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Helu v Tupouniua [2024] TOSC 99; CV 63 of 2023 (19 December 2024)

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

CV 63/2023

Siosifa Paula HELU

PLAINTIFF

-v-

Sione Harvard TUPOUNIUA

DEFENDANT

ORDERS MADE BY: COOPER J

DATE OF ORDER: 19 DECEMBER 2024

THE COURT ORDERS THAT:

1. Mr. Helu’s action is dismissed
2. Mr. Tupouniua’s counter claim is dismissed
3. Mr. Helu to bear his own costs and pay 80% of Mr Tupouniua’s costs.
   

REASONS

1. This case concerns a dispute over the rights in a hotel and associated buildings that was known as the Mosimani Building.
2. The land it is situated is an area of approximately 1 rood 12.2 perches (approximately 1321 square meters), being Lot 1 S/Plan 4457 (D/G 288/73). The Court Book has a copy of the plan at section C, Tab 1 at page 31.
3. It is at the junction of Hala Fatefehi and Hala Mateialona, Kolofo’ou. It is now the shell of the building that stands on the site. The walls stand, otherwise the windows, doors and all fixtures and fittings have been stripped from it.
4. The land the buildings are on belongs to Sione Harvard Tupouniua, it being his town allotment.

Background

5. On 25 November 1993, Mr. Tupouniua mortgaged the land and the buildings for approximately $50,000.00 to the Bank of Tonga (Section C, Tab 1, page 32 Court Book). There was a further variation to that mortgage on 17 February 1994, the total amount being $490,729.00.
6. Mr. Tupouniua defaulted on his mortgage and the Bank took possession of the allotment and buildings.
7. All of this is accepted by both parties.
8. The bank purported to sell a sublease to Lord Nuku. On 3 June 2005, Lord Nuku then sold a sublease to Mosimani Helu (Part C, Tab, pages 1 – 7 Court Book). The legality of that agreement is disputed by the defence.
9. In any event, Cabinet approved that sublease on 21 June 2005. This is when the buildings and land became known by their current name; the Mosimani Buildings.
10. Over time the Mosimani Building ceased to function as a business or at all and has fallen into disrepair and appears to be of no use at all at this time.

The dispute before the Court

11. Siosifa Helu, son of Mosimani Helu, claims the he has an interest in the buildings. Mr. Tupouniua counter-claims that the buildings are his.
12. Siosifa Helu’s claim is predicated upon his having had the sublease transferred to him.
13. He claims this happened in 2023.
14. The original sublease was granted in either 2005 or 2006. It is not clear to me which. It is said the agreement for the sublease was on 3 June 2005 and the date of the sublease ran from 3 August 2006.
15. In any case, the evidence of Mr. Helu at trial was this

My father had the lawful right over Mosimani Trading, he was the person [who] signed the sublease.

16. Page 52, Tab 1 Bundle C 1 of the Court Book was referred to by Mr. Helu at that point.
17. Based on all this Mr. Helu’s claims are for
    • Damages for the conversion and false claims in the property by Mr. Tupouniua
    • An order that the lease will not expire until November 2023
    • And costs

Consideration

18. If the lease granted by Lord Nuku was to Mosimani Helu, who died in 2008, how is it that Siosifa Helu could be granted a sublease by his father, her husband?
19. There has been nothing placed before me that would point to the fact that Siosifa Helu’s father had a legal interest or control over the Mosimani Building either ab initio or upon her demise, so that he could legally grant a sublease to his son or indeed to anyone.
20. Any suggestion that cabinet approved the sublease to Siosifa Helu is beside the point.
21. Only a person vested with a legal interest in a property can pass on an interest in it. Cabinet approval is, with respect, merely a statutory formality that forms an adjunct to any such contract, though of course a necessary one.
22. Regrettably for Siosifa Helu that means he never had any legal interest in the Mosimani Building as his father had no power to grant him a sublease. Therefore, all his claims are without any basis.
23. Turning next to Sione Tupouniua, he claims that the sale of the land and the buildings on it to Lord Nuku was unlawful.
24. It is argued on his behalf that the Bank could not sell the land to Lord Nuku because of the stipulations under section 109 Land Act:

(1) In the event of the mortgagee wishing to take possession of the lands mortgaged following default by the mortgagor of any of the obligations to the mortgagee set out in the mortgage deed or in any other document lodged with the Minister in terms of the next succeeding section the mortgagee shall give notification both to the mortgagor and to the Minister of his intention to take possession of the lands mortgaged and may thereafter take possession at any time after the expiry of 14 days from the date of said notification.

(2) After a mortgagee has taken possession, in terms of subsection (1) of the land mortgaged, he may either retain possession for the unexpired term of the mortgage lease or he may sub-lease the lands for the unexpired term of the mortgage lease, or he may sell the lease or sub-lease if the mortgaged land is a leasehold.

25. Given that Siosifa Helu never had any legal interest in the land and or the Mosimani Building, any argument as to the disposal of the land by the Bank is not with Siosifa Helu, but with the Bank and those they contracted with.

Conclusion

26. Siosifa Helu’s claims must fail as he never had a legal interest in the land and or its buildings.
27. Whereas the Plaintiff’s case was run on the basis of his having a legitimate interest in those parts of the building that were added to by his mother, effectively rights in the scrap from the demolished structures, this does not form any part of the Statement of Claim, so I make no ruling in respect of those arguments.
28. Sione Tupouniua claim that the Bank could not dispose of the mortgaged property save under the terms of section 109 Land Act is a matter that he must pursue with those interested parties, it is not a matter that can be litigated against Siosifa Helu, given he had no legal interest in the property.
29. In respect of costs, I conclude that Siosifa Helu must pay all his costs and 80 % of Sione Tupounuia’s. A certain part of the claim was concerned with Sione Tupounuia’s counter claim, but that was in fact a small part of the case and in any event, he did not instigate the litigation.
    

COOPER J
SUPREME COURT

19 DECEMBER 2024
NUKU’ALOFA