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Vine v Tuvalu Cooperative Society Ltd [2015] TVHC 2; HC Civil Case 1.15 (13 March 2015)

IN THE HIGH COURT OF TUVALU
At Funafuti
Civil Jurisdiction

HC. Civil. Case no. 1/15

Between:

Semi Vine
Plaintiff

v

Tuvalu Cooperative Society Ltd (TCS)
Respondent

BEFORE THE JUDGE

Mr. Afele Kitiona for the Plaintiff.
Ms. Nele Semu for the Respondent.

Reasons for Judgment

I can take these claims and counter-claims only part of the way to conclusion. The land in question is native land. Only the Lands Court has original jurisdiction over land disputes (see s 3(3)(d) of the Superior Courts Acts). The High Court has jurisdiction only on appeal and these proceedings are not an appeal. All the High Court can do is to make findings of fact and consequent declarations.

Fortunately the facts are few and not in dispute. Oral evidence was not necessary. Counsel gave me the facts during oral argument and neither counsel disputed what the other counsel had put about the facts.

The plaintiff is the owner of a piece of land known as Lotomua. In 2005 he entered into an agreement to lease part of the land to the defendant. The lease was approved by the Minister.

Clause 8 of the lease:

"The lessee shall not sub-let the land or any part thereof without the written consent of the landowner which consent shall not be unreasonably withheld."

In June 2012 the lessee, without any reference to the lessor, sub-leased part of the leased land to the National Bank of Tuvalu.

Although I can make no finding, in the absence of evidence, it seems that the lessee made a profit on this transaction: the rent the lessee was paying to the lessor was less than rental the Bank was paying to the lessee.

Clearly the lessee has breached clause 8 of the lease: it did not seek the consent of the lessor, let alone have his consent.

Ms. Semu's explanation for this breach is that members of the committee of the Co-operative Society thought that they were sub-leasing not the land itself but only the building on the land: consequently they did not need the lessor's consent. This was a mistake. Once a building is built on land it becomes part of the land so that in leasing the building the Co-operative were leasing not only the building but the land on which it stood.

Declare that the defendant is in breach of clause 8 of the lease agreement. The plaintiff is entitled to whatever remedy the Lands Court considers just.

There is more bad news for the defendant. In the counter claim the defendant/plaintiff by counterclaim alleges it has spent monies on renovation of the building and claims that amount from the plaintiff/defendant by counterclaim. This amount may not be recovered by the counter claimant. If one does work on the land owned by another. The benefit of that work flows to the land owner because the renovation has become part of the owner's land. That is the Common Law and counsel have not argued that the Common Law has been altered in Tuvalu by statute. The counter claim should be dismissed in the Lands Court.

On the question of costs there is some good news for the defendant. These

proceedings have been taken in error in the High Court. The High Court does not

have Jurisdiction.

On the facts given to me the plaintiff should succeed. [I emphasize, however,

that it is for the Lands Court to come to a final decision: I have expressed only an

opinion on the facts I have been given] On the other hand proceedings should not

have been taken in the High Court but in the Lands Court.

The Claim and the Counter-claim are dismissed. No order as to costs

Date 13th day of March 2015.

_____________________
Hon. Robin Millhouse QC
JUDGE OF THE HIGH COURT OF TUVALU