Finau v Heimuli [2014] TOSC 15; CV 11 of 2013 (27 June 2014)

IN THE SUPREME COURT OF TONGA
CIVIL JURISDICTION
NUKU'ALOFA REGISTRY

CV 11 of 2013

BETWEEN:

SEINI FINAU
Plaintiff

AND:

SIONE MAPUMEIHENGALU HEIMULI
Defendant

L.M. Niu SC for the Plaintiff
Mrs F. Vaihu for the Defendant

JUDGMENT

1. This action is the latest chapter in a long saga of litigation between the parties stretching back to 1997.
   
2. The Plaintiff is the oldest daughter of 'Olive Uikilifi (who died in 1980) by his second wife Mele who died in July 1994. Prior to her death she held a widow's estate on a town allotment Nailililili registered in 'Olive's name.
   
3. The Defendant's grandparents were 'Olive and his first wife 'Olieti.
   
4. Upon Mele's death the allotment reverted to the Crown. In 2007 after protracted legal proceedings it was finally granted to the Defendant. An appeal against that grant was dismissed by the Court of Appeal in September 2012 [AC 9 of 2012].
   
5. Following Mele's death the Defendant applied for Letters of Administration of her property (which of course, did not include the allotment itself). According to the Letters granted to her, this property consisted of:
   

"1. One old wooden dwelling house [valued at] $800.00

2. One old shop buildings $200.00

3. One concrete water tank $100.00"

6. On 1 October 1994 the Plaintiff's siblings Sela, 'Ana and Talite agreed to surrender their claims to the property to the Plaintiff. It is not in dispute that the house, the shop and the water tank belonged to the Plaintiff after her mother's death. They were, however, located on land which reverted to the Crown in the year her mother died.
   
7. According to paragraph 10 of Mr Niu's written submissions filed on 13 May 2014:
   

"In 1997 the Court ordered the Plaintiff (and her family) to vacate the allotment on which the three properties were situated until the question of ownership of the allotment was decided. The Plaintiff locked up the properties and vacated the allotment."

"In about February 2000 the Defendant authorized and instructed his cousin and her husband (Kanongata'a) to occupy and use the dwelling house and water tank without the consent of and without consulting the Court or the Plaintiff, and they did".

8. On 5 May 2000 the Supreme Court (C129/97) gave permission to Palu and Fakalelu Kanongata'a and their immediate family to continue to reside in and use the premises subject to conditions "until the Honourable Minister for Lands has made a final determination of the right to this land ... ". According to Mr Niu, the final determination was made on 30 August 2006.
   
9. Following the Minister's determination and the grant in 2007 the Plaintiff did not remove the house, the shop or the water tank from the allotment. Presumably, she hoped that her appeal against the grant of the land to the Defendant in the Land Court would be upheld, that a lease over the land would be granted to her and that she would consequently be able to resume habitation and use of her property that she had vacated in 1997. As it turned out, however, the appeal was not ultimately successful and she was forced to abandon all hope of returning to the land. This action is a claim for "mesne profits" by the Plaintiff against the Defendant for the use and occupation by the Defendant or his agents of the house, the shop and the water tank.
   
10. On 5 December 2012 the Plaintiff demanded payment of rent for the dwelling house calculated at the rate of $500 per month for 67 months since March 2007 and rent of the shop at the rate of $300 per month since January 2002 (January 2003 in the Statement of Claim) for 130 months, the two claims amounting to $33,500 and $39,000 respectively, totaling altogether $72,000.
    
11. The trial took place on 18 March 2014. Mr Niu called four witnesses. The first witness told the Court that she was renting a three bedroom house for $300 per month at Fasi. She and her husband had improved the house otherwise the rent might have been $1000 per month. The second witness told the Court that she rented a shop out for $600 per month. The third witness was the Plaintiff's elder sister who confirmed that her mother left a house and a water tank "that is all". She had agreed to renounce her share in favour of the Plaintiff.
    
12. The Plaintiff's evidence was that she and her husband and six children all lived in the house with her mother Mele after 'Olive died. Mele died in 1994 in New Zealand. The Plaintiff applied for the Letters of Administration. Her lawyer had placed the values on the property in the estate however she had signed the application and agreed with the valuation. She and her family moved out of the house in 1997. The Defendant's cousin Fakalelu moved into the house in about 1999. This was arranged by Ani, 'Olive's daughter by his first marriage. She accepted that Fakalelu had renovated the bedrooms and painted the house.
    
13. The Plaintiff was shown document P-23 a photograph of a lean to shop. This, she told the Court, depicted a new shop which had replaced the old shop which was demolished in 2013. She was not told before the old shop was removed and did not know what had happened to the materials.
    
14. In cross-examination the Plaintiff agreed that the house which 'Olive had built was worn down but stated that 'Olive had renovated it. She also agreed that Palu and Fakalelu had claimed to have spent a lot of money on the house. She had never asked for rent during the years that the land case was proceeding through the Courts. She agreed that she was unable to pay the costs awarded against her either by the Land Court or the Court of Appeal and that she had offered the house, the shop and the water tank in lieu of the payment of those costs.
    
15. The final witness was the Defendant. He lives in America and his mother in law is living in the house on the allotment. The Defendant stated that the house had been built by his grandparents but was already deteriorating in 1969. Palu and Fakalelu had substantially improved the house. They renovated or installed a bathroom, ceilings, doors, "the rear end" and the roof. Since his mother in law had moved in further renovations or replacements had been made to the floors (he had fallen through the floor on one occasion), to the windows and to the doors "the whole building was renovated".
    
16. Asked about the ownership of the house, the shop and the water tank the Defendant stated his view that whoever won the land would also take these. His mother Ani had applied for Letters of Administration but her application was put on hold pending the outcome of the land case. The Defendant told the Court that "although I have been in conflict with the Plaintiff for over 20 years about the property it has never before [today] been revealed that Letters of Administration over Mele's estate had been granted to the Plaintiff".
    
17. At the conclusion of the evidence both counsel agreed to file written submissions. I am grateful for the submissions filed. Having considered the evidence and the submissions I find the position to be as follows.
    
18. The house was built by 'Olive. The shop was built either by 'Olive or by Ani and her husband Semisi. The water tank was installed prior to 'Olive's death. On 'Olive's death intestate Mele acquired the house by virtue of Section 16 of the Probate and Administration Act (Cap 16) but the water tank and the shop were prima facie divisible among his children (whether all, legitimate or illegitimate is not clear). Upon Mele's death the only claimants to her estate (which comprised the house, the shop and the water tank), were the Plaintiff and her siblings. At the time the estate vested in the Plaintiff it was worth a total of $1,100.00; the house was worth $800, the shop was worth $200 and the water tank was worth $100.
    
19. In 1994 the allotment reverted to the Crown. At no time either prior to or after that date could the Plaintiff be considered as an heir to the allotment either apparent or presumptive for the simple reason that she was a married woman before her mother's death. The best that she could hope for was the defeat of the Defendant's claim and the grant of a lease to her. Once her license to occupy the land granted to her by her mother came to an end with her mother's death, her only right to the chattels on the land, the house, the shop and the water-tank was to remove them, a right similar to that of a lessee to remove houses and other improvements from the land prior to its reversion to the lessor. In fact, the Plaintiff decided not to exercise that right, presumably because she hoped that the proceedings in the Land Court would ultimately result in a decision in her favour. Unfortunately, those proceedings, as has already been seen, were not finally resolved until 2012, that is, 15 years after she was ordered to leave the land following its reversion to the Crown.
    
20. At no time since the land reverted, has the Plaintiff had any right to the land except to access it in order to remove her chattels from it, a right to be exercised within a reasonable time of the land's reversion. Whatever that reasonable time might have been, it is plain that by 2007 it had expired. The situation therefore was that the right to enjoy the benefits of the ownership of the chattels had been abandoned.
    
21. In these circumstances my view is that the Plaintiff's claim is unarguable. A claim to have been deprived of the fruits of letting the house and the shop cannot be maintained by a Plaintiff who had no ability to exercise that right.
    
22. On the evidence it is clear to me that in any event the house, in the condition in which it was left by the Plaintiff, was barely habitable and in no state to be let out. I accept the Defendant's evidence that it was old and dilapidated. According to the Plaintiff's own evidence it was renovated by 'Olive however that must have been prior to 1980, when he died. After that date, the renovations which were substantial were carried out and paid for by the Defendant or his agents. It seems likely that the condition of the shop was similar and led to it being pulled down in 2013. Mr Niu did not try to argue that the water-tank could have been let out. If, as I find, the house and the shop, as left by the Plaintiff on the land, were in such a poor condition that they could not be let out then being deprived of the opportunity to let them out cannot attract compensation.
    
23. During legal argument I expressed doubt about the Plaintiff's entitlement to recover mesne profits, it being my understanding that mesne profits are merely damages for trespass arising from a previous relationship of landlord and tenant. Mr Niu referred to a passage in Clerk & Lindsell on Torts (paragraphs 23.52 in the 16th Edition) in which it was stated that "mesne profits are compensation for the value of the use of occupation of the premises ... extending to all loss suffered by the Plaintiff". Unfortunately, Mr Niu overlooked the preceding paragraph in which it is stated that:
    

"In an action for recovery of possession of land the Plaintiff may join a claim for mesne profits".

however:

"If recovery of land is time-barred by adverse possession the right to recover mesne profits is lost, just as is the right to recover rent (Mount Carmel Investments Ltd v Thurlow [1988] 1 WLR 1078; Re Jolly [1900] UKLawRpCh 151; [1900] 2 Ch 616)".

24. In my view, the Plaintiff, having lost the right to occupy the land in 1997, a claim for mesne profits for the use and occupation of the land, or the premises situated thereon is misconceived. In my opinion given the circumstances, neither of the authorities referred to by Mr Niu in his written submissions assists the Plaintiff.
    
25. Before leaving the matter, I wish briefly to refer to the costs awarded against the Plaintiff in the previously closely related proceedings which remain unpaid. Under RSC O.17 r1(b) the Court may, on the application of a Defendant, stay an action if it appears that the Plaintiff may be unable to pay the costs of the Defendant if ordered to do so. From the Plaintiff's evidence that is the situation in this case. Counsel are reminded that it is not only where the Plaintiff is ordinarily resident overseas that the Court will entertain an application to stay.
    
26. Finally, and for the record, I should clarify that in the second sentence of the first paragraph of my judgment of 22 June 2012 in LA 25 of 2010 I stated that the Plaintiff was living in the house on the allotment. That was incorrect; as has been seen, she vacated the allotment in 1997.
    

Result: The Plaintiff's claim is dismissed.

The Defendant is to have his costs, to be taxed if not agreed.

Dated: 27 June 2014.

CHIEF JUSTICE

N. Tu'uholoaki
27/6/2014.