Loni, In re [2024] TOSC 65; PA 41 of 2022 (28 August 2024)

IN THE SUPREME COURT OF TONGA
PROBATE JURISDICTION
NUKU’ALOFA REGISTRY

PA 41 of 2022

IN THE MATTER
of the Probate Act

AND IN THE MATTER
of an application by ‘Ana Loni for Letters of Administration in respect of the estate of the deceased, ‘Asaeli ‘Afasa Loni.

RULING

BEFORE: ACTING LORD CHIEF JUSTICE TUPOU KC

Appearances: Mr S. Fili for the Applicant
Ms A. Kafoa for Respondent

Date: 28 August, 2024

1. On 27 September, 2022, Mrs ‘Ana Loni (“Applicant”) filed an application for letters of administration over her husband, ‘Asaeli ‘Afasa Loni’s (“Asaeli”) estate. It is accepted by both parties that he died intestate on 20 January, 2022.
2. The Applicant is lawfully entitled to retain what she owned in her own right at the time of her husband’s death and one third of her husband’s property with the remaining two thirds to be divided equally amongst their children.
3. ‘Asaeli’s estate consisted of the following:

TDB Saving Account No. 149862-S1 $ 2,785.02

BSP Saving Account No. 2001260559 $ 5.61

Fibre Glass Fishing Boat $23,000.00

Yamaha Boat Engine $31,986.80

Boat Safety Gears $11,397.00

Fishing and safety gear $ 8,401.85

TOTAL $77,576.28.

4. The Respondent, Halatoa Loni, is ‘Asaeli’s brother. He is challenging the Applicant’s application in respect of the Fibre Glass Fishing Boat only. He claims to be ‘Asaeli’s business partner and is a joint owner of the boat, therefore, he is entitled to take the boat. He further relies on a loan that he and ‘Asaeli took from the Tonga Development Bank in the amount of $8,401.85.

The Evidence

5. The Applicant and her son Tala’ofa Loni gave evidence on her behalf. The Applicant was married to ‘Asaeli for 27 years. She and 5 of their 6 children survived ‘Asaeli.
6. Her evidence explained that ‘Asaeli was an electrician and traded under Loni Safety Electric. He also owned a boat named “Otupaea”. She did not deny that the Respondent often worked together with the deceased until cyclone Harold damaged the “Otupaea”.
7. Through aid for cyclone recovery, ‘Asaeli received a 26 ft fibreglass boat. Evidence was produced of the monies received in the sole name of ‘Asaeli for the boat. Specifically there were documents from Ma’ake Fibreglass Products of $23,000 for the boat, Vahenga Fili ‘Eua 11 from EM Jones Ltd in the amount of $31,986.80 for a Yamaha Boat Engine and DataLine Systems in the amount of $11,397 for safety gear, totalling $66,383.8 0.
8. The Applicant accepts that the Respondent was ‘Asaeli’s co-borrower for the loan he relies on. She did not deny that part of the repayments were made on his behalf and is willing to repay any such amount to him. She stated that the loan was taken out for the purposes of obtaining fishing and safety gear for the boat.
9. She told the Court that after ‘Asaeli died, she was contacted by the boat builders to take the boat. She authorised her son, Tala’ofa Loni who was in Tongatapu to do that.
10. Tala’ofa Loni is 27 years old and lives in Popua. He is the Applicant and ‘Asaeli’s son. His evidence was that he returned from Samoa in 2018 and worked with his father from 2019-2020. He helped his father operate his whale watching business as a guide while his father was the skipper. At the time, he said his uncles were not working with his father. ‘Asaeli then travelled with him to Tongatapu to put him in a school to train as a skipper for his business.
11. As for the new boat, Tala’ofa said that it had not been used at the time of his father’s death; it was still with the builders. On his mother’s directions he took the boat from the builders.
12. Halatoa and his brothers subsequently took legal action against him claiming they had a right to the boat in lieu of the loan repayments made toward ‘Asaeli and the Respondent’s loan. As a result, the boat was seized by the Bailiff. The parties later consented to return the boat to him for safe keeping.
13. In response to a question about his parents being separated, Tala’ofa said that they were living separately but he knew they kept in contact.
14. The Respondent, Halatoa Loni and his younger brother Sione Fatai Loni gave evidence on his behalf. Halatoa is 57 and lives at ‘Ohonua, ‘Eua.
15. The Respondent stated that he is a joint owner of the new boat with ‘Asaeli and is therefore entitled to its ownership and possession.
16. He explained that he and ‘Asaeli were business partners. They took out a loan together from the Tonga Development Bank as evidence of that partnership and stated they both worked to repay the loan.
17. The loan agreement was produced. He is named as a co-borrower. The amount borrowed is $8,401.85. The expressed purpose of the loan is “to complete fishing gear and safety material of the boat”. The Respondent accepts that this is the purpose of the loan.
18. Further, he stated that ‘Asaeli and the Applicant had separated for 5 years at the time of ‘Asaeli’s death. This is denied by the Applicant and Sione. The Applicant explained that ‘Asaeli was ill and had travelled to Tonga for treatment while she remained in ‘Eua with their children. ‘Asaeli lived with her mother in Tongatapu but they kept in contact. Her son, Tala’ofa confirmed the Applicant’s evidence.
19. Sione Fatai Loni’s evidence was that ‘Asaeli had asked him to repay the loan when he became ill. He said he stopped making payments in May 2022 when the matter came before the court.
20. He produced a total of 7 receipts for monthly payments of $300 starting from December, 2021 to May, 2022. The total payments made being $2,100.00.

Submissions

21. I have read the helpful submissions by Counsels for the parties.

Considerations

22. Section 11 of the Probate Act, vests all personal property in the Court from the death of an intestate until administration is granted.
23. Section 16 of the said Act vests the dwelling house on the town allotment, growing crops, pigs, poultry and ngatu in the widow regardless of the existence of any will. All remaining personal properties are divided pursuant to Schedule 1 of the Act.
24. Under Schedule 1, the Applicant is entitled to one third of ‘Asaeli’s personal property and the remainder are divided equally amongst their children. I understand this is what the Applicant has undertaken to observe if she is successful in this application.
25. Based on the evidence before me, the Applicant was legally married to ‘Asaeli at the time of his death. She is therefore entitled to bring this application with the consent of his next of kin, namely the children of their marriage. Their consent has been provided.
26. On the other hand, the Respondent’s assertion that he was joint owner of the new boat has, in my view, not been proven. In his viva voce evidence, he accepted that;
    1. the deceased was the sole owner of the “Otupaea”;
    2. this new boat was to replace the “Otupaea”; and
    100. the purpose of the loan he and ‘Asaeli took out was for fishing and safety gear.
27. Further, exhibits “G” for the fibreglass fishing boat, “H” for the Yamaha Boat Engine and “I” for the boat safety gears in ‘Ana’s affidavit of 27 September, 2022, all bear the sole name of the deceased. That is undisputed evidence that all of those items were intended for the deceased alone.
28. In her closing submissions and for the first time, Counsel for the Respondent raised estoppel as an additional ground for her client. She submits that section 103 of the Evidence Act applies and argues that the Applicant should be estopped from taking and/or selling the boat.
29. There are difficulties with this argument. Firstly, this was not raised in a manner that afforded the Applicant and her Counsel an opportunity to respond by way of calling evidence or present submissions in response. That, in of itself, is sufficient ground to disregard the argument.
30. However, Section 103 comprises of three subsections and therefore 3 distinct categories of circumstances from which estoppel could arise. Respectfully, the submissions fail to identify which of these the Respondent is pursuing.
31. In any event, there is no evidence from Halatoa or his witness of any alleged representation, promise or expression by the deceased which ought to have led them to believe that they would gain ownership or a share in the boat in the event of his death to give rise to a reliance on the doctrine of estoppel. The closest evidence of anything requested by the deceased was from Sione who said he was asked to repay the loan. Nothing in Sione’s evidence could establish that he was promised ownership of the boat or any part of it, if he complied with the deceased’s request. Sione himself does not lay claim to the boat. He was simply giving evidence to support the Respondent’s position.
32. The Respondent further urged the Court to take into consideration that the Applicant was separated from ‘Asaeli at the time he obtained the boat and at the time of his death. As mentioned, the Applciant denied this and the Respondent was unable to provide any further evidence to rebut the Respondent’s evidence. Nor did Counsel provide any authority for the court to consider the allegation of separation or its relevance in this application.
33. Lastly, relying on Re Alatini, deceased [1989]TLR 76, it was submitted for the Respondent that the Applicant had failed to establish her entitlement to the boat and therefore the boat is the property of the deceased’s alone. That submission is unreservedly accepted.
34. In Re Alatini, the widow was claiming one half share of part of her deceased husband’s estate. That was outside of the division set out in Schedule 1 of the Act and she was therefore required to establish her entitlement.
35. In this instant, the Applicant is not claiming ownership of the boat and is not required to establish such entitlement. She has applied for letters of administration to distribute her late husband’s estate according to law.
36. I find that she has met the requirements for this application.
37. There were two matters that remained unclear at the end of the trial. Firstly, the whereabouts of the fishing and safety gear for which the loan was granted, except for a letter from the Bank to state that those gears will be released, once the loan is settled.
38. Secondly, whether an executed Loan Protection Cover that was provided as part of the said loan applied. The Cover stated that in consideration of annual premium of 1.95% charged to the loan account, the bank at its discretion may forgive any unpaid balance at the date of ‘Asaeli ‘Afasa’s death.
39. I make note of the Loan Protection Cover and the fact that there is no claim made by the Tonga Development Bank against ‘Asaeli’s estate.
    

Result

40. The application by ‘Ana Loni for letters of administration over ‘Afasa ‘Asaeli Loni’s estate is granted and the Registrar is to issue the appropriate orders forthwith.
41. Costs are awarded in favour of the Applicant to be agreed or taxed.
    

P. Tupou KC
Acting Lord Chief Justice

Nuku’alofa: 28 August, 2024