IN THE COURT OF APPEAL OF TONGA
ON APPEAL FROM THE SUPREME COURT
OF TONGA

APPEAL NO. 11/98

BETWEEN

'OLIVE MANGISI
Appellant

AND

'UNGATEA 'ILOLAHIA KOLOAMATANGI
Respondent

Coram:
Burchett J, Tompkins J, Beaumont J.

Counsel:
Mr Niu for the appellant 
Mr Tu’utafaiva for the respondent

Date of hearing :14 July 1999.
Date of judgment: 23 July 1999.

JUDGMENT OF THE COURT

The respondent is the widow of one Semisi Koloamatangi who died on 8 January 1994. During his life time, on 13 June 1986, he entered into an agreement with the appellant which was registered under the provisions of section 7 of the since repealed Contracts Act (Cap 26). The agreement provided that the appellant would, at her own expense, construct on a town allotment belonging to Semisi Koloamatangi a building in accordance with the agreement, to be "owned by Semisi Koloamatangi as his property solely without ‘Olive Mangisi having any share in any way". Further provision was made, by clauses 4 and 5, as follows:

"4. Semisi Koloamatangi permits ‘Olive Mangisi to operate a business in the said building for herself (‘Olive Mangisi) by paying rent to Semisi Koloamatangi, because it is his building, of $200.00 per month, and the rent is to be paid on the first (1) of every new month and so forth.

5. The length of time in which ‘Olive Mangisi is to operate business in the building of Semisi Koloamatangi already referred to is 20 years starting from 13/06/1986 and ending after 20 years."

By a subsequent agreement made 6 March 1987, the rent was varied to three thousand dollars per annum, to be paid annually, and Mrs Mangisi was permitted to "subrent the building ... to any person". The building was completed during the life time of the deceased, who received rent from the appellant under the agreement.

At a time subsequent to his agreement with the appellant, the deceased entered into an agreement with one , Linda Makoni which, inconsistently with the contractual rights of the appellant, purported to give her rights over the very allotment in relation to the construction of the building on which the agreement had been concluded with the appellant. Proceedings followed involving all three parties, in which the Privy Council held that the appellant's "prior agreement must prevail" to entitle her to performance of Semisi Koloamatangi's promises. He was ordered to pay the costs, both of the appellant and of Linda Makoni. This decision is reported as Makoni v Koloamatangi and Filipe [1990] Tongan LR 50, the appellant being there referred to under the name 'Olive Filipe.

After the death of the deceased, his widow, the respondent, obtained registration as title holder of her deceased husband's town allotment. No refund was made of rent paid in 1994, but the respondent rejected rent tendered in 1995. However, she accepted the rent paid by the appellant in 1996, it is said on legal advice.

The respondent brought proceedings in 1996 against the appellant in which she sought, amongst other things, a declaration that the building built by the appellant was the property of the respondent, an order that she have possession of the building, and an order that the appellant be evicted from it. The trial judge gave judgment in favour of the respondent, and from this judgment the appeal is brought.

At the hearing, the respondent relied, to establish her own title as the widow of the proprietor, upon s.80 of the Land Act (cap. 132).She claimed that this title overrode any rights of the appellant. In support of her contention, she referred to s.56 of the Land Act, the relevant part of which reads:

"The registered holder of a town or tax allotment may grant a lease over the whole or part of his town or tax allotment, provided that -

i) the consent of Cabinet has been obtained in the manner provided by this Act".

Her counsel points out that the contract between the appellant and the deceased received no consent under s.56.

But the appellant's answer seems to us to be valid. The contract was not and did not involve a lease. It conferred a permission or licence to operate a business in the building constructed by the appellant at her own expense. Implicit in that was a promise by the proprietor of the allotment, for valuable consideration, not to evict the appellant from the building, or to interfere in any way with access to it by the appellant and her customers. The rights the widow obtained under s.80 of the Land Act could not be greater than those of her deceased husband, through whom she obtained them. As Martin CJ said in Matavalea v Uata (unreported, Land Case 1/85), a very similar case:

"[S]he took only what her late husband held at the date of his death ; subject to any matters which affected the land then. She cannot be in a stronger position than the person through whom she claims. She is estopped from claiming possession in the same manner as [her husband]".

When Matavalea v Uata was taken on appeal to the Privy Council, the widow in that case attempted to rely on sections 12 and 13 of the Land Act, suggesting her husband's agreement, which she had initially confirmed, was illegal. But the Privy Council held those sections could not invalidate the dealing.

Quite apart from the effect of the original agreement with the deceased, the appellant is entitled to rely on the acceptance of a year's rent paid by her to the widow. That it was received on legal advice does not weaken, but rather strengthens, the conclusion that the widow made an election which should now debar her from maintaining ejectment against the appellant.

It is essential to keep in mind that the contract conferred no interest of any kind in land. It conferred on the appellant a licence to use the building. In Tonga, a building may be severed from the land on which it stands, so as not to constitute a fixture: Kolo v Bank of Tonga (Court of Appeal, Burchett, Tompkins and Beaumont JJ, unreported, 7 August 1998). In that case, the Court of Appeal referred to an earlier decision of Ward CJ in Bank of Tonga v Kolo (unreported, 21 April 1995) in which the Chief Justice stated that buildings in Tonga have been regarded as items of personal property rather than as forming part of the realty. The Court Appeal commented:

"Because of the Constitution of Tonga, and because of Tonga's traditions, the intricate law of fixtures and of accretions to land which applies elsewhere is not wholly appropriate to Tonga. Although all the implications have not yet been worked out, and their working out should be left to the process of development of the law of Tonga case by case, we think that the broad proposition stated by Ward CJ should be accepted. That means that it was open to Mr Kolo to pledge his house to the bank as an item separate from the land on which it stood."

For the same reason, it was open to the deceased to give an enforceable contractual licence to the appellant in respect of the building she constructed at her expense, by agreement with him, upon his land. True, it was to be his building, but subject to the terms of the contract. Neither the deceased, nor his widow claiming under him, could assert or accept entitlement to the severable structure built pursuant to the agreement and, while doing so, deny the appellant her rights under the same agreement.

There is no counter-claim, so the Court is not required to ascertain the precise limits of the appellant's rights; but at least they extend to a complete answer to the respondent's claim. The appeal must be allowed with costs ; the judgment and orders below must be set aside ; and in lieu thereof, it must be ordered that the proceeding brought by the respondent be dismissed with costs.

NUKU’ALOFA: 23 JULY 1999

Burchett J, Tompkins J, Beaumont J.