Reid v Te'o [2001] WSSC 34 (14 February 2001)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

FONOTI PAT REID
of Lepea, Businessman
PLAINTIFF

AND:

SASA TE’O & AMY TREVIRANUS
both of Apia, Businesswomen
FIRST DEFENDANTS

AND:

LINE UP SURF SAMOA LTD.
A duly incorporated Company having its head Office at Apia
SECOND DEFENDANT

Counsel: Mr T.K. Enari for the Plaintiff
Mr S. Toailoa for the First Defendants
Mr T.V. Eti for the Second Defendant

Dates of Hearing: 26th April 2000
Date of Ruling: 14th February 2001

RULING OF JUSTICE VAAI

The plaintiff as lessor is seeking an order against the first defendants (lessee) and second defendant (sublessee) to vacate certain lands at Maninoa Siumu. He also seeks damages against the first defendant. The facts are as follows. The plaintiff is a beneficiary of an estate which owns approximately 21 acres of land by the sea at Maninoa Siumu and on part of the estate land measuring approximately 4 acres and 28.5 perches he built a resort. By written agreement dated the 28th February 1995 the plaintiff leased the resort to the first defendants commencing from the 24th December 1994 for 10 years at a rental of $80.00 per year with right of renewal for 10 years. Rental for the first 10 years have been paid in full. The resort comprises of 6 bungalows (or small Samoan fales), a bar and restaurant, and a 2-bedroom residence with private bathrooms.

The lessees are the wife and daughter of Leafa Vitale who was during the time the lease was executed a Cabinet Minister and it was Leafa Vitale who negotiated with the plaintiff the lease of the resort. According to the affidavit filed by the plaintiff the lease agreement did not contain what was agreed to between himself and Leafa Vitale. For instance in his written instructions to his solicitor to prepare the lease agreement the plaintiff asked for monthly rental of $1,000.00 per month. The plaintiff however has given no explanation orally or in his affidavit why his so called written instructions to his solicitor regarding rental payable is totally different from the rent in the written agreement. He states in paragraph 7 of his affidavit:

“Even though the document did not contain our agreement I signed it because I received and made use of the defendant’s money. It was certainly not my intention to review or extend such an unfair agreement.”

But as the evidence unfolds the plaintiff continued to request monetary advances from the defendant after the execution of the lease agreement so that it is difficult to accept the plaintiff’s contention that it was not his intention to review or extend the lease agreement.

Prior to the month of October 1998 the plaintiff visited the resort. By letter dated the 18th October 1999 the plaintiff through his Solicitor advised the first defendants that the lease has been terminated and they must therefore quit the premises immediately for the reasons:

(i) That the premises have been left in a state of disrepair contrary to clause 4 of the agreement; and

(ii) That the defendants have sublet the premises without notice to or the Consent of the Lessor.

The first defendants deny that the premises have been left in a state of disrepair and they also maintain that the plaintiff did consent in writing to the sublease. Essentially then the two issues for determination in this action are firstly whether the premises were left in a state of disrepair and secondly whether or not the plaintiff did consent to the sublease. I now turn to consider the two issues:

State of Disrepair:

Evidence in support of the allegation that the first defendants have left the premises in a state of disrepair came from the oral testimony and the affidavit of the plaintiff himself. He says that the premises were in good condition when the first defendants resumed occupation in December 1994 and when he inspected the premises prior to October 1998 it was in a bad state of disrepair with many of the furnishings missing. Attached to his affidavit, as exhibit is a list of items missing together with their estimated costs as well as the estimated costs of repairs to the buildings. As a result of his visit he made up his mind to evict the first defendants who were no longer in occupation of the premises. In respect of the bar and restaurant the plaintiff says that the roof was so bad that he could see the sky and in respect of the 2 bedroom residence the building was beyond repair. He left for overseas in October 1998 for a short visit and on his return he visited the premises again and found a man by the name of Mike doing some repairs to the premises. Nothing further was done by the plaintiff until October 1999 when he negotiated to lease the same land to other interested parties that he instructed his solicitor to terminate the lease with the first defendants. Although he denies under cross examination that it was the same piece of land that he negotiated to lease to other interested parties in October 1999, I am satisfied from the evidence that it was the same piece of land. Paragraph 21 of his affidavit states:

“I am concerned to conclude arrangements with the party with whom I have now been dealing with and to put them into quiet possession of the land. The interference of the defendants and their agents threaten to disrupt this.”

The first defendants deny that the premises were left in a state of disrepair; in fact they say that when they rented the resort they could see the sky through the roof. They in fact spent considerable time and money to repair the resort and they say there has never been any complaint from the plaintiff about the state of the premises until they received the letter dated the 18th October 1999 to vacate the premises. Before the receipt of the letter to vacate, the first defendants say the plaintiff often visited the office of Leafa Vitale and requested and did receive advances in rent. (It is acknowledged by the plaintiff in cross-examination he did visit the office of Leafa Vitale and received advances in rent).

In my view the plaintiff has failed to prove the allegation on the balance of probabilities as required in a civil claim. Firstly he has in his affidavit exhibited the estimate cost of the building beyond repairs without any detail breakdown how he arrived at the figure quoted and without any evidence whatsoever written or oral as to his competence in compiling such an estimate. Secondly he has in the same exhibit listed a number of items missing from the premises; but in perusing the lease agreement there are no such items listed in the schedule and again there is no evidence whatsoever as to how he compiled such a list of missing items. Thirdly if the plaintiff is correct that he did visit the premises in October 1998 and found it to be in a state of disrepair it is difficult to accept that he continued to request advances on rent (I accept on the evidence that he continued to request advances after October 1998). And fourthly he caused his solicitor to issue an eviction notice 12 months after his visit to the premises when he was about to conclude a deal to lease the same premises to a different party.

In any event, even if my findings of facts are erroneous, the plaintiff has failed to comply with section 118(1) Property Law Act 1952 which requires the plaintiff as Lessor before exercising the right of re-entry to give notice in writing to the first defendants as lessees specifying the breach and requiring the lessee to remedy the breach within reasonable time. There has been no such notice and the allegation must fail.

Consent to the sub-lease:

By deed of lease dated the 30th September 1998 the first defendants sub let the premises to the second defendants, and, in doing so they breached paragraph 3 of the agreement to lease which specifically stated that the lessees shall not assign or underlet or part with the possession of the premises or land or any part thereof.

By subleasing the premises the first defendants have exposed the lease to forfeiture and a cause for re-entry by the plaintiff. At common law an assignment of a lease in breach of a condition against assignment does not make the assignment nugatory, but merely exposes the lease to forfeiture (see Massard v Blight & Another (1950-51) CLR 423 and Garry Denning Ltd. v Vickers [1984] NZCA 100; (1985) 1 NZLR 567 (CA). But the first defendants are contending that prior to the execution of the sublease agreement there were several discussions with the lessor and the lessor did agree to the sublease. In fact a written consent to the sublease allegedly signed by the lessor and witnessed by one Fuaiupu Malifa has been produced to the court. Although the lessor concedes that the signature is very similar to his he denies it is his signature. He claims it is a forgery and a very good one too. Fuaiupu Malifa who witnesses the signature was at the time the Secretary at Cabinet Minister Leafa Vitale and she testified that the document was signed by the lessor in the office of the Minister in her presence. She knew the lessor because he often came to the office for monetary advances and she sometimes prepared the acknowledgment of advances and witnesses the lessor’s signature. In respect of the written consent to the sublease she did not type it herself nor dated it. She simply witnessed the signature of the lessor at the request of the Minister.

Since the first defendants are relying on the written consent the onus is on them to satisfy the court that the signature therein is in fact that of the lessor. I have had the benefit of comparing the signature of the lessor in the head lease with the signature in the written consent. Both signatures appear the same but the lessor says the slanting of the letters “t” in both are different. To decide whether the signature on the written consent is that of the lessor or not the court must choose between the credibility of the plaintiff and that of the witness Fuaiupu Malifa. Without the slightest hesitation I found the witness Fuaiupu Malifa to be honest and reliable and I accept her evidence without reservation. She has on a number of occasions witnessed the signature of the lessor when he called into the office of the Minister for monetary advances and in cross examination by counsel for the plaintiff she was unmoved in maintaining that she witnesses the signature of the plaintiff on a document relating to the Siumu lease. Accordingly I am satisfied that the lessor did sign the written consent and the allegation must also fail so that the claim by the plaintiff against the first and second defendants must fail. Judgment is given for the first and second defendants. The plaintiff is ordered to pay $1,000.00 costs to the first defendants and $400.00 to the second defendant.

JUSTICE VAAI