Lavea v Alii and Faipule of Vailele [2010] WSSC 71 (28 May 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

CP.63/06

BETWEEN:

LISONA T. LAVEA, of
Vaivase-uta, Self Employed
Plaintiff

AND:

ALII & FAIPULE OF VAILELE
represented by SAMOA SEMAOA POGAI, SATIAMALII PERESITENE,
TUIAFISO FELISE and SALEUPOLU TIOPE.
Defendants

Counsels: Mr P. Fepuleai for the plaintiff
Ms FV. Hoglund for the defendants

Judgment: 28 May 2010

JUDGMENT OF NELSON J.

[1] The plaintiff is the sub-lessee of two quarter-acre freehold parcels of land from the defendants pursuant to Deeds of Sub Lease dated 21 July 1983 registered under numbers 1687L/A and 1687L/B in the Land Registry office at Apia ("the subleases"). The defendant is recited in the subleases as being lessee pursuant to a Head Lease dated 29 June 1983 from Western Samoa Trust Estates Corporation ("WSTEC") subsequently Samoa Land Corporation ("SLC") and registered in the Land Registry office under no.1654L (the "Head Lease"). The Head Lease was for a period of 20 years and the subleases were for a period of 20 years less one day commencing 1 October 1982. The subleases were for a peppercorn rental payable annually in advance and there is no dispute the plaintiff has duly and punctually paid rental due under his subleases. All the leases have now expired but the evidence seems to indicate a replacement Head Lease has not yet been executed. The defendants however have sought renewal of the Head Lease and have paid the necessary rental to the Head Lessor and have been verbally advised their application has been approved. But no renewed head lease or substituted lease document was put into evidence and I deduce from that no formal document evidencing such renewal has therefore been concluded or drawn up.

[2] Prior to the execution of the subleases the plaintiff held a matai title in the village of Vailele. The title was conferred under the pule of the sa'o or titular head of the family one Te'omatavui Maisa (hereinafter "Te'o"). But at the time of execution of the subleases the plaintiffs title was being contested in the Lands and Titles Court so the subleases were actioned in his taulealea name. The challenge to the plaintiffs title succeeded and at some stage during the leasehold period the title was removed by the court.

[3] Also during that period differences arose between the plaintiff and Te'o leading to the plaintiffs banishment from the family by Te'o. Te'o advised the defendants of this fact and in or about 2001 the plaintiff was instructed by the defendants not to return to his lands, a decision which he said he faithfully obeyed. The plaintiff at the time of these proceedings was resident at Vaivase-tai and wheelchair bound.

[4] Prior to the expiration of the leases the plaintiff by letter dated 14 June 2002 wrote to the defendants requesting a renewal of his subleases pursuant to clause 7 thereof. Clause 7 provides as follows:

"7. IF the Lessor obtains a renewal of the Head Lease for a further term of twenty (20) years and if the Lessee shall during the term hereby granted pay the rent hereby reserved and observe and perform the covenants and conditions on the part of the Lessee herein contained and implied up to the expiration of the said term and shall have given notice in writing to the Lessor at least three (3) calendar months before the expiration of the said term of its desire to take a renewed lease of the premises hereby demised then the Lessor will at the cost of the Lessee grant to the Lessee a renewed lease of the said land for a further term of nineteen (19) years three hundred sixty four (364) days at such rental (being not less than the rental hereby reserved) as the Lessor and the Lessee shall then agree or failing agreement as determined by Arbitration in accordance with the provisions of clause 14 hereof and otherwise upon the same covenants conditions as are herein contained and implied except this present covenant for renewal."

Rental of $60 for the entire sublease period for both subleases was enclosed with the letter. The plaintiffs evidence was the correspondence and money was delivered to Samoa Semaoa, one of the defendants who at the time was secretary of the village land committee and with whom the plaintiff had dealt in relation to the lands. The plaintiff denied the defendants' evidence that these monies were subsequently returned to his wife together with a letter from the defendants advising his application to renew had been rejected.

[5] The defendants position is that they rejected the application because the plaintiff was no longer a matai of the village and no longer enjoyed the support of the sa'o of the aiga Te'o. Their witnesses also testified the plainttif was advised of this fact in writing not long after his request was sent in and this correspondence together with a $60 refund was hand delivered to his wife by representatives of the defendants. The defendants have been unable to produce a copy of that correspondence as the then secretary is now deceased but the representatives who delivered the letter gave evidence and were adamant that this was what occurred. I accept their evidence and in any event the plaintiffs evidence was that he had been verbally advised his application had been denied yet he took no efforts to seek a refund of his monies. A man this meticulous with records would have done so for the plaintiff is one of the few prudent matais who obtained a written sublease of his lands as compared to the licenses to occupy noted in two previous decisions of this court in relation to these former lands of WSTEC: see Faafulu v Sa [2000] WSSC 17 and Lima v Pone [2007] WSSC 70.

[6] The plaintiff now brings proceedings to enforce his right of renewal as per clause 7 of the subleases and seeking damages for what he claims are the unlawful actions of the defendants. He rests his case on the express words of clause 7 and says the Head Lease having in effect been renewed, the defendants are obliged to renew the plaintiffs subleases as the plaintiff has fully complied with his contractual obligations under clause 7. He said his banishment and his status as a non-matai are not reasons for refusing to renew as they are not a term or condition of the subleases. He also seeks a reversal of the banishment order and consequential damages in respect thereof but this was not really addressed by the evidence or in counsels submissions, the thrust of which targeted renewal of the subleases.

[7] The plaintiffs case stems from clause 7 of the subleases but the terms of that clause are as plaintiffs counsel correctly argues clear and express. Firstly renewal is conditional on the defendants obtaining "a renewal of the Head Lease for a further term of 20 years". Renewal of the Head Lease is a pre-condition to the operation of clause 7 and that is why the clause begins with the word "If". It is clear the right to renew only accrues on the renewal of the Head Lease and that it is not an automatic right of renewal. No duly executed renewal or any form of document evidencing such agreement on the part of the Head Lessor has been entered into evidence or produced before the court and the assertion that such a renewal has been effected which comes before the court second hand by a witness for the defendants should not be held sufficient proof of a renewed Head Lease for a further term of 20 years. The evidence does not satisfy me the terms sought have been approved by the Head Lessor, neither did the evidence address the terms and conditions of such approval which one would reasonably expect to be different, for example as to the fundamental issue of rent and other matters such as the use of the land given that it has changed owners. And if agreement on such issues cannot be reached, has there been a submission on the matter to arbitration? Is this the reason a final document has not been executed given that many years have elapsed since the renewal request by the defendants was "approved"? I also note there is no evidence that the defendants have exercised their rights under section 120 of the Property Law Act 1952 and sought judicial intervention in relation to renewal and their rights in respect thereof. There remain many unanswered questions and the evidence does not satisfy me that the defendants have as a matter of fact obtained a renewed Head Lease for a further 20 years on agreed terms and conditions.

[8] As noted by the Court of Appeal in construing an equivalent clause 7 in a lease in ET Oldehaver & Company Limited v Attorney General [1970-79] WSLR 159, 162, the nub of the matter is whether the lessee has ever been in a position where it could claim it has a completed contract to lease capable of performance. Until such renewal the legal status of the defendants would appear to be tenants at will or licencees and I find that the evidence of the existence of a renewed Head Lease or an agreement thereto is tenuous and insufficient and cannot be safely relied on.

[9] The plaintiff faces a further hurdle. It is also a clause 7 pre-condition that the plaintiff has during the lease term observed and performed "the covenants and conditions on the part of the lessee herein contained and implied". And one of these covenants and conditions is paragraph 5 of the subleases which provides:

"5. THE Lessee will not assign sublet or part with the possession of the said land or any part thereof without the consent of Lessor in writing had and obtained."

The plaintiffs own evidence was that because of the banishment he did not re-enter the lands from 2001 onwards. His further testimony was that the lands had been occupied by his sisters daughter Osa and her husband, a police officer named Tuli for many years. They were brought onto the land by him in 1983/1984 and an earlier ruling by Vaai, DCJ as he then was in Lisona Lavea v Tuli Levasa [2001] WSDC 1 shows that these parties occupied one of the plaintiffs parcels from that period until 2001 when pursuant to that decision following the suit of the plaintiff, they were evicted. The relevance of these matters is that it raises the issue of the compliance with paragraph 5 of the subleases as that paragraph prohibits the plaintiff from parting with possession of any part of the subleased lands without the defendants written consent. Such consent was never sought or obtained. Indeed it was the lack of consent of the sa'o of the family to the plaintiffs actions that led to disharmony between the plaintiff and his sa'o that appears to ultimately have led to his banishment from the family.

[10] The plaintiff therefore seems to have breached a covenant and condition of the subleases and he cannot be said to have fulfilled the second renewal pre-condition of having observed "the covenants and conditions on the part of the lessee herein contained and implied." This too would have the effect of disentitling him to a renewal of the subleases.

[11] Defendants counsel has pointed to another obstacle for the plaintiff. This is the requirement in clause 7 that the subleases be renewed "at such rental (being not less than the rental hereby reserved) as the lessor and the lessee shall agree or failing agreement as determined by arbitration". No such agreement was reached and no attempt was made by the plaintiff to negotiate the issue. He merely drew the unreasonable assumption that the rent would remain a peppercorn rental for the renewed term of another 20 years by attaching $60 to his renewal application. This is in clear breach of the terms of clause 7 which requires both parties agree to the new rental and if not then the matter should proceed to arbitration.

[12] A further hindrance to the success of the plaintiffs claim is clause 14 of the subleases that provides that any dispute is to be referred to arbitration:

"14. ALL differences and dispute which may arise between the parties hereto touching or concerning this Deed of Lease or any act or thing to be done suffered or omitted in pursuance thereof or touching or concerning this construction of this Deed of Lease shall be referred to Arbitration in Western Samoa by two arbitrators (one to be appointed by each party) and an umpire (to be appointed by the arbitrators before their entering upon the reference) in accordance with the Arbitration Act 1976 or any amendment thereof or re-enactment thereof for the time being in force."

This would include a dispute as to the effect of clause 7 and whether the plaintiff has a right of renewal where the Head Lease has not been renewed as required by the express term of clause 7. The plaintiff has chosen not to go to arbitration but has brought these proceedings. This appears in breach of clause 14. The question then of whether the court has jurisdiction to entertain his claim is very much a live issue but this was not addressed by counsel in their submissions and in the circumstances I need not go on to consider it further.

[13] All in all the plaintiffs claim cannot succeed. Having reached those conclusions it is not necessary to consider the issue of the impact if any of the plaintiffs banishment on his entitlement to renew. The question also of whether matai status can be implied into leases of freehold land situated in a village setting under the control of the Alii and Faipule as Head Lessees thereof should also remain open. And as the plaintiff did not forcefully pursue the issue of banishment that too remains a question writ at large. The plaintiff has not established he is entitled to renewed subleases pursuant to clause 7 thereof, his claim is dismissed.

[14] Judgment will be entered in favour of the defendants in this matter. The defendants are also entitled to costs. Defence counsel is to submit a memorandum regarding costs within seven (7) days hereof for approval by the court.

JUSTICE NELSON