit ('intention to possess')

11.	For the purpose of adverse possession, 'factual possession', must be "open and manifest, exclusive and continuous": McDowell v Gibbon (1904 23 NZLR 600 for Cooper J at pp662 – 663. It has also been said that 'factual possession' must be "open, not secret; peaceful, not by force; and adverse, not by consent of the true owner": Mulcahy v Curramore [1974] 2 NSWLR 464 per Bowen CJ at p.475. In terms of s.9 of the Limitations Act 1975, 'factual possession' must be continuous for a period of not less than 12 years.

12.	Essentially, the evidence for the defendant in support of his claim for adverse possession is that he and his family have resumed control over the land in question since 1993. In 2003 the plaintiff's homestead was still on the land and in 2008 the defendant built his Samoan guest house on the land. However, the claim by the plaintiff to recover possession of the land was only brought on 4 March 2009 more than 12 years since the defendant resumed control in 1993.

13.	I must say that I do not accept the defendant's evidence and prefer the evidence given by and for the plaintiff. According to the plaintiff in her evidence, she and her first husband Louis Stowers started to live together on the land in the 1960's and all their children were born on the land. When her said husband died in 1973, she and her children continued to live on the land in their four bedroom European styled house which was their homestead. In 2003, the house was renovated and was then valued by a valuer. At that time her son Alan and his wife were occupying the house until the beginning of 2008 when they migrated to New Zealand. On 29 December 2008 the plaintiff found out from some people that the defendant had removed her homestead from the land and was building a large Samoan guest house on it.

14.	The plaintiff's son Nigel Stowers who resides in Australia gave evidence that he visits Samoa regularly and would stay in his family's house on the land. In 2001 and 2003 when he came to Samoa he stayed in his family's house which was then occupied by his brother Alan and his wife. In February 2009, he came to Samoa and went with his mother, the plaintiff, to check out what was happening to the land. They found that their family homestead had disappeared and a large Samoan guest house had been built on the land.

15.	 Mr Elon Betham, the licensed valuer who valued the plaintiff's house in 2003 after it was renovated, confirmed that the house was still on the land in 2003. Mr Betham is an independent witness. The valuation report which he prepared on the plaintiff's house bears the date of "12th March 2003" which shows that the plaintiff's house was still on the land at that time.

16.	I accept the evidence given by and for the plaintiff that up to 2003 and 2008, the plaintiff still had her homestead on the land and it was occupied by her son Alan and his wife until the beginning of 2008 when they migrated to New Zealand. The plaintiff's evidence is supported by that of her son Nigel and the valuer Mr Betham. This is credible evidence unlike that of the defendant.

17.	That being so, I conclude that the defendant's claim in adverse possession cannot succeed. In the first place, I accept that the defendant who resides in Australia only occupied the land in 2008 when he built his guest house on it. From that time to 2009 when the plaintiff brought her action for recovery of her land is about one year. This is well short of the 12 year period for continuous occupation required for 'factual possession' that will constitute adverse possession. Secondly, the evidence for the plaintiff shows that the plaintiff's son Alan had been occupying the land up to 2008 when he migrated with his wife to New Zealand. Even if the defendant's unbelievable evidence that he and his family resumed control of the land in 1993 is taken into account for the sake of argument, such action by the defendant and his family cannot amount to adverse possession. Possession by a trespasser or squatter for the purpose of adverse possession must be "exclusive". The plaintiff's son Alan and his wife were still occupying the land up to 2008. The defendant therefore did not have "exclusive" possession required for the purpose of adverse possession.

18.	The defendant's claim for possessory title to the land on the basis of adverse possession cannot succeed. 

What damages should be awarded to the plaintiff for the acts of trespass alleged to have been committed by the defendant in relation to the land?

19	The plaintiff has brought her action against the defendant in the tort of trespass to land. Special damages are claimed for the loss of the plaintiff's homestead, footpaths, fence, and coconut trees which were on the land. Consequential loss is claimed on behalf of the plaintiff for taxi fares which the plaintiff claims were the direct consequence of the defendant's acts of trespass to her land. General damages are also claimed for mental and emotional distress.

20.	In Mc Gregor on Damages (2003) 17th ed 3-011, the learned authors stated in relation to general damages awarded in actions in trespass to property and nuisance:

"Increasingly in trespass to property or nuisance there has been an award for mental distress or anxiety"

21. But general damages for trespass to property tend to be on the low side. In Attorney General v Taunoa [2005] NZ CA 312 para [169], O'Regan J, in delivering the judgment of the majority of the New Zealand Court of Appeal, stated:

"(a) General damage: The authors of Todd (ed) The Law of Torts (4th ed, 2005)
" describe awards of general damages as an adjunct to special damages in cases 
" of damage to property as tending 'to be on the low side' ( at 26.3.02(2)).
" A similar point was made by Williams J in X v Attorney General [1997]
" 2 NZLR 623 at 639 where, having undertaken a survey of general damages
" awards in New Zealand cases he concluded that New Zealand Courts 
" 'have adopted a cautious and conservative approach to the assessment of 
" general damages'"

22	I turn now to the various heads of damages claimed by the plaintiff and consider each one in turn.

(a) Claim for the homestead

23 According to the plaintiff, repairs were done to her homestead before 1973. When her husband died that year the land was transferred to her. In 2003, Mr Betham a licensed valuer did a valuation of her homestead. It was estimated at about $46,000. Her son Alan and his wife were then occupying her homestead. At the beginning of 2008, Alan and his wife migrated to New Zealand. One Patau and his family who were neighbours then looked after the land for her. On 29 December 2008 as she was at the Faleolo International Airport waiting for her flight to New Zealand, she learnt that someone was building on her land. Upon her return from New Zealand she made enquiries which revealed that the defendant was responsible for removing her homestead and constructing a large Samoan guest house on her land. I must say that this is hearsay evidence and it is inadmissible. The people that the plaintiff said she had made enquiries with were not called to give evidence. Likewise, Patau and his family who had been looking after the plaintiff's land were not called as witnesses.

24. The defendant in his evidence said that he lives in Australia but visits Samoa every two years. When he came to Samoa in 2008 there was no house of the plaintiff on the land but only concrete posts, a concrete foundation, and walls (tulimanu) were there. He then started building his guest house on the land. That was in November or December close to Christmas. By the time he had to return to Australia, construction of his house was still continuing.

25. The concrete posts, concrete foundation, and walls mentioned by the defendant are no longer on the land. The defendant must have removed them to build his house. The question is whether it was the defendant who removed the whole of the plaintiff's homestead. The evidence given by the plaintiff was that she made enquiries and she was told that it was the defendant. This is hearsay evidence because none of the people that plaintiff said she enquired with was called as a witness. The defendant in his evidence said that there was no house on the land when he started building his own house. There were only concrete posts, a concrete foundation, and walls. Given this state of the evidence, I am not satisfied to the required standard of proof in civil cases that it was the defendant who removed the plaintiff's homestand except for the said concrete posts, concrete foundation, and walls.

26. The next difficulty is that there was no evidence as to the value of the concrete posts, concrete foundation, and walls. One thing that is clear from the evidence is that by 2008 the plaintiff's homestead was quite old. It was repaired sometime before 1973 but there was no evidence as to exactly when it was built or when the repairs were done. I would presume that the plaintiff's homestead was built well before 1973. There was also no evidence as to the number of concrete posts or walls that remained on the land which the defendant said were there before he built his house. This information could have come out during the cross-examination of the defendant but the defendant was not cross-examined on this point. In these difficult circumstances, and doing the best I can, I have decided to award $12,000 damages to the plaintiff for the concrete posts, concrete foundation, and walls which were removed by the defendant. 

(b)Claim for footpaths

27. There are also evidential difficulties with the defendant's claim for damages for the footpaths. There was no evidence as to the age or value of the footpaths in 2008. There was also no evidence as to the number of footpaths that were on the land by 2008. According to the defendant's evidence during cross-examination, when he built his house the footpaths were not in a good condition. They were all cracked (taetaei).

28. The onus of proof is on the plaintiff. If the plaintiff cannot prove her claim for damages then the blame should not be on the defendant. But one thing is clear, there were footpaths on the land though they were cracked and not in a condition. They were removed by the defendant. I award $500 under this claim for damages.

(c) Claim for fence

29. There is no evidence that it was defendant who removed the fence which surrounded the plaintiff's land. The defendant said under cross-examination that he did not see any fence on the land when he built his house. So it was not him who removed the fence that surrounded the land.

30. As earlier mentioned, when the plaintiff's son Alan and his wife left for New Zealand at the beginning of 2008, the land was left to neighbours to look after. The fence was still on the land at that time. But the defendant said there was no fence on the land when he built his house close to Christmas of the same year. In other words, someone else must have removed the fence between the time the plaintiff's son Alan and his wife left for New Zealand and the time the defendant built his house on the land. The plaintiff has not proved this part of her claim to the required standard. It is therefore dismissed.

(d) Claim for coconut trees

31. Again there are evidential difficulties with this part of the plaintiff's claim for damages. It is not clear form the evidence how many coconut trees were growing on the plaintiff's land that were removed by the defendant. There was also no evidence from the plaintiff as to the age or condition of the coconut trees in 2008. This is relevant evidence for the purpose of assessing damages.

32. The defendant in his evidence said that many coconuts trees on the plaintiff's land were removed for the extension of the Faleolo International Airport. The coconut trees that were removed were mainly in a damaged condition. He also said that some of the coconut trees appeared to be more than ten years old while others appeared to be about 30 years old. 

33. What is clear from the evidence is that the defendant did remove some of the coconut trees that were growing on the plaintiff's land when he built his house. But the age, condition, and the number of such coconut trees are far from clear. The onus is on the plaintiff to prove her claim for damages to the required standard. I will award only $500 to the plaintiff under this part of her claim.

(e) Claim for consequential loss

34. Again there are evidential difficulties with this part of the plaintiff's claim for damages. Counsel for the plaintiff in her closing submissions said that the plaintiff made six return taxi trips form Apia to the land as a direct consequence of the trespass by the defendant. Each return trip cost $60. There was no oral evidence from the plaintiff as to how many taxi trips she made to the land or the taxi fares. The number of such trips and taxi fares only came up in the closing submissions of counsel.

35. If reference is made to the plaintiff's affidavit evidence, she mentions only two trips to the land when she returned from New Zealand at the beginning of 2009 after she had heard about the defendant building his house on the land. She does not even mention in her affidavits that those trips were by taxi.

36. Be that as it may, I accept that on the affidavit evidence by the plaintiff she did make two trips from Apia to the land because of the trespass by the defendant. Whether those trips were by taxi or private transport the plaintiff did incur expenses in this regard. I award the plaintiff $120 under this part of her claim.

(f) Claim for general damages for mental and emotional distress

37. The plaintiff in her affidavit evidence said she suffered distress and anxiety through worrying about what has happened to her land. She therefore claims general damages for non-pecuniary loss due to mental and emotional distress. 

38. The evidence on this part of the plaintiff's damages claim for damages is rather slim but I accept that the plaintiff must have suffered distress and anxiety as a direct consequence of the defendant trespass on her land. I also bear in mind that awards of general damages for distress or anxiety in actions for trespass to property in other jurisdictions have been towards the low side: Attorney General v Taunoa [2005] NZCA 312, para [169]. I award the plaintiff $500 under this part of her claim.

39. There is no other claim for damages.

Conclusions:

40. (a) The defendant is ordered to dismantle and remove his Samoan guest house from the plaintiff's land and to vacate and give up possession of the land to the plaintiff in two months. If, however, the parties can reach agreement that the defendant leaves his house on the land for the plaintiff, appropriate arrangements be made for the price of the house to be paid by the plaintiff.

(a)	Special damages of $12,000 for the concrete posts, concrete foundation, and walls plus $500 for coconut trees and $500 for the footpaths are awarded to the plaintiff against the defendant. This is a total of $13,000 for special damages.

(b)	There is no award for the fence as this part of the claim has not been proved.

(c)	Consequential loss of $120 is awarded to the plaintiff for transport to her land.

(d)	General damages of $500 are also awarded to the plaintiff for mental and emotional distress.

41. Counsel to file submissions as to costs in 10 days.

CHIEF JUSTICE