By Linny Folau

A civil dispute between two parties, over the rights and control over a building that was known as the Mosimani Building in Kolofo’ou, was dismissed by a Supreme Court judge.

The case was brought by the plaintiff, Siosifa Paula Helu (son of the late Mosimani Helu) against Sione Harvard Tupouniua (on whose town allotment stands the building) as defendant.

Justice Cooper in a ruling on 19 December stated that this case concerned a dispute over the rights in a hotel and associated buildings that was known as the Mosimani Building located on an area of approximately 1 rood 12.2 perches (approximately 1321sq meters).

It stands on the junction of Hala Fatefehi and Hala Mateialona, which is now the shell of the buildin on the site. The walls stand, otherwise the windows, doors and all fixtures and fittings have been stripped from it.

The judge stated that the land the buildings are on belongs to Tupouniua, it being his town allotment.

On 25 November 1993, Mr. Tupouniua mortgaged the land and the buildings for around $50,000 to the Bank of Tonga. There was a further variation to that mortgage on 17 February 1994, the total amount being $490,729. He defaulted on his mortgage and the Bank took possession of the allotment and buildings.

The bank therefore sold a sublease to Lord Nuku. Then on 3 June 2005, Lord Nuku then sold a sublease to the late Mosimani Helu.

“The legality of that agreement is disputed by the defence. 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. 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.”

Both fail

“Meanwhile, Helu claimed the he has an interest in the buildings. Mr. Tupouniua counter-claimed that the buildings are his.’

Helu’s claim was predicated upon his having had the sublease transferred to him, which he claimed happened in 2023 with the original sublease granted in either 2005 or 2006, said the judge.

“It is not clear to me which. It was said the agreement for the sublease was on 3 June 2005 and the date of the sublease ran from 3 August 2006. In any case, the evidence of Mr. Helu at trial was that his father had the lawful right over Mosimani Trading, he was the person [who] signed the sublease.

“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,” he stated.

The judge stated if the lease was granted by Lord Nuku was to Mosimani Helu, who died in 2008, how was it that Siosifa Helu could be granted a sublease by his father, her husband?

“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 into or upon her demise, so that he could legally grant a sublease to his son or indeed to anyone.

“Any suggestion that cabinet approved the sublease to Siosifa Helu is beside the point. 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,” he added,

“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.”

As for Tupouniua, the judge stated he claimed that the sale of the land and the buildings on it to Lord Nuku was unlawful.

“It was argued on his behalf that the Bank could not sell the land to Lord Nuku because of the stipulations under section 109 Land Act. 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,” he stated.

The judge then concluded that Helu’s claims must fail as he never had a legal interest in the land and or its buildings.

“His case ran 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.

“As for Tupouniua’s 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.”

In respect of costs, the judge concluded that Helu must pay all his costs and 80% of Tupounuia’s. A certain part of the claim was concerned with 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.