By Tupuola Terry Tavita

An amendment bill to stop the alienation of private (freehold) and public land was tabled this week in the House.

According to Prime Minister Tuilaepa Sailele Malielegaoi who tabled it, under the current Limitation Act 1975, a caretaker has legal claim of any such land if the owner is away for over 12 years. The current limitation on government land is 60 years.

The bill, the Prime Minister said, also applies to government land which “essentially is private land”.

The Prime Minister said that too many landowners have been dispossessed of their land when they are absent overseas.

“It is the common practice in Samoa that a relative turns up from the village, say Sione, and asks Mika , the landowner for some land to temporarily settle on while his children attend school in Apia.

Mika shows him a piece of land as well as another one for him to plant banas and talo to feed his family. Some years later Mika and his children leave for New Zealand while Sione and his kids look after the property.

Both Mika and Sione pass away and when some of Mika’s kids come back to Samoa, they are told by Sione’s kids to get lost as the land now belongs to Sione and his kids.

“This amendment bill ensures that the land will forever belong to Sione and his lineage.”

The Prime Minister said that many urban families have been faced by this dilemma. They spend some years overseas and find themselves landless when they return to Samoa.

A question was raised in the House if the amendment applies to government land. The concern is that many villages are farming, or settling, on government land.

The Prime Minister responded that, under the law, Government or public lands is essentially private land.And that the amendment to the law is to protect government lands from being alienated.  

THE BILL

Introduction

The Limitation Amendment Bill 2011 (“Bill”) proposes to amend the Limitation Act 1975 (“Act”) to remove concept of adverse possession from application in Samoa.

Explanation

The objective of the bill is to remove unfair concept of adverse possession, which limits the right of a dispossessed owner of freehold or government land and to recover his, her or its land.

For freehold land, the limitation period is 12 years (section 9(2) of the Act) and for government land, the limitation period is 60 years (section 9(1) of the  Act).

The Act sets up adverse possession as a shield against the registered owner of freehold or government land who seeks to recover possession of their property after the relevant limitation period has expired. 

However, the application and effect of adverse possession is a relatively complex legal and negative legal notion that can often have unforeseeable effects.

Adverse possessions claims generally compel all parties to commit to a full hearing of all matters in dispute. Available evidence suggests that adverse possession is a highly significant doctrine in practice in Samoa.

For instance, reported decisions in Samoa over the last decade where adverse possession claims were considered are numerous.

A large number of cases have been heard by the Superior Courts and in the main, the cases are largely determined by the facts of each particular claim/defence.

The Bill therefore aims to amend the relevant sections of the Limitation Act 1975 to ensure that adverse possession no longer applies in Samoa. This means that the rights of a dispossessed owner of freehold or government land to recover his, her or its land is not limited y any limitation period.

Clauses

Clause 1: –   provides the short title and commencement date of the Act. The enacted Bill (Act) will commence on the assent date.

Clause 2:- proposes to amend section 2(1) of the Act by inserting the interpretation of additional phrases, which need to be interpreted as a result of the amendments proposed by the Bill.

Clause 3:- specifies the proposed scope of application of the Bill in two-folds-(1) it does not apply to relevant actions filed with the Supreme Court, 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 the Act (i.e. the Bill after it is passed) commemced.

Clause 4:- amends section 8(1) of the Act to correct a reference from the repealed Land Ordinance 1959 to the Lands, Surveys and Environment Act 1989 and the Land Titles Registration Act 2008.

Clause 5:- inserts a substitute provision for the current section 9 of the Act, which authorizes adverse possession in Samoa. Clause 5 disallows the usage of adverse possession by any person in Samoa to acquire or register a right, title or interest in or to land adverse to or in derogation of the title of a registered owner cannot be extinguished by any statute limitation.

Clause 6:- amends section 11(3) of the Act to disqualify the application of section 11 of the Act to estates or interests created by adverse possession.

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