SUPREME COURT OF SAMOA
Attorney General v Namulauulu [2013] WSSC 72

Case name:  Attorney General v Namulauulu
Citation: [2013] WSSC 72
Decision date: 12 September 2013
Parties: 
ATTORNEY GENERAL on behalf of the Independent State of Samoa (Plaintiff) and TUUTASIA SAVELIO NAMULAUULU of Vailele, Widow. (Defendant)
Hearing date(s): 8 and 9 August 2013
File number(s):  CP 0312
Jurisdiction: CRIMINAL
Place of delivery: MULINUU
Judge(s): CHIEF JUSTICE PATU FALEFATU SAPOLU
On appeal from:
Order:
Representation: 
M T Lui and S Ainuu for plaintiff
Defendant in person
Catchwords: 
licences, leases, easements, profits à prendre, life estates, equitable estoppel,
Words and phrases:
trespass to land, action for recovery of land, ejectment, bare licence, contractual licence, tenancy at sufferance, 
Legislation cited:
Cases cited:
Alii and Faipule of Stapuala v Samoa Trusts Estates Corporation (2012)
Moffat v Sheppard (1909) 9 CLR 265
Thomas v Sorrell (1673) Vaugh 330
Text Books
The Law of Torts in New Zealand (1997) 2nd ed by Todd et al
Land Law in New Zealand (2004) by Hinde McMorland and Sim vol 2

Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: CP 0312

IN THE MATTER OF
Rule 17 of the Supreme Court (Civil Procedure) Rules 1980.

BETWEEN:
ATTORNEY GENERAL on behalf of the Independent State of Samoa.
Plaintiff

A  N  D
TUUTASIA SAVELIO NAMULAUULU of Vailele, Widow.
Defendant

Counsel:	M T Lui and S Ainuu for plaintiff
	Defendant in person
Hearing:	8, 9 August 2013
Judgment:	12 September 2013

JUDGMENT OF SAPOLU CJ
Nature of proceedings
1.	Essentially, these proceedings are concerned with an action by the plaintiff for recovery of the land occupied by the defendant and her family as well as other people who had been allowed onto the land by the defendant’s late husband.  Savelio Namulauulu.  This is clear from the prayer for relief in the plaintiff’s amended statement of claim and in the written submissions of counsel for the plaintiff.
The land in dispute
2.	The disputed land is at Vailele-uta.  It used to be owned by the Western Samoa Trusts Estates Corporation now called Samoa Trusts Estates Corporation since the official name of the country was changed from “Western Samoa” to “Samoa”.  It is five acres in area.  It is described as:
“ALL that piece or parcel of land containing an area of two point naught two three five hectares 2.0235 ha (5a.-0r.-00p) more or less, situated at Vailele-uta in the District of Tuamasaga described as Parcel 3240 being Part of Parcel 3038 Flur XII Upolu and part of the land registered in Volume 29 Folio 18 of the Land Registered of Samoa as the same is more particularly delineated on Plan 6341 deposited in the Office of the Chief Executive Officer of the Ministry of Natural Resources and Environment and Meteorology (MNREM), Apia”.
3.	In or about 1994, the disputed land was conveyed by the Western Samoa Trusts Estates Corporation as it then was to the Samoa National Provident Fund (SNPF).  In 2007, the SNPF conveyed the land to the Independent State of Samoa by deed of conveyance no. 28068.  The deed of conveyance was accordingly registered under the Independent State of Samoa.  In 2008, the Land Titles Registration Act 2008 disestablished the deeds system of registration of land and established the Torrens system of registration.  The disputed land has since been registered under the Torrens system under the name of the Independent State of Samoa.
Occupation of the disputed land by the defendant, her family and others 
4.	The defendant testified that her family had started occupying the disputed land in 1990 with the support and consent of the late Head of State, His Highness Malietoa Tanumafili II.  That was because during the 1980’s her late husband had served his sentence of imprisonment at the Head of State’s residence carrying out chores for His Highness.  They built a partly Samoan and partly European style house. From the photos shown to the Court it does not appear to be a very expensive house. They also cultivated the land by planting crops like taros and bananas on the land.
5.	Then in 1994, when the land was conveyed to the SNPF, her husband obtained permission from the then manager and assistant manager of the SNPF to continue living on the land. When the land was conveyed by the SNPF to the Independent State of Samoa in 2007, the defendant, her husband and her family continued to live on the land.  Other people who had been allowed by the defendant’s husband onto the land had also built houses and a church on the land.  They also cultivated parts of the land.
6.	The affidavit of Ms Filisita Heather of the Ministry of Natural Resources and Environment (MNRE) who is also the Secretary of the Land Board states that on 6 October 2011 she wrote to the defendant’s husband to stop any further developments on the land and to vacate the land as the Government has plans to use the land as a reserve.  The letter also mentions that there had been numerous previous advices from the MNRE to the defendant’s husband to vacate the land but he has failed to do so.  The same affidavit also annexes a letter dated 8 November 2011 from the chief executive officer of MNRE ordering the defendant’s husband to stop any further developments on the land and to vacate the land.  This affidavit was confirmed on oath by Ms Heather at the trial.
7.	Thus it appears from the said letters that for some time prior to 6 October 2011 and 8 November 2011, the MNRE had been telling the defendant’s husband to vacate the land.  However, the defendants’ husband and his family did not leave the land.
8.	Then on Sunday 1 January 2012, Ms Heather was advised that the defendant’s husband has died.  Being concerned that the defendant’s husband would be buried on the land, Ms Heather sent a letter dated 1 January 2012, to the defendant which was delivered by the police.  A second letter was again sent by Ms Heather, with police assistance, a few days letter to the defendant.  In both letters, the defendant and her family were advised that they were not permitted to bury the defendant’s husband on the land. That did not stop the digging of the grave of the defendant’s husband on the land.  
9.	The MNRE, through the Office of the Attorney General, then sought and obtained an interim injunction from the Court to stop the digging of the grave and the burial of the defendant’s husband on the land. It has been alleged by the plaintiff that the interim injunction was disobeyed by the defendant and her family and the defendant’s husband has been buried on the land.   Proceedings for civil contempt are now pending against the defendant.
The relevant law
(a)	Licence 
10.	It appears to me that the occupation by the defendant, her late husband and their family of the disputed land was on the basis of a bare licence until the land was conveyed from SNPF to the Independent State of Samoa in 2007. I will now refer to the law on licence as it has arisen on the facts of this case. A general licence as opposed to statutory licences, leases, easements, profits à prendre and life estates is defined and explained in Land Law in New Zealand (2004) by Hinde, McMorland and Sim vol 2, para 18.001, p. 779 where the learned authors state:
“The classic definition of a licence is that given in Thomas v Sorrell (1673) Vaugh 330 at 351, 124 ER 1098 at 118 per Vaughan CJ:
‘A dispensation or licence properly passeth no interest, nor alters or transfers property in anything, but only makes an action lawful which without it had been unlawful:
“Fundamentally, a licence is a permission given by one person to another allowing the other to do some act which would otherwise be unlawful.  Such permission if given in respect of entry into land or other acts contrary to a landholder’s rights, does not create any interest in the land or proprietary right which is binding on third parties taking from or under the licensor.  It creates only personal rights against the licensor, the extent and nature of these rights being determined by the particular circumstances.
“It may be no more than a defence to an action in trespass for acts done during the term of the licence, and a right to a reasonable period in which to leave the land after the revocation of the licence.  On the other hand, it may be supported by valuable consideration and be part of a contractual relationship, or be a part of a set circumstances giving rise to an equitable estoppel, and in either case give much wider rights against the licensor”
11.	As the licence in this case is a bare licence, I will refer again to Land Law in New Zealand (2004) by Hinde, McMorland and Sim vol 2, para 18.004, p. 782 where the learned authors state:
“A bare licence is a privilege granted by one person to another to do something which would otherwise be unlawful, but unaccompanied by any circumstances which might give rise to a right in the licensee that the licence should not be revoked at any time.  Such a situation will exist where there is no contract and no circumstances giving rise to an equitable estoppel.  In Moffat v Sheppard (1909) 9 CLR 265, 268, Isaacs J commented:
‘The respondents cannot advance their case beyond that of a merely revocable licence unless they can establish a grant of the interest in the land, or an agreement for valuable consideration specifically enforceable, or conduct raising an equity in their favour.  Putting it briefly, they must show grant, contract or estoppel”.
12.	When discussing events which are contrary to the nature of a licence and whose occurrence will automatically determine a licence, the learned authors of Land Law in New Zealand  (supra) at para 18.014, p. 796 state, inter alia: 
“Certain events are contrary to the essential nature of a licence, and their occurrence will determine any licence, whether bare or contractual.  It is a fundamental characteristic of a licence that it cannot bind third parties so that any alienation, voluntary or involuntary, by the licensor of his or her interest must determine the licence automatically”.
(b)	Action of trespass to land and action for recovery of land
13.	In Alii and Faipule of Stapuala v Samoa Trusts Estates Corporation (2012) (unreported judgment of this Court delivered on 26 January 2012 with reasons for judgment delivered on 17 April 2012), I discussed the action of trespass to land and the action for recovery of land.  Some of the things I say in this judgment will therefore be a repetition of what I said in Alii and Faipule of Satapuala v Samoa Trusts Estates Corporation (supra).  What needs to be understood is that a plaintiff who is not in possession of the land at the time of the trespass, but has only a right to immediate possession, cannot bring an action in trespass against the defendant if he is refused entry onto the land by the defendant.  The proper action for the plaintiff to bring is one for recovery of land.  Even though there is that connection between trespass to land and the action for recovery of land, the action for trespass to land is different from the action for recovery of land.
14.	The tort of trespass to land is explained in The Law of Torts in New Zealand (1997) 2nd ed by Todd et al where the learned authors state at para 8.2, p. 461:
“A person commits the tort of trespass to land if he or she, without justification, negligently or intentionally:
	“(i)  	enters upon land in the possession of another;
“(ii)  	causes anything or person directly to enter upon land in the possession of another;
“(iii)	remains on the land after one’s right to be there has ceased;
“(iv)	allows a thing to remain on the land after its right to be there has ceased; and/or
“(v)	interferes directly with another’s profit  à prendre”.
15.	The only part of the above definition of the tort of trespass to land which would seem to be relevant to the factual situation in this case is where it says that a person commits the tort of trespass to land if he or she, without justification, negligently or intentionally remains on the land after one’s right to be there has ceased.  I will elaborate on this later in this judgment.
16.	Further on in The Law of Torts in New Zealand (1997) 2nd ed by Todd et al, the learned authors state at para 8.4, p.466:
“The action of trespass to land is primarily intended to protect possessory rights, rather than rights of ownership.  Accordingly, the person prima facie entitled to sue is the person who had possession of the land at the time of the trespass.  Actual possession is a question of fact, which consists of two elements:  the intention to possess the land and the exercise of control over it to the exclusion of other persons”.
17.	The above passage shows that even if the defendant who is trespassing on the land remains on the land after his or her right to be there has ceased, the plaintiff would still not be able to bring an action for trespass to land unless he or she had possession of the land at the time of the trespass.  In this case, the plaintiff has never had possession of the disputed land at any time.  What it has is a right to immediate possession of the land as the current owner of the land.  It therefore cannot sue for trespass to land.
18.	Furthermore, in The Law of Torts in New Zealand (supra), the learned authors state at para 8.8, pp 501-502:
“[A] plaintiff cannot sue in trespass unless:
“(i)	he or she had possession at the time of the trespass - the normal situation; or
“(ii)	he or she had at the time of the trespass a right to the immediate possession of the land and, before bringing an action, he or she had acquired actual possession by entry upon any part of the land – trespass by relation.
“This leaves without remedy the person who had at the time of the trespass a right to the immediate possession of the land but who has not been able to acquire actual possession by, no doubt because of the trespasser’s continued wrongful presence on the land.  Not surprisingly, the law has not been prepared to allow such an anomaly.  A remedy is provided by a separate action called an action for recovery of land, formerly an action for ejectment.  It is this action which a landlord must use if his or her tenant holds over and the landlord is unable to effect a peaceable entry.
“In order to succeed in this action, the plaintiff must prove that, at the time of commencing the action, he or she was entitled to immediate possession of the land, but was being denied such possession… in actions for recovery of land, the plaintiff has no possession, but the defendant has”.
19.	In Alii and Faipule of Satapuala v Samoa Trusts Estates Corporation (2012) para 22, p 12 (unreported judgment of this Court delivered on 26 January 2012 with reasons for judgment delivered on 17 April 2012), this Court said:
“22.  An action brought by a plaintiff for recovery of land presupposes that it is the defendant who is in possession of the land and not the plaintiff.  It would be a contradiction in terms for a plaintiff to bring an action for recovery of land if he is already in possession of the land.  So an action for recovery of land is brought by a plaintiff who is out of possession [but has an immediate right o possession].  The forerunner to this action was the action for ejectment”.
Law applied to the facts 
20.	It was alleged by the defendant at trial that her husband and herself first occupied the disputed land in 1990 and were allowed to live on the land by the late Head of State, His Highness Malietoa Tanumafili II.  Then in 1994 when the land was conveyed to the SNPF her husband sought and obtained permission from the then manager and assistant manager of the SNPF to continue living on the land.  If this is true, then the defendant, her late husband and their family were never in adverse possession of the land.  That is because they continued to live on the land with the permission of the owner, the SNPF. 
21.	The defendant and her family were occupying the land on the basis of a bare licence.  It was not a contractual licence because the defendant and her family provided no consideration for their occupation of the land.  The evidence also does not show any circumstances that had given rise to any equitable estoppel in favour of the defendant or her family.
22.	Up to 2007, before the land was conveyed by the SNPF to the Independent State of Samoa, the defendant and her family were still occupying the land pursuant to the bare licence granted by the SNPF.   The conveyance of the land by SNPF to the Independent State of Samoa in 2007 automatically determined the bare licence that existed between the SNPF and the defendant’s husband and family.  That is because the conveyance of the land by SNPF to the Independent State of Samoa automatically determined the licence as any licence, whether bare or contractual, cannot bind a third party.   The Independent State of Samoa would be a third party to the licence between the SNPF and the defendant’s husband and family.  After the determination of the licence, the legal status of the defendant and her family seems analogous to that of a tenancy at sufferance.  However, it is not necessary for me to express a conclusive view on that point as it is not decisive to this case.   
23.	Whatever is the true legal status of the defendant and her family after their licence was automatically determined by the conveyance of the land from SNPF to the Independent State of Samoa, I am of the clear view that their occupation of the land at that time could be determined at anytime by the new owner of the land.  Such a determination was effected when the defendant’s husband was first advised by the MNRE before 7 October 2011 to vacate the land.  The continued occupation by the defendant, her husband and their family of the land made them trespassers.
24.	As the present owner of the land, the Independent State of Samoa, has a right to bring proceedings by way of an action for recovery of land when the defendant and her late husband repeatedly refused to comply with the advices from the MNRE to vacate the land.
Other people on the land
25.	The people who were allowed by the defendant’s husband to move on to the land and live on the land have filed undertakings that they would vacate the land if the Court decides to order the defendant to vacate the land.
Conclusions
26.	(a) The defendant and her children are ordered to vacate the disputed land within 3 months   and to remove their house, other structures, and crops which are on the land.
(b) The defendant is also ordered to remove the grave of her late husband and his body from the disputed land within 3 months.
(c) All other people who are occupying the disputed land and have filed undertakings to vacate the land if the defendant is ordered to vacate the same are also ordered to vacate the land in 3 months and remove their houses, every structure they have built on the land, together with any crops they have planted on the land.
27.	As the plaintiff has succeeded in his claim, counsel for the plaintiff to file a memorandum as to costs in 10 days.  The defendant may also file a memorandum as to costs in 10 days if she wishes to do so.

CHIEF JUSTICE

Solicitors
Attorney-General’s Office, Apia, for plaintiff