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Yang v Manoa [2016] TOCA 3; AC 22 of 2015 (8 April 2016)

IN THE COURT OF APPEAL OF TONGA
CIVIL JURISDICTION
NUKU'ALOFA REGISTRY

AC 22 of 2015
[CV 39 of 2014]

BETWEEN:

YUZHEN YANG
- Appellant

AND :

1. 'OLIONI MANOA
2. MATELITA MANOA
Respondents

Coram : Moore J
Handley J
Blanchard J
Tupou J

Counsel : Mr. L. M. Niu SC for the Appellant
Mr. S. Fonua for the First Respondent
Mrs. P. Taufaeteau for the Second Respondent

Date of Hearing : 29 March 2016
Date of Judgment : 8 April 2016

JUDGMENT OF THE COURT

Introduction

[1] This is an appeal from an interlocutory judgment of Scott J of 7 August 2015 given in the Supreme Court answering questions that had arisen in proceedings commenced by the appellant and another. Those questions raised an issue about the legality of an agreement concerning the occupation and use of a building. Scott J had earlier given a judgment, on 6 June 2014, in related proceedings involving the same parties in the Land Court concerning the jurisdiction of the Land Court.

The factual background

[2] The first respondent is the registered owner of a town allotment at Haveluloto Tohi 376 Folio 39 with an area of 759.6 m². The second respondent is his wife. He built, on the allotment, a retail shop measuring approximately 10' x 20' with a small room above it at the front part of his allotment abutting the street. He continued to live in his house on the allotment but operated a retail business from the shop and a taxi business from the room above.
[3] In 1998 he was approached by Meng Sen Tsay who wanted to rent the shop which by then had been extended. To that end, they executed a document entitled "Tenancy Agreement" on 29 June 1999. In terms, the agreement ran from 2 June 1999 to 1 June 2008. The word "premises" governed much of the operation of the agreement and was described in the following way: "The landlord is desirous of renting out a retail store at the frontage of land at Haveluloto opposite to Vaiola Hospital to the tenant for the purposes of retail store". The agreement identified the use that might be made of the premises by the tenant. It could not be used for any illegal purpose and the tenant could "not .... cause or permit a nuisance". The tenant was obliged to use the premises only for the purpose of a retail store. There was a clause dealing with alterations and additions to the premises which prevented the tenant from attaching any fixture or renovating, altering or adding to the premises unless he had the landlord's permission.

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