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Piukala v Fonohema [2002] TOCA 3; CA 13 2002 (23 July 2002)

IN THE COURT OF APPEAL OF TONGA
ON APPEAL FROM THE LAND COURT
NUKU’ALOFA REGISTRY

APPEAL NO. CA. 13/2002

BETWEEN:

KELEPI PIUKALA

Appellant

AND:

VILIAMI MA’ILEI FONOHEMA
Respondent

Coram: Burchett J
Tompkins J
Beaumont J

Counsel: Mr S. Tu’utafaiva for the appellant.
Mr Laki Niu for the respondent.

Date of hearing: 17 July 2002
Date of judgment: 23 July 2002

JUDGMENT OF THE COURT

INTRODUCTION

[1] This is an appeal from a judgment of the Land Court (Ford J) ordering specific performance of an agreement to surrender a lease. In order to understand the issues that arise on the appeal, essentially questions of law (including a jurisdictional question), it will be necessary to explain first the nature of the cases sought to be made by the parties respectively in the Land Court, as follows:

THE PLAINTIFF’S (RESPONDENT’S) CASE IN THE LAND COURT

[2] By his statement of claim, the plaintiff (the respondent on the appeal) pleaded, relevantly, this case against the defendant (the appellant):

• The appellant is a law practitioner and is the holder of a town allotment called ‘Iteni’ situated at Ha’ateiho, Tongatapu (“the allotment”).
  
• On 1/8/2000, the appellant advertised in the ‘Taimi ‘o Tonga’ newspaper which is circulated weekly throughout the Kingdom and overseas the following notice (in the Tongan language):
  

“NOTICE

TOWN ALLOTMENT TO RENT, LEASE OR OWN ABSOLUTELY

I have an ‘api which is situated at Ha’ateiho, its size is 1r 24p [for] a person who wants to rent, lease or own absolutely. Situated on it is a brick house with 4 bedrooms plus master room (private facilities) fully furnished with double beds in each room & etc, large lounge / sitting room fully furnished and also a conference table with 8 chairs and etc. kitchen with stove, fridge & etc, 3 toilets / bathrooms, a 3000 gallon cement water tank. You are welcome to inspect.

...

Make contact as soon as possible to telephone 29-098”. (par.3)

• The respondent contacted the appellant about the Ha’ateiho ‘api and inspected the house and its contents in accordance with that advertisement, as he had by then decided to move back (from the United States) with his wife and children and live in Tonga. That ‘api is the allotment. After negotiating, the respondent and the appellant agreed in September 2000 as follows:
  
  • (a) that the respondent would pay $20,000 as deposit, and upon such payment, the appellant would hand over to him a letter of surrender signed by him and his heir, Kelepi Nuku Piukala, by which the appellant would surrender the allotment in order that the respondent would apply to hold it as his town allotment.
    

(b) that in addition to handing over the letter of surrender the appellant would also hand over possession of the allotment and the brick house with all the furniture and contents as they had been inspected and agreed, together with the appellant’s motor car registered no. C7697.

(c) that the respondent would pay the balance of the purchase price of the house, its contents and the car, that is $36,000, over 10 years, without interest, at $300 per month;

(d) that the appellant would pay and clear all debts for electricity, telephone and water used by him on the allotment prior to the date of possession. (par.4)

• The appellant prepared and gave a written agreement to the respondent which the appellant assured the respondent, was confirmation of what they had agreed, as outlined in par. 4 (above). In fact, it was not in accordance with their agreement, but the respondent signed it, upon the assurance of the appellant that it was. It was dated 12 September 2000. It did not make any mention of any furniture, the car or even the house, nor of the debts for the electricity, telephone or water. The respondent did not know that, because the appellant kept all copies of the agreement, and told the respondent that he could get his copy and the letter of surrender from the ANZ Bank when the respondent deposited the $20,000 into the appellant’s bank account.
  
• In pursuance of the verbal agreement, the respondent paid $17,000 into the bank account on 14 September 2000 and $3,000 on 20 November 2000.
  
• On or about 22 November 2000, the appellant asked the respondent to let him have some of the furniture (to give as presents to his daughter who was getting married), and that he would reduce the purchase price of the house to allow for the furniture to be taken. He also asked that he stay on in the house until the wedding. The respondent disagreed, unless the reduction was in writing and the value agreed to by him. The appellant told him he would give him the price reduction in writing.
  
• On or about 29 November 2000, without having given the price reduction in writing and without the knowledge or consent of the respondent, the appellant removed most of the furniture and contents of the house.
  
• On 30 November 2000, the appellant informed the respondent that he could have possession of the allotment and house, and the respondent and his family took possession of them on 1 December 2000. Upon discovering the absence of most of the furniture, the respondent asked the appellant for them and for possession of the car. The appellant told him that he would give them the price reduction for the furniture in writing, but that the motor car was not part of the sale or transaction, and that he was not giving it to him. The appellant has not given any price reduction in writing, or verbally, to the respondent for the furniture, and he has kept the car. The furniture and contents which the appellant took (as valued by the respondent and then specified) had total value of $23,000.00.
  
• The respondent further discovered that the appellant had a debt of $533.00 for electricity and of $396.00 for telephone service used by him on the allotment, which the respondent has had to pay to avoid disconnection. The appellant was informed of this and promised to reimburse the respondent, but has not done so.
  
• The respondent has also asked the appellant for the letter of surrender of the allotment as agreed in the agreement, but he has refused to give it until the respondent has paid him the balance of $36,000, either right away, or at $300 per month for the next 10 years.
  
• The respondent obtained a copy of the agreement from the bank and was shocked to find what is written in it, the appellant having misrepresented the terms contained in the written agreement.
  
• On 7 April 2001, the appellant, with several private security men, went to the allotment and began to remove the respondent’s furniture from the house. The respondent was overseas at the time, and his wife was physically pushed aside and shouted at by the appellant to get out of his house. She and her children tried to stop the appellant but he pushed and shoved them aside.
  
• The appellant brought, maliciously, criminal prosecutions in the Magistrates’ Court against the respondent’s wife for alleged assault in connection with the attempted eviction. This caused further distress and anxiety for the respondent, his wife and children.
  
• On 9 May 2001, the appellant caused further distress and anxiety and great inconvenience to the respondent, his wife and children, by disconnecting the supply of electricity and telephone service to the house on the allotment.
  

[3] The respondent then sought this relief against the appellant:-

“1. An order that the appellant give to the respondent a letter of surrender, which shall be signed by the appellant, his wife and his eldest legitimate son, agreeing that the allotment with deed of grant book 140 folio 30 be surrendered in favour of the respondent;

2. An order that, in the event that the respondent is registered as holder of the allotment, the respondent pay to the appellant a balance remaining, after deduction of the damages and costs to be awarded herein, of the sum of $36,000, at the rate of $300 per month, without interest.
   
3. An order that, in the event that the appellant’s wife or his eldest legitimate son, or Cabinet, does not sign or consent to the surrender, the appellant shall forthwith refund to the respondent the sum of $20,000, and, further, pay damages to the respondent in the sum of $2,500.00, with interest on both sums from the date of this order until payment of the same at 10% per annum;
   
4. An order that until the sums in 3, above, and the costs of the proceeding are paid, the respondent and his wife and children are entitled to remain in occupation of the allotment ...”
   

THE DEFENDANT’S (APPELLANT’S) DEFENCE IN THE LAND COURT

[4] The appellant answered the statement of claim relevantly as follows:

• “3. Paragraph 3 of the Claim is not (sic). The house is a 4 bedroom house and one of them is the master bedroom. Furthermore, the (appellant) says that the house was advertised as ‘fully furnished’ for interested people to inspect but the furniture to be included in the transaction depended on the price a person is willing to pay.”
  
• Paragraph 4 of the Claim was “admitted”, save that -
  
  • (a) The appellant had no knowledge of the decision by the (respondent) to move back with his wife and children and live in Tonga.
    

(b) The agreement reached between the appellant and the respondent was put into writing, read by them and signed by the parties on 12 September 2000 after agreeing that it was a written confirmation of their agreement.

(c) “(i) The (respondent) was advised that the value of the allotment, house and all furniture and contents of the house is $100,000.00. But because the (respondent) advised the appellant that he (the respondent) only has $20,000.00 and could not afford $100,000.00 it was agreed that the (respondent) takes the allotment and house for $50,000.00 without the furniture and contents.

(ii) The $6,000.00 in the $56,000.00 being the price set out in the agreement was to be paid by the (respondent) because the (appellant) agreed to allow the (respondent) and his family to occupy the house and allotment whilst paying off the $30,000.00 at the rate of $300.00 per month for 10 years.

(iii) The furniture and part of the contents left by the (appellant) in the house to be used by the (respondent) were only because of love and sympathy by the (appellant) towards the (respondent) and his family in their wish to occupy the house.

(iv) The car registration no.C7697 was never part of the agreement between the (respondent) and the (appellant). However, it was indicated by the (appellant) to the (respondent) that there may be times when the (appellant) is out of the country and the car may be left with the (respondent) until the (appellant) returns to Tonga.

(v) In January 2001 the (respondent) asked the (appellant) about the said car and the (appellant) wrote a letter dated 12 January 2001 to the (respondent) confirming his oral advice to the (respondent) that the car is not part of their agreement.

(vi) The matters of the electricity, telephone and water bills were understood by the (respondent) and the (appellant) (to be) that once they are received by the (respondent) he would give them to the (appellant) for payment, because the bills for the month of November 2000 were not received yet by the (appellant) when he moved from the house on 30 November 2000. These matters were not considered by the Parties to be of real concern because their main concern were the allotment and the house.”

...

• In answer to para. 5 of the claim, the appellant pleaded:
  

“(a) The (appellant) prepared the draft of the Agreement on his own computer.

(b) The (appellant) then discussed it with the (respondent) who read the agreement on the computer screen in the presence of the (appellant). The (respondent) agreed with the contents of the agreement before it was printed out for both the (respondent) and the (appellant) to have another look at it. On agreeing with its contents the (respondent) signed it in the presence of the (appellant) and Siosi Piukala, who witnessed their signatures.

...

(d) The (appellant) was at no time under the impression that the (respondent) did not understand the written agreement before he signed his name to it.

...