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Finau v Heimuli [2015] TOCA 6; AC 24 of 2014 (31 March 2015)

IN THE COURT OF APPEAL OF TONGA

CIVIL JURISDICTION AC 24 of 2014
NUKU'ALOFA REGISTRY [CV11 of 2013]

BETWEEN:

SEINI FINAU
Appellant

AND:

SIONE M. HEIMULI
Respondent

Coram : Salmon J
Moore J
Blanchard J
Tupou J

Counsel : Mr Niu SC for the Appellant
Respondent in person

Date of Hearing : 23 March 2015
Date of Judgment: 31March 2015

JUDGMENT OF THE COURT

[1] The Chief Justice, from whose decision this appeal is brought, described the action as "the latest in a long saga of litigation ..." We agree with this assessment. From 1997 until 2012, when this Court found against the appellant, she fought a battle in the Land Court to prevent the respondent from obtaining title to land on which was situated a house and other buildings inherited by the appellant from her mother. In 1997 she was ordered to leave the land following its reversion to the Crown.

[2] As already indicated the appellant was ultimately unsuccessful in this litigation. The current proceedings, issued after the above mentioned Court of Appeal decision, sought to recover damages, described in the statement of claim as "mesneprofits", relating to the occupation by third parties, but permitted by the respondent, of the house and an adjoining shop.

[3] The damages claimed were calculated by reference to rents paid for similar property. In the case of the house and a water tank, this calculation was from the expiry of an order of the Court permitting the continuing occupation by the respondent's nominees. The rental claimed for the shop was for a longer period apparently from the date of the use of the shop by the respondent's wife's mother.

[4] Evidence was given at trial of what was said to be the rental of comparable buildings. It appears that at the time the court permitted the continuing occupation of the house by the existing occupants no provision was made for any compensation to the appellant. The appellant instructed her then solicitor to take proceedings to evict the occupiers but no such proceedings were taken.

[5] The Chief Justice dismissed the claim finding that a claim for mesne profits was misconceived. He said that at no time since the land reverted to the Crown has the Respondent had any right to the land except access to it to remove her chattels (the house and any other moveable buildings). He said that right must be exercised within a reasonable time and that such a time had expired. The right to enjoy the benefits of the ownership of the chattels had expired.